PIL Regina

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Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012 Page 1 of 42 PUBLIC INTERNATIONAL LAW NOTES AND DISCUSSIONS (2009ED) 2-A 2012 (FR. JOAQUIN BERNAS) CHAPTER ONE: THE NATURE OF INTERNATIONAL LAW I. What is international law? Traditional definition: “The body of rules and principles of action binding upon civilized states in their relation to one another.” Entities governed: States (primarily), international organizations, individuals (Third) Restatement of Foreign Relations Law of the United States (Restatement): Considered by U.S. Courts as the most authoritative work on international law. Definition: “The law which deals with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.” Scope of international law: In the age of technological advancement and globalization, public international law (PIL) is rapidly expanding—new subject matters, changing political and social principles and new states and entities being added to the community of nations. Beyond the primary concern for the maintenance of peace, it extends to cover all the interests of international and even domestic life. Is it a law? The following reasons illustrate the arguments why PIL is not law, and why it is commonly disregarded: There can be no law binding sovereign states. No international legislative body. o United Nations (UN) General Assembly resolutions are generally not binding on anybody. No international executive to enforce legislation. o UN Security Council – intended to be an international executive; always prevented by veto power o No assured procedure of identifying violation— most of UN powers have reference to lawbreaking taking the form of an act of aggression or as a threat to peace, but there are many violations of PIL which are not of this nature. As a result, all the UN can do is censure. No central authority to make judgments binding on states o International Court of Justice (ICJ) – can only bind states when they consent to be bound National policy or interest is often preferred over international law. o National officials often find justification for the things they do. Above arguments are based on an exaggerated notion of sovereignty as embodying an individualist regime, but this is not the reality. Reality is social interdependence and the predominance of the general interest. Henkin: “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” Brierly: Law is binding because a reasonable man, whether as an individual or as part of a state, believes that order is preferred over chaos, and that order is the governing principle of the world. Final analysis : There is a general fundamental respect for law because of the possible consequences of defiance, either to oneself or to the larger society. International law is law because it is seen as such by states and other subjects of international law. Theories about international law: command theory, consensual theory, natural law theory Command Theory – From John Austin; law consists of commands originating from a sovereign and backed up by threats of sanction is disobeyed. In this view, international law is not law because there is no command sovereign. This theory has been generally discredited. Consensual Theory – International law is binding because of the consent of the states, like treaties and customary law. However, there are many binding rules which do not derive from consent. Natural Law Theory – Law is derived by reason from the nature of man. International law is the application of natural reason to the nature of the state-person. The theory finds little support but much of customary law and what are regarded as general principles of international law are expressions of natural law. Dissenters: No objective basis for international law because it is a mere combination of politics, morality and self-interest hidden under the smokescreen of legal language. Public vs. Private International Law: Scope and Differences

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Transcript of PIL Regina

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Public International Law, 2009 Fr. Joaquin Bernas | MANIEGO, A2012

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PUBLIC INTERNATIONAL LAW NOTES AND DISCUSSIONS (2009ED)

2-A 2012 (FR. JOAQUIN BERNAS)

CHAPTER ONE: THE NATURE OF INTERNATIONAL LAW

I. What is international law?

Traditional definition: “The body of rules and principles of action binding upon civilized states in their relation to one another.”

Entities governed: States (primarily), international organizations, individuals

(Third) Restatement of Foreign Relations Law of the United States (Restatement): Considered by U.S. Courts as the most authoritative work on international law.

Definition: “The law which deals with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or

juridical.”

Scope of international law: In the age of technological advancement and

globalization, public international law (PIL) is rapidly expanding—new subject matters, changing political and social principles and new states and entities being added to the community of nations. Beyond the primary concern for the

maintenance of peace, it extends to cover all the interests of international and even domestic life.

Is it a law? The following reasons illustrate the arguments why PIL is not law,

and why it is commonly disregarded:

• There can be no law binding sovereign states. • No international legislative body.

o United Nations (UN) General Assembly

resolutions are generally not binding on anybody.

• No international executive to enforce legislation.

o UN Security Council – intended to be an international executive; always prevented by veto power

o No assured procedure of identifying violation—most of UN powers have reference to lawbreaking taking the form of an act of

aggression or as a threat to peace, but there are many violations of PIL which are not of this nature. As a result, all the UN can do is

censure. • No central authority to make judgments binding on states

o International Court of Justice (ICJ) – can

only bind states when they consent to be bound

• National policy or interest is often preferred over

international law. o National officials often find justification for the

things they do.

Above arguments are based on an exaggerated notion of sovereignty as embodying an individualist regime, but this is not the reality. Reality is social interdependence and the predominance

of the general interest. • Henkin: “Almost all nations observe almost all principles

of international law and almost all of their obligations

almost all of the time.” • Brierly: Law is binding because a reasonable man,

whether as an individual or as part of a state, believes

that order is preferred over chaos, and that order is the governing principle of the world.

Final analysis: There is a general fundamental respect for law

because of the possible consequences of defiance, either to oneself or to the larger society. International law is law because it is seen as such by states and other subjects of international law.

Theories about international law: command theory, consensual theory,

natural law theory Command Theory – From John Austin; law consists of commands

originating from a sovereign and backed up by threats of sanction is disobeyed.

• In this view, international law is not law because there is

no command sovereign. This theory has been generally discredited.

Consensual Theory – International law is binding because of the

consent of the states, like treaties and customary law. • However, there are many binding rules which do not

derive from consent.

Natural Law Theory – Law is derived by reason from the nature of man. International law is the application of natural reason to the nature of the state-person.

• The theory finds little support but much of customary law and what are regarded as general principles of international law are expressions of natural law.

Dissenters: No objective basis for international law because it is a mere combination of politics, morality and self-interest hidden under the smokescreen of legal language.

Public vs. Private International Law: Scope and Differences

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Public International Law – “International law” – Governs the relationships between and among states, and also their relations

with international organizations and individual persons Private International Law – “Conflicts of law” – Really considered

domestic law which deals with cases where foreign law intrudes in

the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts

Historical development of International Law Ancient Law to post-World War I

• Ancient international law governed exchange of

diplomatic emissaries, peace treaties. The progressive rules of jus gentium or law “common to all men” became the law of the Roman Empire.

• Modern international law began with the birth of nation-states in the Medieval Age. It was governed by Roman or Canon Law, which drew heavily from natural law.

• Hugh Grotius is the father of modern international law; authored the De Jure Belli ac Pacis, which discussed the “law of nations” (later named “international law” by British

philosopher Jeremy Bentham.) He was preceded by largely natural law theorists.

• Positivist approach reinterpreted international law on

the basis of what actually happened in the conflict between states and not from concepts derived from reason.

• Notion of sovereignty gave rise to the Austin’s command theory.

• Pacta sunt servanda arose in light of the Peace of

Westphalia which ended the Thirty Years War (1618-1648) and established a treaty-based framework for peace cooperation.

• Congress of Vienna (1815) ended the Napoleonic Wars and created a sophisticated system of multilateral political and economic cooperation.

• League of Nations (from the Treaty of Versailles): Arose after the culmination of World War I, as an institution set up by the victors of the war to prevent the

recurrence of world conflagration. It was originally composed of 43 states. The United States did not join. The League of Nations created the Permanent Court of

International Justice. From the end of World War II to the end of the Cold War

• United Nations (UN): Because the League of Nations

failed to prevent the occurrence of World War II, the victors then set up the UN in 1945 as a new avenue for peace. This marked a shift of power away from Europe

and the beginning of a truly universal institution. • Decolonization: The universalization began by the

establishment of the UN was advanced by

decolonization, resulting in an expansion of membership in the UN composing of formerly colonies, now newly

recognized states. • Grouping of States during the Cold War—Western,

socialist, developing countries

o Western States (United States, etc) were not of one mind but insisted on two general points—that legal provisions must be clear and

precise, and that any substantive rule must be accompanied by an implementation mechanism that can spot and correct

violations. Some remained satisfied with the status quo but some were more open to Third World demands and were supportive of social

and legal changes o Socialist states were led by the Soviet Union,

which sought to avert Western intrusion into

domestic affairs even as they sought relatively good relations with the West for the sake of economic and commercial interchange. They

also sought to convert developing nations to their ideology.

o Developing countries formed the

overwhelming majority and were mostly former colonies suffering underdevelopment with newly industrializing countries like the

Philippines, Malaysia, Thailand, Singapore and South Korea who earned their independence through armed or political struggle while

remaining under the influence of Western or socialist ideas.

Post-Cold War Period

• Dissolution of the Soviet Union led to the re-emergence of international relations being based on multiple sources of power and not on ideology. The Baltic

states (Estonia, Latvia, Lithuania) were restored to statehood and the newly born Russian Federation did not inherit the Soviet Union’s position as a superpower.

• United States: The last remaining superpower, politically and ideologically leading the Western States. It acts as both world politician (in a selective manner) and global

mediator. • Socialist countries are no longer united; some depend

on support from Western states.

• Developing countries have veered away from ideological orientation and towards market orientation as well as fighting poverty and backwardness.

• The UN has declined as the international agency for the maintenance of peace.

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CHAPTER TWO: THE SOURCES OF INTERNATIONAL LAW

I. What are the sources of international law?

As distinguished from domestic law: It is relatively easier to find domestic law because they are generally found in statute books and in collections of court decisions. In international law, there is no centralized legislative,

executive or judicial structure, making it difficult to locate the source of PIL. The problem is further heightened by the constantly changing state of world affairs and competing sovereignties.

Classification of sources—material and formal

Formal sources: May refer to various processes by which rules

come into existence, e.g. legislation, treaty-making, judicial decision-making, state practice

Material sources: Concerned with the identification, substance and

content of the obligation; also called “evidence” or international law

Conditions for Legal Principles: Laid down by the doctrine of sources, these

conditions are the observable manifestations of the “wills” of the States as revealed in the processes by which norms are formed—treaties and customs.

Verification process is inductive and positivistic—finding what laws the states have created and what laws they are willing to place themselves under.

• “Proof” that international law is characterized by individualism.

Article 38(1) of the Statute of the International Court of Justice: Most widely

accepted statement on the “sources” of international law. However, Art. 38 is primarily a directive; it does not speak of actual sources but directs the ICJ on how to resolve conflicts brought before it.

Article 38 enumerates the following as applicable to disputes before it, without prejudice to the power of the court to decide ex aequo et bono (for the right and good) if the parties agree thereto:

International conventions, whether general or particular, establishing rules expressly recognized by contesting states

International custom, as evidence of a general practice accepted

as law General principles of law, recognized by civilized nations Judicial decisions and teachings of highly qualified publicists

of various nations (as subsidiary means and subject to the provisions of Art. 59—which states that the decision of the ICJ is only res judicata as between the parties and with respect only to

that particular case)

Sources according to the Restatement:

A rule of international law is one that has been accepted as such by the international community of states—

• As customary law

• By international agreement

• By derivation from general principles common to the major legal systems of the world

Customary law – that which results from a general and consistent practice of states followed by them from a sense of legal obligation

International agreements – create law for the state parties

thereto; may lead to the creation of customary international law when such agreements are intended for adherence to states generally and are in fact widely accepted

General principles of law – general principles common to major legal systems, even if not incorporated or reflected in customary law or international agreements; applied as supplementary rules of

PIL where appropriate.

Sources, in general: custom, treaties and other international agreements,

generally recognized principles of law, judicial decisions and teachings of highly qualified and recognized publicists.

II. Customary Law Definition: A general and consistent practice of states followed by them from

a sense of legal obligation. (Restatement)

Contains the basic elements of custom: the material factor (how states behave) and the psychological or subjective factor (why states behave the way they do)

Material factor (usus): Contains several elements—duration, consistency, generality

Duration—may be long or short

• Customary law as a result of long, immemorial practice: Paquete Havana (US SC)—WON fishing smacks were subject to capture by armed vessels of the US.

o Ruling: By ancient usage centuries ago, gradually ripening into a rule of international law, coast fishing vessels, pursuing their

vocation has been recognized as exempt from capture as prize of war

• Customary law as a result of short duration is not

excluded: North Sea Continental Shelf (ICJ)—Ruling: Passage of only a short time is not a bar to the formation of custom on the basis of what was purely a conventional

rule, so long as State practice should have been both extensive and virtually uniform and should show that there is general recognition that a rule of law or legal

obligation is involved. • Duration is not the most important element; the other two

are more important.

Consistency—involves continuity and repetition, as laid down in

the Asylum case

• Asylum (ICJ)—WON Colombian Ambassador could claim de la Torre, alleged mastermind of a military rebellion in Peru, as a political refugee, granting him asylum and safe

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passage, over the objections of the Peruvian government, who disputed Colombia’s claim.

o Ruling: Against Colombia—because they didn’t prove that there was constant and uniform practice of unilateral qualification as a right of

the State of refuge and an obligation upon the territorial State. Colombia, as the State granting asylum, is not competent to qualify the

nature of the offense by unilateral and definitive decision to bind Peru.

Uniformity and generality—need not be complete, just substantial

• Nicaragua v. US (ICJ)—To deduce the existence of customary law, it is sufficient that the conduct of states should be consistent with such rules and that instances

of state conduct inconsistent with it should be considered as breaches of the rule, not proof of a new rule in place.

Subjective factor (opinio juris): The belief that a certain form of behavior is obligatory makes practice an international rule; otherwise, practice is not law.

Even humanitarian consideration by itself does not constitute opinio

juris: • Nicaragua v. US (ICJ)—For new customs to be created,

not only must the acts be settled practice, but they must

be accompanied by opinio juris sive necessitatis. The conduct of States must be evidence of a belief that the practice is rendered obligatory by the existence of a rule

of law requiring it. The need of such belief is implicit in the notion of opinio juris.

Customary law can develop to bind only two or a few states, but the state

claiming it must prove that it is also binding on the other party/parties, as was proved by Portugal in the Right of Passage over Indian Territory (ICJ).

Dissenting states may be bound by custom, unless they have consistently

objected to it. Anglo-Norwegian Fisheries Case (ICJ)—WON Norway, who has

consistently objected to England’s coastline delimitation rule, is

bound by the aforesaid custom. • Ruling: Against England—It is inapplicable as against

Norway inasmuch as she has always opposed any

attempt to apply it on the Norwegian coast. Dissent protects only the dissenter; the custom is applicable to

other states.

A new state joining the international law system is bound by any kind of practice which has already been recognized as customary law.

Contrary practice: Even after a practice is recognized as customary law, it is

possible to adopt a contrary practice. However, contrary practice can cast

doubt on the alleged law and can show great uncertainty as to the existing customary law, unless it can gain general acceptance to supervene the preceding custom.

Evidence of state practice: Although custom may be proved in many ways, like treaties, diplomatic correspondence, statements of political leaders, as

well as state conduct, the existence of opinio juris is a matter of proof and the burden of proving its existence rests on the state claiming it.

Instant custom: Spontaneous activity of a great number of states

protesting/supporting a specific line of action. Best example—American line of action after the attack on the World Trade Center in New York gave birth to instant customary law classifying the act as an armed attack under Article 51

of the UN Charter justifying collective self-defense. Martens Clause in Humanitarian Law: 1899 Hague Peace Convention—“Until

a more complete code of laws of war has been issued, the High Contracting

parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and belligerents remain under the protection and the rule of the principles of the laws of nations as they

result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.”

The clause places humanitarian laws and dictates of public

conscience on the same level as usage or usus, suggesting that even without practice, there can emerge a principle of law based on humanitarian law and the dictates of public conscience.

Treaties and custom: It depends on the intention of the parties—it may be that the treaty is declaratory proof of customary law, or serves to complement it. Adherence to treaties may be adherence to practice as opinio juris. If

treaties and custom contradict each other, the later one will prevail because it is presumed to be a deliberate choice on the part of the state.

If a treaty is later than custom, the principle of pacta sunt servanda

(Lat. “agreements must be kept”) governs. • EXCEPT if the customary law has the status of jus

cogens (Lat. “compelling law”)—a norm accepted and

recognized by the international community as a whole as one from which no derogation is permitted and can be modified only by a subsequent norm of general

international law having the same character. Treaties which conflict with a peremptory norm of general international law are void.

If a custom comes later than a treaty, generally, the later custom is said to prevail as an expression of a later will. However, attempts ought to be made to reconcile the treaty with custom, as is shown

in the Angle-French Continental Case. • Anglo-French Continental Case: WON the equidistance

principle applies in the delimitation of the continental

shelves of the United Kingdom and France. Article 6 (in the treaty) makes the application of the equidistance principle obligatory for the Parties to the convention, but

the combined character of the equidistance-special circumstances rule means that the obligation to apply the equidistance principle is always qualified by the condition

“unless another boundary line is justified by special circumstances.”

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III. Treaties (will be treated in Chapter 3)

IV. General principles of law recognized by civilized nations Also known as “general principles of law recognized or common to the

world’s major legal systems.” (Restatement) It references municipal law

principles common to legal systems of the world and are evidence of the fundamental unity of law, most of them incorporated into conventional international law.

They are supplementary rules of international law, found in judicial decisions and the teachings of highly qualified publicists of various nations; they are a subsidiary means for the determination of rules

of law. Examples are— • Chorzow Factory (PCIJ): Every violation involves the

obligation to make reparation.

• Private rights gained under one regime do not cease upon a change of government.

• Principle of estoppel

Article 38(1) (Statute) is an affirmation of general principles of law in domestic law systems and makes up for the fact that there is no international legislative system. It plugs in some of the gaps of the

current international law system. • Barcelona Traction Case (ICJ)—The Court cannot

disregard the institution of municipal law because it

would, without justification, invite serious legal difficulties.

Judicial decisions: Article 38 directs the court to apply these in a subsidiary

manner in the determination of the rules of law, subject to Article 59 (on res judicata of ICJ cases as only being between parties). However, despite this, cases decided by the ICJ are considered highly persuasive in international

law circles and have contributed to the formation of international law, e.g. arbitral decisions have been instrumental in the formation of PIL principles.

Teachings of highly qualified writers and “publicists:” In cases of first

impression, the court reluctantly makes reference to writers since they are the only available sources. Common law courts are less willing to use them than civil law courts. “Publicists” are institutions which write on PIL, but may

bear potential national bias—being primarily government-sponsored entities—like The International Law Commission (a UN organ), the Institut de Droit International, the International Law Association (a multinational body),

the Restatement, and the annual Hague Academy of International Law’s annual publication.

Equity considerations: As a source of law, the Permanent Court of Justice

had occasion to use equity in the case of Diversion of Water from the Meuse (PCIJ), where the issue was WON Belgium had violated an agreement with the Netherlands about any construction altering water levels and the rate of

flow of the Meuse waters when the Netherlands built a lock earlier than when they were supposed to. The Court rejected both on the basis of equity, saying that where two parties who have assumed reciprocal obligations, the

continuing non-performance of one party does not permit it to take advantage of a similar non-performance by the other party, because a court of equity refuses relief to a plaintiff whose conduct in regard to the subject matter has

been improper. The Court here recognizes that, under Article 38 of the Statute, the Court has some freedom to consider principles of equity as part

of the international law which it has to apply. When it is accepted, equity is an instrument whereby customary or

conventional law may be supplemented or modified in order to achieve

justice. It has both a procedural and substantive aspect. Procedurally, equity is a mandate to the judge to exercise discretion

to achieve a determination that is more equitable and fair.

Different kinds of equity are distinguished—intra legem, praeter legem, contra legem

• Intra legem: Within the law; the law is adapted to the

facts • Praeter legem: Beyond the law; the law is used to fill the

gaps within the law

• Contra legem: Against the law; there is refusal to apply the law because it is unjust

Other supplementary sources: UN Resolutions (merely recommendatory, but

may sometimes be an expression of opinio juris or are reflections of what has become customary law), “soft law” (non-treaty agreements and not covered by the Vienna Convention on Treaties, like administrative rules guiding

practice of states for international organizations; preferred by States because it is simpler and more flexible for future relations.

CHAPTER THREE: THE LAW OF TREATIES

I. Treaties

Many forms of treaties: conventions, pacts, covenants, charters, protocols, concordat, modus vivendi, etc. It is the most deliberate form of commitment

through which governments cooperate with one another. The general term used is international agreements. They are convenient tools through which states show common intent, in the absence of international legislative.

1969 Vienna Convention on the Law of Treaties: Governs treaties between states; entered into force in 1980.

A Convention on the Law of Treaties Between States and International

Organizations or Between International Organizations was adopted in March 1986, and should enter into force 30 days after the 35

th ratification or

accession of states.

Definition: A treaty is 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. (Vienna Convention)

Elements of a treaty—1. In writing; 2. Reflective of the intention of

the parties to be bound; 3. Governed by international law Some writers believe that even oral agreements can by binding.

However, only written agreements can be subject to the provisions

of the Vienna Convention. No particular form is prescribed, as is shown in the following cases:

• Qatar v. Bahrain (ICJ)—WON the two States should be

bound by the signing and exchange of Minutes between

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the two heads of state with the binding force of an international agreement. Ruling: To ascertain whether it

can be considered as an international agreement, the Court must have regard for its actual terms and the particular circumstances in which it was drawn. The

Minutes had included a reaffirmation of the obligations they entered into, and were not, thus, a simple record of the meeting but enumerate the commitments to which the

parties have consented, thus creating rights and obligations in international law for the parties and validly constitute an international agreement. When it was

contended that there was no intention to be bound by the Minutes, the Court deemed it unnecessary to have to look into intentions because of the signatures of the two

ministers. • Norway v. Denmark (PCIJ): In a case involving a dispute

over sovereignty in Eastern Greenland where Norway

accepted Denmark’s offer of concessions in exchange for non-obstruction of the latter’s plans, WON the Norwegian Minister is bound by his statement to the Danish minister

“that the Norwegian Government would not make any difficulty in the settlement of this question.” Court—YES.

On UNILATERAL DECLARATIONS: • Nuclear Test Cases: Australia v. France & New Zealand

v. France (ICJ): These cases were filed as a response to

France being a signatory to the Nuclear Test Ban Treaty and yet continued to conduct tests in the South Pacific until 1973. However, the cases were dismissed when

France, through a series of unilateral announcements, said that it would conduct no further tests. Nonetheless, the court commented that unilateral declarations have the

effect of creating legal obligations when the commitments are a.) very specific and there is b.) a clear intent to be bound.

• European Union v. US: Attributing legal significance to unilateral statements made by a State should not be done lightly, and are subject to strict conditions.

Functions of treaties: May be sources of international law; charters of

international organizations; used to transfer territory, regulate commercial

relations, settle disputes, protect human rights, etc. Multilateral treaties: Open to all states of the world; operate to

create norms which are the basis for a general rule of law. May be

either codification treaties (covering principles) or “law-making treaties” (treaties which ripen into law) or they may have the character of both.

Collaborative mechanism treaties: May be of universal or regional scope, and operate through the organs of different states.

Bilateral treaties: In the nature of contractual agreements which create shared expectations (trade agreements) and are sometimes

called “contract treaties.” While treaties are generally binding only on the parties, the generality of the

acceptance of specific rules created by the treaty can have the effect of

creating a universal law in the same way that practice creates customary law.

Making of treaties: Generally, treaties originate from foreign ministries and

negotiation is done through them. Larger multilateral treaties are negotiated in diplomatic conferences run like a legislative body.

Negotiation: Negotiators must possess negotiating powers

because a treaty reached by one without proper authorization has no legal effect unless ratified. A person represents the state in negotiations when he produces appropriate full powers or it

appears that it is the practice of the State to consider that person as representative of its interest for such purposes. Negotiations conclude with the signing of the document.

• Ex. Heads of State & Government and Ministers for Foreign Affairs; heads of diplomatic missions; representatives accredited by States to an international

conference or an international organization. Authentication of text: When documents are signed, they are

deemed authenticated, making the text authoritative and definitive.

In cases of dispute, basis for resolution is the authenticated document.

Consent to be bound: The most important step through which a

document becomes binding as international law. There are various ways by which consent to be bound is expressed.

• Ex. Through signature, exchange of instruments

constituting a treaty, acceptance, approval, accession, or any other means agreed upon.

Ratification: Manner of ratification differs from state to state. In the

Philippines, it is done via concurrence of two-thirds of all the members of the Senate (Sec. 21, Art. VII, 1987 Constitution.) By this, a state is required not to engage in acts which can defeat the

purpose of the treaty. Notification, Exchange and Deposit of Ratification: Unless the treaty

provides otherwise, notification, exchange and deposit establish the

consent of a State to be bound by a treaty. Accession to a treaty: Only those not originally parties of the treaty

can express their consent to be bound by accession, where the

treaty provides or it is otherwise established that such consent may be expressed by that State by means of accession.

Reservations: A unilateral statement made by a State when signing, ratifying or approving a treaty purporting to exclude or modify the legal effect of certain provisions of a treaty in its application. They are different from

statutes, which apply to all, and from interpretative declarations, which are not derogations but are expressions of how a state understands its adoption of the treaty.

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Reservation is not allowed when prohibited by the treaty, when the treaty provides for special reservations, or when the reservation is

incompatible with the object and purpose of the treaty. Reservations expressly authorized by treaty do not need to be

subsequently accepted unless provided by the treaty itself.

Reservation requires acceptance by all the parties if the number of party States to the treaty are limited and the acceptance of the treaty as a whole is essential to the purpose of the treaty.

If the treaty is integral for an international organization, a reservation requires the acceptance of the organization.

Reservation is deemed to be accepted if others failed to raise any

objections within one year after notification of the reservation or after it expressed its consent to be bound, whichever is later.

Reservations may be withdrawn at any time and consent of the

other State is not required for its withdrawal. Likewise, objections to reservations may be withdrawn at any time. Withdrawal becomes operative in relation to another contracting State only when notice

has been received by other contracting states. Form: Reservation must be in writing and communicated to

contracting States and other states entitled to become parties.

Express acceptance of a reservation by other states does not require confirmation in itself. Withdrawal of a reservation or of an objection thereto must be in writing.

Reservation in bilateral treaties is considered a rejection of the treaty. Reservations, then, are only applicable to multilateral treaties.

The Philippines and the 1982 Law of the Sea: The Philippines made a reservation conditioning its acceptance of the 1982 Law of the Sea on the Philippine claim in the 1987 Constitution on “internal

waters” between islands, irrespective of breadth. USSR filed a formal protest but FJB says that the reservation is unnecessary because the new rule only applies to waters not previously

considered as internal waters. Reservations in human rights treaties: No reservations can be

made for Human Rights treaties.

Entry into force of treaties: Enter into force on the date agreed upon by the parties. Where no date is indicated, once consent has been given. Multilateral treaties come into force once the required number of parties

consent or accept the treaty. They may also be applied provisionally. Application of treaties:

The first fundamental rule on treaties is pacta sunt servanda,

ensuring that every treaty in force is binding upon the parties to it and must be performed by them in good faith. (Article 26 of the Convention)

The second fundamental rule is that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (Article 46 of the Convention)

Third—regarding the territorial scope of its applicability: Unless a different intention appears from the treaty or is otherwise established, a treaty or is otherwise established, a treaty is binding

upon each party in respect of its entire territory. (Article 29 of the Convention)

Interpretation of treaties: Article 31 combines various approaches to treaty interpretation

Objective approach: interpretation according to the ordinary

meaning of the words Teleological approach: interpretation according to the telos or the

purpose of the treaty

Subjective approach: honors the special meaning given by the parties

If there are ambiguities, supplementary sources may be used; in

case of conflicts, language that is agreed upon by the parties shall prevail.

• Air France v. Saks (US): WON an air carrier is liable for a

passenger’s injuries due to the dropping of air pressure which occurred while the plane was in the process of landing, causing the passenger to become deaf in one

ear. Despite the Warsaw Convention making the airline liable for injuries sustained by passengers on the account of any accident occurring onboard the aircraft or in the

course of any of its operations while embarking/disembarking, the court found that the injuries were a result of a usual and expected event (the

dropping of air pressure), which was not within the meaning of the word “accident” in Article 17.

Invalidity of treaties: Error of fact, fraud, corruption, duress

Error: Mistake in a factual antecedent essential to the State entering into the treaty in the first place; does not apply if there was prior notice or the State head contributed to the mistake.

Fraud: Fraudulent behavior is involved in inducing another to enter into a treaty with the State.

Corruption: Consent is procured through either direct or indirect

corruption of its representative. Duress: There is duress by procuring consent through the coercion

of another State’s representative or acquiring another State’s

consent through threat or use of force in violation of the principles of international law.

Jus cogens: A peremptory norm of international law from which no

derogation is permitted; any treaty which violates jus cogens is deemed void.

Loss of right to assert the invalidity of a treaty: A state loses the right to

protest a treaty’s validity when, after knowing all of the facts, expressly agreed to its validity or continues to keep it in force/in operation.

Municipal law as a ground to invalidate a treaty: Generally, a state cannot

use municipal law as a ground to invalidate a treaty unless there is a manifest violation.

Manifest violation: A violation is manifest if it would be objectively

evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

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• Ex. A state representative is subject to a restriction when concluding a treaty (a manifest violation if he does not

observe the restriction, unless the other states were informed of his lack of capacity and contracted with him anyway)

Amendment of treaties: A formal revision done with the participation (at the

very least in its initial stage) by all the parties to the treaty.

A treaty may be amended by agreement of the parties. The procedure to be followed is the same as formation—it is much more difficult as to multilateral treaties than bilateral treaties because it is

difficult to obtain the consent of all the parties in multilateral treaties.

Article 40: Applies for amendments which will affect only some of

the states but only after all parties have been given the opportunity to consider the proposed amendments.

• Notice of the proposal to amend must be given to all

contracting parties, because they all have the right to: a.) the decision as to the action to be taken; b.) the negotiation and conclusion of any agreement for the

amendment. • Every original contracting party-State is also entitled to

become a party to the amended treaty. Also, the

amended treaty does not bind those who do not give their consent to it. A State that becomes a party to the treaty after the amendment shall (unless it is expressed

differently) be considered as a party to the treaty as amended and a party to the original treaty in relation to those who did consent to the amended treaty.

Modification: A formal revision that involves only some of the parties. Article 41: Allows for modification by two or more of the parties.

• Two or more parties in a multilateral treaty may modify

the treaty as between themselves if the treaty provides that it may be modified or it does not prohibit modification. The lack of prohibition must also indicate

that it must not affect the enjoyment of rights under the treaty by other parties, or it must not relate to a provision, derogation from which is incompatible with the effective

execution of the objective of the treaty. • The modifying parties must also inform the other parties

of their intent to modify as well as the modification itself.

Termination of treaties: Termination according to—conclusion according to

the terms, by consent, expiration of definite period, achievement of purpose.

Change of government does not terminate a treaty. Other modes of terminating a treaty: Material breach, impossible

performance, rebus sic stantibus

Material breach: The treaty’s terms are breached.

Bilateral: Innocent party may invoke the breach of the other party as a ground to terminate or suspend the operation, in whole or in

part. Multilateral: Breach of the treaty entitles the other parties (by

unanimous agreement) to suspend the operation of the treaty, in

whole or in part, either between themselves and the defaulting State or as between all of the parties, or to ask for the termination of the treaty

• A party specially affected by the breach may invoke it as a ground for suspending the operation of the treaty, or suspend the relations between itself and the defaulting

State. • Any other party may invoke breach as a ground to

suspend the operation of the treaty in whole or in part

with respect to itself if it is of such a character that a material breach by one radically changes the position of all the other parties with respect to further performance.

• Examples of breach: Unsanctioned repudiation of a treaty, violation of a provision essential to the accomplishment of the purpose of the treaty.

• Note: The ground of material breach cannot apply to provisions relating to the protection of the human person contained in humanitarian treaties.

Namibia Case (ICJ): The case is an advisory opinion on the legal consequences of a breach of a resolution sought by the Security Council after it had ruled that South Africa’s extended stay in

Namibia was illegal. Ruling: The ICJ held that the two forms of material breach had occurred in this case (unsanctioned repudiation and violation of a treaty provision.) South Africa was

under an obligation to withdraw from Namibia, and other States were under no obligation to recognize any acts by South African administration from Namibia.

Supervening impossibility of performance: It has become impossible to fulfill the treaty because of the disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary,

it may only be cause to suspend. It cannot be invoked if the impossibility is a result of a breach by the party claiming the ground.

Danube Dam Case (ICJ): WON Hungary could claim the right to

terminate the 1977 Treaty between the State and Czechoslovakia to facilitate the construction of dams on the Danube river on the basis of impossibility of performance and rebus sic stantibus. Due

to environmental concerns, Hungary had to suspend operations causing Czechoslovakia to respond with unilateral measures, causing Hungary to try to terminate the treaty. Ruling: The court

held that Hungary could not claim impossibility of performance if they had a hand in the breach that caused the impossibility (in this case, failure to carry out the works for which Hungary was

responsible.) Furthermore, the change in circumstance is not fundamental enough to radically transform the extent of the obligations under the Treaty.

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Rebus sic stantibus (Fundamental change in circumstance): There is a fundamental change in the circumstances, unforeseen by the parties, from

those at the conclusion of the treaty. This may not be invoked as a ground for terminating a treaty unless

those circumstances were an essential basis of the consent of the

parties to be bound to the treaty, and the effect of the change transforms the extent of obligations still to be performed under the treaty.

Rebus sic stantibus may also be invoked to suspend a treaty’s operations. However, the modern approach to its invocation is restrictive (Fisheries Jurisdiction case)—the changes must have

increased the burden of the obligations to be executed to the extent of rendering performance something essentially different from the original intention.

• Fisheries Jurisdiction (ICJ): WON the proposed extension of Iceland’s exclusive fisheries jurisdiction from 12 miles to 50 miles was a breach of an agreement between the

State and UK, on Iceland’s argument that the agreement was no longer binding because of rebus sic stantibus. Ruling: The court ruled that the fundamental change

being pushed by Iceland (increased exploitation of fishery resources because of the increased catching capacities of fishing fleets) cannot be said to have transformed the

extent of the jurisdictional obligation imposed in the agreement with the UK.

Exceptions: Fundamental change in circumstances cannot be

invoked as a ground for termination or withdrawal when the treaty establishes a boundary, or if it is a result of a breach by the party invoking it.

Procedure for termination:

Party-State must notify other parties (in writing and signed by one

with full powers) of the ground or defect in the consent which would allow it to withdraw or terminate the treaty. Notification must indicate the measure proposed and the reasons.

If within a period of not less than three (3) months, no objections are raised, proposing State may carry out the measures proposed. In case of an objection, the parties concerned shall seek a solution

through the necessary means. If no solution is reached within 12 months, the dispute must be

submitted to:

• ICJ • Arbitration, or • Secretary General of the UN for procedure specified in

the Annex of the Convention The proposal may be revoked any time before it takes effect.

Authority to terminate: Vienna Convention does not enumerate those who

have the capacity to terminate treaties; however, it is logical that those with the authority to enter into treaties also have the authority to terminate them.

Can the President unilaterally terminate a treaty? In US jurisdiction (Goldwater v. Carter), the question was raised but not resolved

because the case was not yet ripe for adjudication. Succession to treaties: In the case of a brand new state (one state ceases to

exist and is succeeded by another occupying the same territory), the Vienna

Convention on the Succession of States with Respect to Treaties concluded that the “clean slate rule” is applied, and a newly independent state is not bound to maintain treaties entered into by the previous state. If they choose,

however, they may agree to be bound by the treaties of its predecessor. Exception: Treaties affecting boundary regimes. They are

considered as attached to the territory, not to the State.

CHAPTER FOUR: INTERNATIONAL LAW AND MUNICIPAL LAW

I. Conflict between International Law and Municipal Law—Dualism vs. Monism

Dualist/pluralist theory: International law (PIL) and municipal law (ML) are

essentially different. As to source: ML is a product of local custom or legislation and PIL

is sourced from treaties and custom grown among states.

As to relations to regulate: ML regulates relations between individual persons under the state, while PIL regulates relations between states.

As to substance: ML is the law of the sovereign over individuals while PIL is a law between sovereign states.

Which prevails: ML must prevail (Dualists are positivists—strong emphasis on state sovereignty)

Monistic Theory: PIL and ML belong to only one system of law. Monism Theory 1: ML subsumes and is superior to PIL. Monism Theory 2: PIL is superior to ML (this theory is supported by

Kelsen); this superiority stems from a deep suspicion of local sovereigns and from the conviction that PIL imbues the domestic order with a sense of moral purpose.

ML in PIL: Prevailing practice accepts dualism to the extent that it recognizes

two legal systems.

Parties may not invoke provisions of ML to avoid or to justify its failure to perform a treaty or any kind of international agreement. Dualist theory blocks the entry of ML in the area of PIL.

A state that enters into an international agreement must modify its ML to make it conform to the agreement. As in the case of Exchange of Greek and Turkish Population, the Court ruled that a

state is “bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.”

However, even under a dualist perspective, the two systems are not completely separate. Barcelona Traction Case (ICJ): A court who disregards the relevant institution of ML would be losing touch

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with reality. However, PIL refers only to generally accepted rules in municipal systems and not to the particular ML of a particular State.

If an international court is called to decide a case based on municipal and not international law, they must apply it as it would be applied in the country where it is from.

PIL in ML: Dualism still applies when it comes to entry of PIL into the

domestic sphere. Unless it becomes a part of municipal law, PIL has no place

in the settlement of conflicts in domestic law. Two theories on how PIL becomes a part of ML: Doctrines of

transformation and incorporation

Transformation—for PIL to become part of ML, it must be expressly and specifically transformed into domestic law through legislation or any other appropriate machinery. Treaties do not become part of

the law of the land unless the State consents to it. Incorporation: When any question arises which is properly the

object of its jurisdiction, the law of nations is adopted by common

law, and becomes part of the law of the land.

Philippine law: Treaties and international agreements become part of the law

of the land when concurred in by the Senate (1987 Constitution). The acceptance of the Philippines of the generally accepted principles of PIL manifests its adherence to the dualist theory and adopts the incorporation

theory, making PIL a part of ML. Philippine courts, then, can use PIL to settle domestic disputes.

Incorporation only applies to customary law and treaties which have

formed part of customary law, because the 1987 Constitution also provides that treaties have to be ratified.

When Philippine Courts use PIL to settle domestic disputes: Mejoff v. Director

of Prisons (Declaration of Human Rights, in deciding WON to release an alien of Russian descent from detention pending deportation), Kuroda v. Jalandoni (the Hague and Geneva Convention, in WON a military

commission had jurisdiction over war crimes committed in violation of the two conventions prior to 1947), Agustin v. Edu (Vienna Convention on Road Signs and Signals, in determining WON the Letter of Instruction prescribing

the use of early warning devices possesses relevance,) J.B.L. Reyes v. Bagatsing (International duty to protect foreign embassies.)

International/Municipal Rule: Where there is a conflict between PIL and ML, what prevails depends on whether the case goes to an international or a domestic court. Before an international court, a party cannot argue or plead

its own law. Domestic courts have no choice but to follow local law.

Conflict between State Constitution and treaty: Treaty is not valid and

operative as domestic law; the SC has the power to declare the treaty invalid. However, this does not mean that the theory is declared unconstitutional or that it loses its international character.

Tanada v. Angara: WON the Senate’s ratification of the GATT Treaty is contrary to national interest and the Constitution. The Court ruled that the principles embodied in the Constitution are not

self-executing principles ready for enforcement but are used by the Judiciary to aid or guide the exercise of its power of judicial review.

Tanada case is supposed to be a retreat from the next case. Manila Prince Hotel v. GSIS: WON the State can award the

contract to a Filipino bidder over an international one on the basis

of the principles in the 1987 Constitution such as preferring qualified Filipinos. The Court said that the provisions need not be subject to legislation but are self-executory on their own, a

mandatory, positive command complete in itself. It is per se judicially enforceable.

Conflict between treaty and law: Whichever one is later prevails—based on the American view that treaties and statutes are equal in rank. However, the preference of a statute over a treaty (in case a statute comes later) only

applies as to its domestic aspect, not to its international aspect. Head Money Cases (US): Treaties do not hold a privileged position

above other acts of Congress, and other laws affecting "its

enforcement, modification, or repeal" are legitimate. So far as a treaty made by the United States can become the subject of judicial cognizance in the courts, it is subject to such acts which Congress

may pass. Whitney v. Robertson (US): WON the agreement between Hawaii

and the US as to admit their sugars duty-free into the country would

also apply to the merchant-petitioners’ produce of similar centrifugal and molasses sugar from San Domingo, a State which also has a similar treaty with the United States. The court ruled, gleaning

doctrine also from the Head Money cases that when the stipulations are not self-executing, they require legislation to put them into effect. Such legislation is subject to modification and

repeal by Congress. If the treaty contains self-executing stipulations, to that extent they have the force and effect of a legislative enactment.

CHAPTER FIVE: SUBJECTS OF INTERNATIONAL LAW--STATES

I. Subjects vs. Objects of International Law

They are entities endowed with rights and obligations in the international

order, possessing the capacity to take certain kinds of action on the international plane.

Have international personality and are capable of acting in international law.

Vs. Objects: Objects of PIL are those who indirectly have rights under/are beneficiaries of international law through the subjects of international law

States enjoy the fullest personality in PIL.

II. Statehood

Commencement: A state as a person in PIL should possess the following

characteristics—a.) permanent population, b.) defined territory, c.) government, and d.) capacity to enter into relations with other states. (Montevideo Convention of 1933 on Rights and Duties of States)

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Examples: When a portion of territory has seceded, foreign control over an entity claimed to be a state, or when states have formed a

union or continue to retain some autonomy, when members of a federation claim to be a state.

Elements of Statehood—People, Territory, Government and Sovereignty

People/Population: A community of persons sufficient in number, capable of maintaining permanent existence of the community and held together by a common bond of law. There is no minimum

population required, nor are they required to have racial, cultural or economic similarities.

Territory: An entity called a state must exercise sovereignty over a

definite territory; it may satisfy the territorial requirement for statehood even if its boundaries have not yet been settled with finality because it does not cease to be a state even if all its territory

is occupied by another power or if it has lost control of its territory temporarily. (Restatement)

Government: Institution by which an independent society makes

and carries out rules of action necessary to enable men to live in a social state, or which are imposed upon people forming that society by those who possess the power or authority of prescribing them

(US v. Dorr, 2 Phil. 332.) In PIL, there is no required form of government. For purposes of PIL, it is the national government which has international personality and it is that which is

responsible for the actions of the agencies and instrumentalities of the State. Temporary absence of government does not terminate the existence of a state.

Sovereignty: Independence from outside control. It is, according to the Montevideo Convention, the capacity of the State to enter into relations with other States. This, however, is dependent upon

recognition. Self-determination: Related to but is not identical to sovereignty.

The latter falls under the broader concept of the right of self-

determination. It is the impetus behind the birth of new states in the post-World War II era, and is asserted by both the International Covenant on Civil and Political Rights and International Covenant

on Economic, Social and Cultural Rights. “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and

cultural development. • May be broken down into two levels of claim to self-

determination: first, the establishment of new states—a

claim of a group within an established state to break away and form their own identity; and second, claims to be free from external coercion or to overthrow rulers and

establish a new government. The latter is the assertion of the right of revolution, or that of autonomy.

• The UN has various ways of giving effect to self-

determination like resolutions of support, sanctions for offenses against SD, rights of participation in

international fora—however, PIL has yet to recognize a right of secession from a legitimately existing state.

Recognition of states: When one state recognizes the capacity of another

state to exercise all the rights attributed to statehood; it is an act of

acknowledgement. Declaratory theory: Recognition merely ‘declares’ the existence of

the state; statehood depends upon its possession of the elements,

not upon fact of recognition, and the recognizing state merely accepts an already existing situation. (The weight of authority supports this.)

Constitutive theory: Recognition ‘constitutes’ the state; there is no state until it is recognized by another. The fact of recognition makes the state a state, and confers legal personality on the entity. This

theory emphasizes that states are under no obligation to enter into bilateral relations, but also allows those entities who do not have all the Montevideo Convention elements of a state to be recognized as

such. Political issue: Lately, it is of note that the recognition of states of

one another has become a matter of political discretion—a state

recognizes the existence of another if it is beneficial to them. Treatment of recognition has been inconsistent and it is seen that political realities have primacy over consistency in application.

Traditional criteria was largely amoral—how states came to be was not a relevant factor; now, placing conditions leading to recognition implies an attempt at greater moral dimension but have sacrificed

the application of a consistent doctrine. Recognition of Government: Closely related to recognition of states, it is the

act of acknowledging the capacity of an entity to exercise powers of

government. If there is a change in government that came about through constitutionally mandated means, recognition comes as a matter of right. If it came about through extra-constitutional means, the cases of Tinoco

Arbitration and Upright v. Mercury Business Machines Co. may be helpful. Tinoco Arbitration (W.H. Taft, arbitrator): WON Great Britain is

estopped from pursuing claims against the temporary Tenneco

government of Costa Rica because it never recognized the Tinoco government either as de jure or de facto. Ruling: The status of the brief Tenneco government was that of de facto, which was capable

of creating rights in different subjects, and these rights cannot be ignored to work any injury to the succeeding government.

Upright v. Mercury Business Machines Co. (US): WON plaintiff, as

an assignee of a trade acceptance debt of a foreign corporation which is a creature of East German government, can enforce the unpaid claim against Mercury Business Machines despite East

Germany not being recognized by the United States. Ruling: An unrecognized foreign government may have a de facto existence juridically cognizable when it affects private rights and obligations.

Consequences of non-recognition: Recognition allows opportunities not afforded to non-state entities, like extensions from funding agencies,

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facilitation of loans, access to foreign courts, etc. However, recognition of a government is a highly political decision.

Entry into the UN does not require recognition by all members. Recognition is only to the extent of the activities of the organization.

Neither recognition nor diplomatic relations necessarily mean

approval of the government. Termination of recognition: When a new regime is recognized in lieu of the

old government. A state cannot be de-recognized so long as it continues to

fulfill the requirements of statehood.

Succession of States: States do not last forever and state succession may

arise in different circumstances, such as a result of decolonization, dismemberment, secession, annexation and merger. What occurs in each of these instances is that an existing sovereignty disappears in whole or in part

and a new sovereignty arises giving rise to questions of succession to rights and obligations.

Tabula rasa theory: Clean-slate theory, where a new state is not

bound by any rights and obligations of its predecessor. Opposing theory says that a new state inherits all of the rights and

obligations of the old state.

Continuity: When a new state arises, what is its relation to the predecessor state? Does it continue the existence of the old state or is it completely distinct from it? It is less of a problem when there is a new regime

(constitutive of a ‘state’) like in the case of Pakistan and India succeeding British India. It is more problematic in cases like the former Soviet Union and Yugoslavia.

Specific provisions: Taken from the Restatement— As to territory: When a state succeeds another state with respect

to particular territory, the capacities, rights and duties of the

predecessor state with respect to that territory terminate and are assumed by the successor state.

As to state property: Subject to agreement between predecessor

and successor states, title passes as follows: 1.) Where part of the territory of a state becomes territory of another state, property of the predecessor state located in that

territory passes to the successor state; 2.) Where a state is absorbed by another state, property of the absorbed state, wherever located, passes to the absorbing state;

3.) Where part of a state becomes a separate state, property of the predecessor state located in the territory of the new state passes to the new state.

As to public debts: Subject to agreement between the states, responsibility for public debts, rights and obliges under contracts, remain with the predecessor state, except:

1.) Where part of the territory of a state becomes territory of another state, local public debt, and the rights and obligations under contracts relating to that territory, are transferred to the

successor state. 2.) Where it is absorbed by another state, the public debt, etc. pass to the absorbing state.

3.) Where part of the state becomes a separate state, local public debt, and rights and obligations relating to the territory of the new

state, pass to the new state. As to treaties:

1.) When part of the territory of a state becomes territory of another

state, the treaties of the predecessor state cease to have effect in respect of the territory and the treaties of the successor state come into force there.

2.) When a state is absorbed by another state, the treaties of the absorbed state are terminated and the treaties of the absorbing state become applicable to the territory of the absorbed state.

3.) When a part of a state becomes a new state, the new state does not succeed to the treaty to which the predecessor state was a party, unless, expressly or by implication, it accepts such

agreements and the other party agrees (Clean slate theory). 4.) Pre-existing boundary and other territorial agreements continue to be binding notwithstanding (uti possidetis rule).

Fundamental Rights of States—Independence, equality, peaceful co-

existence Independence: Capacity of a state to provide for its own well-being

and development free from the domination of other states, provided

it does not impair or violate their legitimate rights. From this flows the power of jurisdiction over territory and permanent populations, the right to self-defense and the right of legation.

Equality: Equality of legal rights irrespective of size or power of the State. In the UN, it is the doctrine behind the principle of one state, one vote.

Peaceful co-existence: Elaborated in the Five Principles of Co-Existence by India and China (1954) and includes mutual respect for each other’s territorial integrity and sovereignty, mutual non-

aggression, non-interference, and the principle of equality. Incomplete subjects—Protectorates, federal state, mandated and trust

territories, Taiwan, Malta, Holy See

CHAPTER SIX: SUBJECTS OF INTERNATIONAL LAW—OTHER SUBJECTS

I. International Organizations An organization that is set up by treaty among two or more states and is

different from NGOs, which are set-up by private persons. It is a treaty that is

the constituent document of international organizations. Only states are members of international organizations. To be able to

delineate the activities of international organizations, one must look at the

relevant rules of its body and to its constitution. How do they come into existence? Do they have international personality?

Do they enjoy any kind of immunity?

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Formed via multilateral treaties, but also treaties of a particular type—which create new subjects of international law, imbued with some autonomy, where

parties are geared towards a common goal. Reparations Case (ICJ Advisory Opinion): WON an agent of the

United Nations in the performance of his duties suffered injuries in

a situation involving responsibility of a State has the capacity to bring an international claim against the responsible government to obtain reparations for both the victim and the United Nations.

Ruling: Members of the UN created an entity possessing objective international personality and not merely a personality recognized by them alone. Despite the UN Charter being silent about the

organization’s international personality, its possession of legal personality may be implied from the functions of the organization.

However, the recognition of an international organization’s personality does

not place it on the same level as states. It does not give them the powers and privileges that a state enjoys, for their powers are limited by the instrument which created them.

Advisory Opinion on the Use of Nuclear Weapons: International organizations are governed by the principle of specialty and are invested by the States which create them with powers, limited by

the function of common interests. The powers conferred on them are normally the subject of an express statement of their charter instrument. However, they may possess subsidiary powers

necessary to achieve their objectives called “implied powers.” Immunities: The basis for their immunities is not sovereignty (as in States and

Heads of State) but the need for the effective exercise of their functions. The

immunities for the United Nations and its designated agents and representatives are found in Article 105 of the UN Charter and are described as “those which are necessary for the fulfillment of its/their purposes.” The

General Assembly may make recommendations to determine the details of the application of the particular immunities, which they did in the General Convention on the Privileges and Immunities of the United Nations and the

Convention and Privileges of Specialized Agencies. The Philippine courts have recognized the immunity of other

international organizations in International Catholic Migration

Commission v. Calleja (190 SCRA 130), Southeast Asian Fisheries Development Center v. Acosta (226 SCRA 49) and Lasco v. United Nations Revolving Fund for Natural Resources Exploration (241

SCRA 681). However, in the case of Kapisanan ng mga Manggagawa v.

International Rice Research Institute (190 SCRA 130, decided

jointly with the International Catholic Migration Commission case), IRRI was treated as an international organization despite being created via memorandum of agreement, not by treaty, by the

Philippine government and the Rockefeller and Ford Foundations. Although initially considered a private corporation with the SEC, IRRI was granted the status of an international organization in 1979

through PD 1620. The Court recognized it as a specialized agency on the same footing as the International Catholic Migration Commission, an international organization. The end result is that

employees who were seeking redress for violation of labor rights were rebuffed by the Supreme Court.

In the two cases involving the Asian Development Bank, of which treaty the Philippines is a signatory, the results were different. In one case, deciding whether or not the NLRC could take cognizance

of a case involving illegal dismissal against ADB, the immunity of ADB was upheld. However, in the other case, the immunity of an ADB employee was not upheld in the face of a criminal complaint

for grave oral defamation because the immunity could only be limited to acts performed in an official capacity, and it could not cover the commission of a crime.

United Nations’ Structure and Powers: The UN is a universal organization charged with peace-keeping, the development of friendly relations among nations, the achievement of international cooperation and the promotion of

human rights and fundamental freedoms for all human beings without discrimination (BASICALLY: peace, cooperation, friendly relations and human rights)

However, the UN is enjoined in intervening in matters which are within domestic jurisdiction of any state.

In the hierarchy of international organizations, the UN occupies a position of

preeminence. In the event of a conflict between international agreements between Member States and the UN Charter, the UN Charter must prevail.

Principal organs of the UN: General Assembly, Security Council, ECOSOC,

Trusteeship Council, Secretariat, ICJ and Other Agencies General Assembly: Where all member States are represented. It

exercises plenary powers, and may discuss any question or matter

within the scope of its Charter. It distinguished between “important questions” and “other questions.” Important questions are decided by an absolute majority (2/3) of the members voting and

present. Other questions require only a majority. The Charter identifies which questions are deemed important questions; the GA may include other important questions by majority vote.

Security Council: Primarily responsible for the maintenance of international peace and security. There are 15 member states, five of them permanent (China, France, Russia [in the place of the

former USSR, as agreed upon by the former Soviet Union], the United Kingdom and the United States—as the winners of World War II). The other seats are filled up by election to two-year terms

in accordance with equitable geographic representation. It distinguishes between “procedural matters” and “all other matters.”

• Matters which are not procedural only require nine affirmative votes, including the concurring vote of the permanent members. However, because the Charter

does not specify what matters are procedural and which are not, it is the practice of the Council that a decision on whether or not matters are procedural also requires the

concurrence of the permanent members. This makes the double veto by the permanent members possible. An abstention is considered a veto.

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ECOSOC: Has 54 member states elected for three year terms. Subsidiary organs include the UN Commission on Human Rights

and the Commission on the Status of Women Trusteeship Council: Supervises non-self governing territories.

Limited jurisdiction and has suspended operations, following

Palau’s independence in 1994. Secretariat: Comprises of a Secretary General and such staff as

the Organization may require. A Secretary General is elected to a

five year term by the General Assembly upon the recommendation of the Security Council, which is subject to veto power. He is the Chief Administrator and has the power to bring to the attention of

the Security Council any matter which may threaten the maintenance of international peace and security.

ICJ: Covered in another chapter.

Other Agencies: Other specialized agencies aside from the main organs of the UN—UN Educational, Scientific and Cultural Organization (UNESCO), the International Civil Aviation

Organization (ICAO), the World Health Organization (WHO), the Food and Agricultural Organization (FAO), the World Bank and the International Monetary Fund (IMF.)

Regional Organizations: Regional organizations also play important roles, but they are neither organs nor subsidiary agencies of the UN. They are autonomous international organizations having institutional affiliation with the

UN by concluding agreements with the UN. They are created pursuant to international agreements for the purpose of dealing with regional problems in general, or with specific matters like economic, military or political concerns.

ASEAN: In this region, the Philippines is one of the original Member Countries of the Association of South East Asian Nations (ASEAN), formed in 1967. The other original members are

Indonesia, Malaysia, Singapore and Thailand. Brunei Darussalam joined in 1984. Vietnam joined in 1995. Laos and Myanmar joined in 1997. Cambodia became the last member in

1999. It was created pursuant to the Bangkok Declaration, which sought to push for a joint effort to promote economic cooperation and the welfare of the people in the region.

It aims to promote economic, social and cultural development of the region through cooperative programs, to safeguard political and economic stability of the region, and to serve as a forum for the

resolution of intra-regional differences. Its goals are accelerated economic growth, social progress, cultural development, regional peace and stability through respect for justice and adherence to the

UN Charter. Comprises three pillars: ASEAN Security Community, ASEAN

Economic Community and ASEAN Socio-Cultural Community.

Fundamental principles: Mutual respect for independence and sovereignty, recognition of the right of every state to lead its national existence free from external influence, the non-interference

in internal affairs, peaceful settlement of differences, renunciation of the threat or use of force and effective cooperation. (Treaty of Amity and Cooperation in Southeast Asia [TAC])

All ten member States have already ratified the charter and it will take effect upon the deposit of all ratifications.

II. Insurgents and Liberation Movements

Protocol II: Only international agreement regulating the conduct of parties in a

non-international armed conflict—1977 Protocol II to the 1949 Geneva Conventions. It develops and supplements the Common Article 3 without modifying its existing application. It covers non-international armed conflict

and, if satisfied, grants them the status of a subject of international law as “para-statal entities possessing definite, if limited, form of international personality.” They may be recognized as having belligerent status against the

de jure government and other states are required to maintain neutrality towards them. They are also capable of entering into treaties.

Non-international armed conflict: Armed conflicts which take place

in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized groups under (1) responsible command which (2) exercise control over a

particular territory so that they can carry out sustained and concerted military operations (sustained capability to maintain themselves.)

Protocol II applies only when the two elements are present. The Philippine Government has maintained that Protocol II will not apply in the case of the National Democratic Front because they fail to

cross the threshold of Protocol II’s application. Inapplicable to situations of internal disturbances like riots, or such

other isolated and sporadic acts of violence, even if armed forces

are called to suppress the disorder.

Common Article 3: States that in case of non-international armed conflict,

contracting parties are required to treat humanely persons who do not partake of the hostilities at all times, without any adverse distinction as to race, class, etc. Acts of violence to life and person (mutilation, cruel

treatment, torture), hostage-taking, outrages upon personal dignity, carrying out of sentences and executions without those judicial guarantees recognized as indispensable by civilized peoples, with respect to the persons previously

mentioned, shall be prohibited at all times. The wounded and sick shall be cared for, and an impartial humanitarian body like the Red Cross may offer its services. The application of Common Article 3 does not make the conflict an

international one.

National Liberation Movements: Organized groups fighting in behalf of a

people for freedom from colonial groups; people fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.

First arose in Africa, then in Asia. Currently, liberation movements

are on the wane. Characteristics: May be based within the territory they are seeking

to liberate, or based in a friendly country—control of territory is not

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a necessary factor. Legitimacy comes from their goal of self-determination. Therefore, they have a goal of eventual control of a

definite territory, and an organization capable of coming into contact with other international organizations.

Once the goals are attained, they may claim status of international

subjects. Unilateral declaration: An authority representing the people engaged in

armed conflict against a High Contracting Party in Article I of the 1977

Geneva Convention (meaning non-international armed conflict) may seek to apply the Convention and the Protocols by means of unilateral declaration, which bring the Convention and Protocol into force immediately, and the

represented party assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the same Conventions and Protocol, making the latter agreements binding upon both of them.

III. Individuals

Individuals have increasingly become appropriate subjects of international

law because of greater global awareness of human rights, which have granted them limited rights and obligations in PIL.

Best examples are those individuals who have acquired obligations arising

from regulation of armed conflicts, making those behind certain actions fall under criminal responsibility. However, those who claim violations of their individual rights still have to rely on the enforcement power of states, but

come treaties have provided for the right of individuals to petition international bodies if a contracting state has violated some of their human rights.

Development of the International Criminal Court has allowed individuals to

have international legal personality; however, the Philippines is not a signatory.

CHAPTER SEVEN: TERRITORY—LAND, AIR AND OUTER SPACE

I. Territory in PIL

Territory: Element of a state; an area over which a State has effective control.

Control over territory is the essence of a State. Even if boundaries are uncertain, there is a definitive core over which sovereignty is exercised. Sovereignty over a portion of the surface of the globe is the legal condition for

the inclusion of such portion in the territory of any particular state. Includes land, maritime areas, airspace and outerspace.

Modes of acquisition: Discovery and occupation, prescription, cession,

conquest and subjugation, and accretion. Occupation: Acquisition of terra nullius (territory which belonged to

no one, or was effectively abandoned without intent of returning

prior to occupation). • Western Sahara Case (ICJ Advisory Opinion): WON

Western Sahara was considered terra nullius if they were

inhabited by organized tribes. The Court advised that any territory inhabited by peoples having a social or political organization cannot be considered terra nullius.

• Las Palmas Case (Perm. Crt.): WON the Island of Las Palmas belongs to the US (via ceding of Spain’s rights

over it through the Treaty of Paris) of to the Netherlands (via occupation and exercise of control). Ruling: Although the original title by discovery could be traced to Spain, it

never exercised control over the territory and therefore they only had inchoate title over the islands, because discovery alone could not suffice to prove sovereignty

over the territory—it needs to be coupled with control over it. Spain could not transfer more rights than she herself possessed. Its inchoate right cannot prevail over

a definite title founded on continuous and peaceful display of sovereignty, upon which the Netherlands founded their claim. The Arbitrator rules in favor of the

Netherlands. • Relative effective control may depend upon the nature of

the case. Where there are two or more claimants to a

territory, effective control is also relative to the strength of the claims.

• Eastern Greenlands Case (PCIJ): WON Denmark or

Norway’s claim to sovereignty will prevail. Ruling: Claims to sovereignty based upon continued displays of authority involves two elements—intention and will to act as

sovereign, and actual display of authority. In addition to that, the extent to which the sovereignty is also claimed by some other Power must also be taken into account, as

to which of the two is stronger. Because up to 1931 there was no other claim other than Denmark, and up to 1921 no one disputed the claim, the Court ruled in favor of

Denmark. Prescription: A recognized mode of acquisition requiring effective

control, but the object of prescription is not terra nullius. This makes

the required length of effective control longer than that of occupation. Prescription may be negated by a lack of acquiescence by the prior occupant.

Cession: The acquisition of property through treaty. A treaty of cession imposed by a conqueror is invalid, making what prevails merely a de facto regime.

Conquest: Taking possession of territory through armed force. For acquisition of conquered territory, it is necessary that war had already ended either by treaty or by indication of surrender. The

conqueror must have intended to acquire the territory indefinitely and not just occupy it temporarily. Conquest as a mode of acquisition is proscribed by PIL today. The latest instance of a

response to an attempted conquest is the action taken against Iraq when it invaded Kuwait.

Accretion or Avulsion: A kind of sovereignty by operation of nature.

Accretion is the gradual increase of territory by the action of nature while avulsion is a sudden change.

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Contiguity (when certain lands are deemed part of territory on the basis of closeness) is not a basis for sovereignty, with Las Palmas as argument

against it because it is impossible to show a rule of positive international law affirming contiguity as basis.

Intertemporal law: The view that the rules in effect at the time of the

acquisition should be applied.

II. Airspace

Prior to World War I, airspace was thought to be completely free. Because of the invention of airplanes and the outbreak of the war, there was a realization that the use of the air had security implications. It was then thought that

airspace is merely an extension of the territory below. Each state has exclusive jurisdiction over the air space above its territory,

and consent for transit must be obtained before passage is allowed.

Chicago Convention on International Civil Aviation created the International Civil Aviation Organization (ICAO) and prescribed ruled for civil aviation. The Chicago Convention is applicable only to

civil and not State aircraft, which are aircraft used in military, customs and police services.

• No state aircraft of any contracting states shall fly over

the territory of another state or land there without authority by special agreement or otherwise, and only according to the terms thereof. They will also have due

regard for the safety of navigation of civil aircraft. Flight over territory is divided into non-scheduled and scheduled. Non-scheduled flights: Contracting states making non-scheduled

flights have the right, subject to the observance of the convention, to make flights into and in transit non-stop across the territory and stops for non-traffic purposes without requiring prior permission,

subject to the State flown over’s right to require landing. The state making the NSF reserves the right to require aircraft wanting to proceed over inaccessible regions or those without adequate air

navigation facilities to obtain special permission for such flights or to follow prescribed routes.

Scheduled flights: No scheduled flights may be operated without

the special permission or authority of the State flown over, and in accordance with such terms laid down in the permit.

Cabotage (the transport of goods/passengers within the same

country): Each contracting State shall have the right to refuse permission to the aircraft of other contracting States to take on, within its territory, passengers, mail or cargo for pay/hire and

destined for another point within its territory. Every contracting State undertakes not to enter into arrangements which grant this privilege on an exclusive basis to any other State nor shall they

obtain any such privilege from any other State. Rationale: Chicago Convention attempts to protect civil aviation; however,

since then, a number of incidents have taken place, like the 1955 shooting of

an Indian aircraft by Bulgaria, the 1973 shooting of a Libyan aircraft by Israel, and the 1983 shooting of a Korean aircraft by Russia. As to the latter, Russia’s justification was based on its sovereign right to protect its airspace.

Flexible rule with respect to State aircraft: In 1953, it was suggested by Lissitzyn in an AJIL article that a flexible rule be adopted as to State aircraft,

in that the territorial sovereignty must not expose the aircraft and its occupants to unnecessary great danger in relation to the apprehended harmfulness of the intrusion. An aircraft must not be attacked unless there is

reason to suspect that the aircraft is a real threat, and even then, a warning must be relayed to land or change course before attacking. As to civilian aircraft, many have held that they must never be attacked. Even the Soviet

Union, as part of its justification in the preceding paragraph, predicated its attack upon the mistaken notion that the South Korean aircraft was an American reconnaissance aircraft.

III. Outer Space

The assertion under air space law used to be that air sovereignty extended

unlimitedly; this was changed by the development of outer space law. Thus, sovereignty over air space extends only until where outer space begins. There is no definite answer yet as to the delineation between air and outer

space. Outer space, it has been accepted, is not susceptible to appropriation by any

State.

1967 Treaty on the Exploration and Use of Outer Space: First achievement in outer space law.

Outer space shall be free for exploration and use by all States

without discrimination of any kind, on a basis of equality and in accordance with international law. There shall be free access to all areas of celestial bodies, freedom of scientific investigation, and

States shall encourage and facilitate international cooperation in such investigation.

States shall not place in orbit or install on any celestial bodies any

objects carrying nuclear weapons or any other kinds of weapons of mass destruction.

The Moon and other celestial bodies shall be used by all State

parties exclusively for peaceful purposes, and it shall be prohibited to establish military bases and to conduct military exercises on celestial bodies.

Astronauts shall be considered envoys of mankind in outer space and all States shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of

another State or on the high seas. When they land, they shall be returned to the State of registry of their space vehicle.

Any important data or information discovered which could constitute

a danger shall be relayed immediately to the State Parties or the Secretary General of the United Nations.

CHAPTER EIGHT: TERRITORY—THE LAW OF THE SEA

I. Maritime Law

Importance of the sea flows from two factors:

As a medium of communication

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As a carrier of vast natural resources Doctrine of the Open Seas: Despite the Portuguese believing that some

areas of the open sea belonged to it, Grotius elaborated on the doctrine of the open seas which considered the high seas as res communis or accessible to all. However, it has recognized as permissible the delineation of

a maritime belt by littoral states as an indivisible part of its domain called the territorial sea.

1982 Convention of the Law of the Sea (LOS): The sovereignty of a coastal

State extends beyond its land territory and internal waters and, if archipelagic, beyond its archipelagic waters, to an adjacent belt of sea called the territorial sea.

Sovereignty shall extend to the airspace above the territorial sea as well as its bed and subsoil.

Sovereignty shall be subject to this convention and PIL.

II. Territorial Sea

A belt of sea twelve (12) nautical miles from the baseline of the coastal State.

If the application of the 12-n.mile rule results in overlapping, the rule used is the equidistance rule, where the dividing line is the median line equidistant from the opposite baselines. However, this only applies if there is historic title

or other special circumstances requiring a different measurement. Baselines: The low water line along the coast as marked on large scale

charts officially recognized by the coastal State. The use of the low water

mark is most favorable to the coastal States and shows the character of the territorial waters as appurtenant to the land territory. (Anglo-Norwegian Fisheries Case)

Normal baseline method: Follows the low water line along the coast along its curvatures.

Straight baseline method: Traditionally used by archipelagic states,

where straight lines are drawn connecting selected points on the coast without appreciable departure from the general shape of the coast. This was first upheld in the Anglo-Norwegian Fisheries Case

when used by Norway. In the Philippines, RA 3046 and RA 5446 have drawn straight baselines around the Philippines.

• Article 7 and 47(1) of LOS upheld the use of the straight

baseline method for archipelagic states, subject to certain limitations.

• The main islands must be drawn within the straight

baselines, which join the outermost points of the outermost islands. The ratio of the land to the water included within the territory must be between 1 to 1 and 9

to 1. • Lengths of baselines must not exceed 100nm, except 3%

of the total number of baselines used to enclose the

territory. The 3% may exceed the length up to 125nm. • The baselines must not depart from the general

configuration of the archipelago. Baselines cannot be

drawn to and from low-tide elevations unless there are lighthouses or any similar installations permanently

above sea level and the elevation is not within the territorial sea of another State.

• The straight baselines must not cut off from the high seas or the exclusive economic zone the territorial sea of another State. If part of the archipelagic waters of an

archipelagic State lies in between two parts of an adjacent neighboring State, existing rights traditionally exercised by that neighboring State shall be respected.

• The baselines drawn according to this method shall be placed on charts or lists of geographical coordinates which shall be given due publicity. Copies of the chart/list

must be deposited with the Secretary-General of the UN. Sovereignty: Sovereignty over the territorial sea, the airspace above and the

bed and subsoil shall be exercised in the same manner as it is exercised on

land. Right of innocent passage: Territorial sea is subject to the right of innocent

passage by other States. The right applies to ships and aircraft; submarines

must surface. The right of innocent passage is passage that is not prejudicial to

the peace, good order or security of the coastal State. Thus, the

following acts are considered prejudicial and not subject to the right of innocent passage.

• Threat/use of force

• Use of weapons • Gathering intelligence reports/surveillance • Acts of propaganda affecting defense/security of the

coastal State • Taking onboard or launching of any aircraft or any

military device

• Loading of any goods contrary to law • Willful pollution contrary to LOS • Fishing activities

• Carrying out of research or survey activities • Acts aimed at interfering with communication systems or

any other facilities of the coastal State

• Any other activity with no direct bearing on passage Coastal states have the unilateral right to verify the character of

passage and to take necessary steps to prevent passage if it turns

out not to be innocent. As determined by the Corfu Channel Case, the right of innocent

passage is applicable to straits. In times of war, warships may pass

through straits, provided it is innocent. In times of peace, no State has the right to prohibit passage unless otherwise provided in an international convention.

III. Internal waters

All waters (part of the sea, rivers, lakes, etc.) landwards from the baseline of

the territory. Sovereignty: Same as in land. Right of innocent passage: NOT subject to RoIP.

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However, ports must be open to foreign vessels and can only be closed when vital interests of the State so requires. (Saudi Arabia v. Aramco) States may

regulate access to ports. (Nicaragua v. US)

IV. Archipelagic Waters

Internal waters + waters in between islands as enclosed by the use of the straight baseline method. These are called archipelagic waters and an archipelagic state may designate sea lanes and air routes suitable for

continuous and expeditious passage of foreign ships and aircraft through its archipelagic waters and the adjacent territorial sea.

Right of Innocent Passage: YES, there is RoIP.

Philippine Reservation to LOS: Because of this concept of archipelagic waters, there was a seeming conflict between the Philippine Constitution, which had considered those waters as internal waters (meaning, no RoIP.)

Because of this, upon its ratification of the LOS, it made the reservation as to: The convention’s non-impairment of the Philippine’s sovereign

rights arising from the Constitution, of its rights as successor to

the United States’ rights acquired through the Treaty of Paris (Spain to US) and the Treaty of Washington (UK to US), of its rights and obligations through the Mutual Defense Treaty with the

US, of its sovereign rights over the sea lanes and the deprivation of the RoIP over its straits connecting the internal waters with the special economic zone or the high seas.

The reservation is not necessary because the new rule in the LOS applies only to those waters which had not been previously considered as internal waters. The 1973 Constitution, which states

that the archipelagic waters are internal waters, predates the 1982 LOS.

V. Bays A well-marked indentation whose penetration is in such proportion to the

width of its mouth as to contain land-locked waters and constitute more than

a mere curvature of the coast. It is not a bay unless its area is as large as, or is larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation (LOS.)

Waters of a bay are considered internal waters. Measurement: Area of indentation is that lying between the low water mark of

the indentation and a line joining the low water mark of its natural entrance

points. The line measuring the internal waters shall not exceed 24nm; if the mouth of the bay is more than 24nm, then only the maximum area which may be enclosed by the 24nm shall be considered the internal waters.

Exceptions: The above method of measuring bays shall not apply to so-called historic bays, or where the system of straight baseline method applies. Historic bays are those which are treated by the coastal state as internal

waters on the basis of historic rights acknowledged by other states.

VI. Contiguous Zone

Area of water not exceeding 24nm from the baseline; it exceeds 12nm from the edge of the territorial sea.

Sovereignty: The coastal state exercises such authority to the extent necessary to prevent infringement of its customs, fiscal, immigration, or

sanitation authority over its territorial waters or territory, and to punish such infringement.

The power of control of the littoral state does not change the nature of the

waters. It is still beyond the territorial sea, considered as part of the high seas, and is not subject to the complete sovereignty of the coastal state.

VII. Exclusive economic zone or “patrimonial seas” The waters 200nm from the baseline. The doctrine of patrimonial seas

developed in light of conservation and management of coastal fisheries. A

coastal state has rights over the economic resources of the sea, seabed and subsoil—but the right does not affect the right of navigation and overflight of other states (meaning, RoIP cannot be deprived of foreign states.)

The provision imposes corresponding rights and obligations on coastal states relative to the exploitation, management and preservation of the resources found within the zone.

Two primary obligations: Coastal states must ensure through proper measures that the living

resources of the EEZ are not subject to over-exploitation. There is a

duty to maintain and restore populations of harvested fisheries at levels which produce maximum sustainable yield.

Coastal states must promote the objective of optimum utilization

of the living resources; if it cannot utilize or harvest the resources, it must grant access to other states.

Delimitation of the overlapping exclusive economic zone between adjacent

states is determined by agreement/treaty.

VIII. Continental/Archipelagic Shelf

Continental/archipelagic/insular shelf for archipelagos refer to: Seabed and subsoil of the submarine areas adjacent to the coastal

state BUT outside the territorial seas, up to a depth of 200m or,

beyond that, to where the depth allows exploitation. Seabed and subsoil of areas adjacent to islands.

Coastal state has the right to explore and exploit its natural resources, to

erect installations as needed and to erect a safety zone over its installations with a radius of 500m.

This application does not affect the right of navigation of others. Moreover,

the right does not extend to non-resource material on the shelf area such as wrecked ship and their cargoes.

IX. The Deep Seabed: “The Common Heritage of Mankind” Includes: Areas of the seabed, ocean floor and its subsoil, which lie beyond

any national jurisdiction. Being the common heritage of mankind, it may not

be appropriated by any state or person.

X. Islands

Naturally formed area of land, surrounded by water. It is above water at high tide.

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Its territorial sea, contiguous zones and continental shelf shall be determined in accordance with the provisions of the Convention applicable to other land

territory. Rocks which cannot sustain human habitation or economic life of their own

shall have no exclusive economic zone or continental shelf.

There is no clear definition in PIL of “economic life” Artificial islands or installations are not islands, but may be subject to safety

zones which coastal states may establish around them. Safety measures

may also be prescribed.

XI. High Seas

Article I, Geneva Convention: High Seas—all parts of the sea that are not included in the territorial sea or in the internal waters of a State.

Subject to six freedoms:

Freedom of navigation Freedom of overflight (belonging to both civil and State aircraft) Freedom of fishing

Freedom to lay submarine cables and pipelines Freedom to construct artificial islands and structures Freedom of scientific research

First four are from the 1958 Convention of the High Seas and the last two were added by the 1982 LOS, but the latter two are subject to restrictions.

The flag state has exclusive jurisdiction over its ships on the high seas to the

extent not limited by agreement because by legal fiction, a ship is a “floating” part of the flag state.

Freedom of fishing is qualified by the duty to cooperate in taking measures to

ensure the conservation and management of the living resources of the high seas.

Article 86: “The six freedoms apply to all parts of the sea not included in the

EEZ, in the territorial sea or the internal or archipelagic waters of a state.” However, this is not an indication of what constitutes high seas, because the EEZ is not a part of the territorial sea.

Doctrine of Hot Pursuit: Where there is good reason to believe that a foreign vessel has violated laws or regulations of a coastal state, hot pursuit is allowed. However, the pursuit must commence when the foreign vessel is

within internal waters, archipelagic waters or territorial waters, or the contiguous zone, and may be continued without interruption if it enters into the high seas. If the foreign vessel is in the contiguous zone, it may be

pursued only for violations of the coastal state in the contiguous zone. Hot pursuit must stop when the ship pursued enters the territorial

waters of its own state or that of a third party.

Hot pursuit may be carried out by warships or military aircraft. The I’m Alone case (AJIL): WON the US is liable for the sinking of a

vessel on the basis of hot pursuit. Ruling: Although the hot pursuit

was justified, the sinking of the vessel was not, and the US must pay damages and apologize to the Canadian government.

Settlement of Disputes: Peaceful settlement is compulsory and required by

law. If a bilateral statement fails, Article 285 requires submission of the dispute in one of the tribunals clothed with jurisdiction like the International

Tribunal for the LOS, the ICJ or an arbitral tribunal, constituted under the Convention.

CHAPTER NINE: JURISDICTION OF STATES

I. Jurisdiction The authority to affect legal interests; jurisdiction may follow the powers of

government—there is executive jurisdiction to enforce the norms prescribed,

legislative jurisdiction to prescribe norms of conduct, and judicial jurisdiction, jurisdiction to adjudicate.

PIL limits itself to criminal not civil jurisdiction, because civil jurisdiction is

subject of conflicts of law or private international law. Five principles of State jurisdiction:

Territoriality

Nationality Protective Universality

Passive Personality The first three are generally supported in customary law and the fourth has

special circumstances; the fifth does not enjoy wide acceptance.

Jurisdiction may be acquired via treaty.

II. The Territoriality Principle

The fundamental source of jurisdiction. A state has absolute but not necessarily exclusive power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory. This is why it is necessary to determine boundaries.

Rules on boundaries: Boundary separating two states is determined by acts of the states

expressing their consent to the location.

Thalweg doctrine: If the boundary between two states is a navigable river, its location is the middle of the channel, without prejudice to a different arrangement consented to.

If the boundary between two states is a non-navigable river or lake, its location is the middle of the river or lake, without prejudice to a different arrangement consented to.

To have jurisdiction, control must be established, along with occupation. Effects Doctrine: A state has jurisdiction over acts occurring outside its

territory but having effects within it.

Subjective territoriality: A state has jurisdiction to prosecute and punish crime commenced within the state but completed abroad.

Objective territoriality: A state has jurisdiction to prosecute and

punish crime commenced without the state but completed within its territory.

The Lotus Case (PCIJ): WON Turkey has jurisdiction over the offense committed against its vessel, the Boz-Kourt, which collided with a French steamer, the Lotus, near Constantinople, Turkey, causing the death of 8

Turkish national sailors. By virtue of filing criminal proceedings against Lt.

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Demons, the officer in charge of the Lotus at the time of the collision, it is contended by France that Turkey has violated international law; in reply,

Turkey alleged that no principle of IL conflicts with the act. Ruling: The Court held that there is no rule in PIL prohibiting the State to which the ship on which the effects of the offense have taken place belongs from regarding the

offense as having been committed within its territory and capable of prosecution. While this can be overturned by showing a rule of customary law which conflicts with it, France has not proven such. Therefore, there is no

rule. The Court therefore rules that it is a case of concurrent jurisdiction.

Jurisdiction over foreign vessels in the Philippines:

French rule: Crimes committed aboard a foreign merchant vessel should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed unless the commission

affects the peace and security of the territory. English rule: Followed in the US; crimes perpetrated under such

circumstances where the territoriality principle is applicable are in

general triable in the courts of the country within whose territory they were committed. The Philippines adheres to this rule.

Trail Smelter Arbitration: WON Canada is liable to the US for damages

caused by its smelter which produced emissions of sulphur dioxide allegedly damaging Washington state. Ruling: Yes, Canada is liable for damages since there was injury caused to the US, because a State owes at all times a duty

to protect other States against injurious acts by individuals from within its jurisdiction. The smelter is enjoined from causing further damage to the State of Washington.

III. The Nationality Principle

Every state has jurisdiction over its nationals, even when those nationals are

outside the state. Blackmer v. US (US): WON Blackmer was correctly adjudged in

contempt for failure to respond to subpoenas served upon him in

France requiring him to appear as witness in behalf of the US and WON the statute authorizing the issuance of subpoenas is repugnant to the Constitution for violation of the due process

clause. Ruling: Even if Blackmer became a resident of France, he continued to owe allegiance to the United States and the US retained its authority over him. He was bound by its laws made

applicable to him in a foreign country.

State nationals and the “effective nationality link”: A state has the right to

decide who its nationals are using either the principle of jus sanguinis or jus soli or naturalization laws. However, before a person can be claimed by a state as a national, there must be established an effective nationality link.

Consent of the individual alone is not enough. Nottebohm Case (ICJ): WON Nottebohm, a German national by

birth, constant fixture in Guatemala and newly claimed

Liechtenstein national by naturalization, can be claimed by Liechtenstein as its national in a case for reparations over the protests of Guatemala, Ruling: Liechtenstein cannot claim

Nottebohm as its national, despite valid fulfillment of its naturalization laws because of failure to satisfy the effective

nationality link sufficient for Liechtenstein to extend and exercise protection for him. Evidence against him: he was a habitual resident of Guatemala, it being the center of his interests and of his

business activities. Nationality is a legal bond, concerning the citizen personally, a genuine connection of existence, interests and sentiments together with the existence of reciprocal rights and

obligations. Corporations: A state has jurisdiction over corporations organized under its

rules. Other bases: Principal residence/place of business test, control test.

Stateless persons: Those who do not have a nationality. They may be either

de jure or de facto stateless. The former are those who lost their nationality, if

they had one, and have not acquired a new one, while the latter are those who have a nationality but to whom protection is denied by their state when out of the state.

Mejoff v. Director of Prisons (90 Phil. 70): WON Boris Mejoff, a former Russian national who was brought to the Philippines as a spy for Japanese forces and subsequently detained for two years

because no ship would take him, and he lacked travel documents, should be released. Ruling: Even if they are stateless, aliens have no right of asylum, If there is no charge against them, However,

they cannot remain in detention indefinitely. Because he was brought in by a de facto corporation, his entrance was not illegal. Mejoff should be released but placed under the surveillance of

qualified immigration authorities.

IV. The Protective Principle

A state may exercise jurisdiction over conduct outside its territory what threatens its security so long as that conduct is generally recognized as criminal by states in the international community.

“Lord Haw Haw:” A decision upholding the conviction of an American citizen guilty of high treason because of messages he broadcast trying to get the Allies to surrender. No principle of comity demands that a state should ignore

the crime of treason committed against it outside its territory. Limitations: Only offenses posing a direct, specific threat to national security.

When applied to terrorist activities, a more liberal approach to the limitation

may be applied.

V. The Universality Principle

Certain activities, universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in

question. This principle was started with instances of piracy. Piracy means any illegal

act of violence or depredation committed for private ends on the high seas or

outside the territorial control of any State.

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Currently covers genocide, crimes against humanity, war crimes, aircraft piracy and terrorism. Growing support for universal jurisdiction over crimes

against human rights. Genocide: Acts committed with intent to destroy, in whole or in part, a

national, ethnical, racial or religious group, as such:

Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to

bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group.

Crimes against humanity: Any of the following acts when committed as part of a wide-spread or systematic attack (where “attack directed against any civilian population” means the multiple commission of the following acts

against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such an attack) against any civilian population with knowledge of the attack:

Murder; Extermination – includes intentional infliction of conditions of life,

the deprivation of access to food and medicine, calculated to bring

about the destruction of part of a population; Enslavement – the exercise of any or all of the powers attaching to

the right of ownership over a person and includes the exercise of

such power in the course of trafficking persons, in particular women and children;

Deportation or forcible transfer of population – forced displacement

of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under int’l law;

Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

Torture – intentional infliction of severe pain or suffering, physical or

mental, upon a person in the custody or under the control of the accuser; does not include pain or suffering arising from, inherent, or incidental to lawful sanctions;

Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity – forced pregnancy is the unlawful confinement

of a woman forcibly made pregnant with the intent of affecting the ethnic composition of any population;

Persecution against any identifiable group or collectivity on political,

racial, national, ethnic, or other grounds – intentional and severe deprivation of fundamental rights contrary to int’l law by reason of the identity of the group or collectivity;

Enforced disappearance of persons – arrest, detention or abduction of persons by, or with the authorization, support, or acquiescence of a State or a political organization, followed by a refusal to

acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of

removing them from the protection of the law for a prolonged period of time;

Apartheid – inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group with the intention of

maintaining that regime. Other inhumane acts of a similar character intentionally causing

great suffering, or serious injury to body or to mental or physical

health. War crimes: Grave breaches of the Geneva Conventions of 1949.

Filartiga v. Pena-Irala (F.2D US): WON the US Court has jurisdiction over a case concerning the wrongful death of a 17-year old tortured to death in Paraguay, brought by two nationals of Paraguay, on the basis of the Alien

Tort Act. Ruling: Yes, it has jurisdiction, claiming the universality principle. The requisites of torture require it to be committed by one in an official capacity, and its prohibition has become part of customary international law.

Several declarations and documents, including the Universal Declaration of Human Rights, have created an expectation of adherence among its member states.

Eichmann Cases (Courts of Israel): WON Israel has jurisdiction to try the

case of a high-ranking SS officer on the basis of the Nazi Collaborator’s Law, a law intending retroactive application, despite the acts being committed outside its borders by a person who is not a national. Ruling: The power of

Israel to enact the law is based on a dual foundation—the universal character of the crimes in question and their specific character as intended to exterminate the Jewish people. The offense of genocide is a grave offense

against the law of nations itself (delicta juris gentium) and is the gravest type of act against humanity. In this case, it is a just retroactive law. As to the universality principle, power is vested in every State regardless of the fact

that the offence was committed outside its territory by a person who did not belong to it, provided he is in its custody at the time he is brought to trial.

VI. The Passive Personality Principle Asserts that a state may apply law—particularly criminal law—to an act

committed outside its territory by a person not a national where the victim of

the act was its national. The principle is not accepted for ordinary torts or crimes, but it is increasingly

accepted as applied to terrorist attacks and other organized attacks on a

state’s nationals on the basis of their nationality. US v. Fawiz-Yunis (Federal US): WON the US Court has jurisdiction over a

criminal proceeding against the several Arab men who hijacked a Jordanian

airline on the basis that some of the nationals taken hostage were Americans. Ruling: Yes, the Court has jurisdiction under the universality principle and under the passive personality principle. As to the latter, it

recognizes that states have a legitimate interest in protecting the safety of its citizens when they journey outside national borders. Even though it is the most controversial of the five sources of jurisdiction, it is agreed that the

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international community recognizes the legitimacy of the Passive Personality Principle.

Rationale: The reason why this is so frowned upon is because any assertion of this kind of jurisdiction may subject a country to indefinite criminal liability; a country may be subject to laws not their own and may be arrested for

committing acts which they do not know to be illegal.

VII. Conflicts of Jurisdiction

Because of the various ways of a state to assume jurisdiction, there may be instances of conflicting yet valid claims of jurisdiction.

The Balancing Test—Timberlane Lumber Co. v. Bank of America: Tripartite

analysis to determine WON a US Court can assume jurisdiction over an antitrust claim. If the answer is yes to all of the questions below, the court assumes jurisdiction.

Was there an actual or intended effect on American foreign commerce? (There must be an effect before federal courts can exercise subject matter jurisdiction under the Sherman Act statutes)

Is the effect sufficiently large to present cognizable injury to the plaintiffs and represent a civil violation of the anti-trust laws? (To show that there is a greater burden)

Are the interests of and link to the US including effects on American foreign commerce sufficiently strong, versus those of other nations, to justify an assertion of extraordinary authority?

Balancing test: Degree of conflict with foreign law or policy The nationality or allegiance of the parties the locations or principal

places of business of corporation The extent to which enforcement by either state can be expected to

achieve compliance

The relative significance of effects on the U.S. as compared with those elsewhere

The extent to which there is explicit purpose to harm or affect

American commerce, the foreseeability of such effect The relative importance to the violations charged of conduct with

the US as compared with conduct abroad.

International comity—Hartford Fire Insurance Co. v. California: Even when a state has basis to exercise jurisdiction, it will refrain from doing so if its exercise will be unreasonable.

Unreasonableness is determined by evaluating various factors—link of the activity to the territory of the regulating state, the connection (such as nationality, residence, economic activity)

between the regulating state and the person principally responsible for the activity to be regulated, the character of the activity to be regulated, the existence of justified expectations that might be

regulated, the existence of justified expectations that might be protected or hurt by the regulation, the likelihood of conflict with regulation by another state.

Forum non conveniens—Piper Aircraft Co. v. Reyno: Discretionary application of the court. Applies when, in the circumstances of the case, it be discovered that there is a real unfairness to one of the suitors in permitting

the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its

being the locus contractus or locus solutionis, then the doctrine of forum non conveniens is properly applied.

The court needs to weigh the private interest and the public interest

factors. The private interest factors are:

• Access to sources of proof

• Availability of compulsory process for unwilling witnesses • Other personal problems which make trial easy,

expeditious, and inexpensive.

The public interest factors are: • Congestion • Desire to settle local controversies at home

• Having the case tried in a forum at home with the applicable law.

VIII. Extradition The surrender of an individual by the state within whose territory he is found

to the state under whose laws he is alleged to have committed a crime. It is a

process governed by treaty, and the legal right to demand extradition and the correlative duty to surrender a fugitive exist only when governed by treaty. Extradition is normally done through diplomatic channels.

No state is obliged to extradite unless there is a treaty. Differences in legal system can be obstacles to interpretation of

what the crime is

Religious and political offenses are not extraditable. US v. Alvarez-Machain (US): WON the US Court has jurisdiction over Alvarez

who is indicted for participation in the kidnap and the murder of a DEA agent

and Mexican pilot. Ruling: Yes, they do. The forcible abduction of Alvarez did not violate the extradition treaty between US and Mexico because nothing in the treaty proscribes forcible abduction because it does not specify the ways

by which a State may gain custody of a national of the other country for the purposes of prosecution.

Due Process in Extradition: Secretary of Jusice v. Lantion: WON notice and

hearing are essential during the evaluation stage of the proceedings. Ruling: There is no provision in the RP-US Extradition Treaty that gives the right to demand copies of the extradition requests. The likening of an extradition to a

criminal procedure is not persuasive because an extradition is sui generis and does not involve the determination of guilt.

Bail in Extradition Cases: A court may grant bail after the determination by

the court that (1) he/she is not a flight risk, and (2) There exist special, humanitarian and compelling circumstances. (Rodriguez v. Judge)

Lately, the Court overturns stare decisis in favor of the growing

importance of the individual person in PIL, who has attained global recognition, the higher value being given to human rights in the international sphere.

If bail can be granted in deportation proceedings, there is no justification not to allow it for extradition because both are

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administrative proceedings where the innocence or guilt of the parties is not in issue.

CHAPTER TEN: IMMUNITY FROM JURISDICTION

I. Immunity General rule: The jurisdiction of a state within its territory is complete and

absolute

Exceptions: Sovereign immunity and diplomatic immunity

II. Head of State Immunity

Immunity is enjoyed by the head of state and by the self itself. While the head of State is sitting, the immunity is absolute.

Mighell v. Sultan of Johore: WON the Sultan of Johore can be sued for

breach of promise to marry. Ruling: The Court ruled that the subject matter of the case was a private matter, and upon verification of the Sultan’s foreign sovereignty, the case was dismissed because the immunity of heads of state

was recognized. Pinochet Case (UK): WON a former Head of State can enjoy immunity

rationae materiae in relation to acts done by him as Head of State. Ruling:

The immunity for former heads of state shields only acts which were done in an official or governmental capacity. It cannot be said that international crime against humanity and jus cogens can ever be done in a governmental

capacity; therefore, upon relinquishment of his seat, a head of state may be liable to be called to account if there is evidence that he authorized or perpetrated serious international crimes. It is also argued that absolving Pinochet on the basis of immunity RM would circumvent the system of

making people liable for the international crime of torture.

State Immunity: “The state may not be sued without its consent”

Found in both municipal and international law. Based on the principle of equality of states—par in parem non

habet imperium.

The Schooner Exchange case: “The nation within its own territory is necessarily exclusive and absolute; however, absolute sovereignty does not include the presence of foreign sovereigns nor their

sovereign rights as its objects.” The immunity of the sovereign head is also communicated to the

foreign sovereign state. Every sovereign is understood to waive the

exercise of a part of that complete exhaustive territorial jurisdiction, which is the attribute of every nation.

Acts jure imperii v. Acts jure gestionis: The distinction drawn between acts

jure imperii (governmental acts) and acts jure gestionis (trading and commercial acts) are elaborated on in Dralle v. Czechoslovakia.

Dralle case (Austria): It can no longer be said that acts jure

gestionis are exempt from municipal jurisdiction. The immunity as regards acts jure gestiontis, when the State’s actions as regards trading and commercial activity were usually limited to commercial

acts, developed out of political activities such as the purchase of

commodities for diplomacy or war. Today, however, it has become commonplace for the State to enter into the free market and even

enter into direct competition with their own nationals. It must follow that the immunity that initially developed has ceased to become applicable.

Traditional rule on State Immunity exempts a state from being sued in the

courts of another State without its consent or waiver. A State’s commercial

activity is a descent to the level of individuals and there is a form of tacit consent to be sued when it enters into business contracts with others.

Holy See v. Eriberto Rosario, Jr. However, not every contract

entered into is a form of tacit consent to be sued. It depends upon whether the foreign state is engaged in the activity in the regular course of business. If not, or it is in pursuit of a sovereign activity, it

falls within the exemption of acts jure imperii especially when not intended for gain or profit.

A state claiming sovereign immunity must request the Foreign

Office of the state where it is sued to convey to the Court that said defendant is entitled to immunity.

A party who feels transgressed by anyone claiming immunity may

ask his own government to espouse his cause through diplomatic channels.

Republic of Indonesia v. Vinzon: WON the Republic of Indonesia, represented by Chief of Administration, Minister Counsellor Kasim, enjoys immunity in a case concerning a maintenance agreement. Ruling: The Court

ruled in favor of Indonesia, and stated that international law is founded on principles of reciprocity, comity, independence and equality of States. The existence alone of a paragraph in the maintenance agreement allowing for

certain actions to be tried in a venue does not constitute a waiver of sovereign immunity from suit.

III. Diplomatic and consular immunities Vienna Convention on Diplomatic Relations governs diplomats, or those

concerned with the political relations of states. Immunities and privileges

enjoyed stem not from sovereignty but to be able to perform his or her functions properly.

Diplomatic immunity is enjoyed by:

Head of the mission – the person charged by the sending State with the duty of acting in that capacity;

Members of the mission – the head of the mission and the

members of the staff of the mission; Members of the staff of the mission – the members of the

diplomatic, administrative, technical and service staff of the

mission; Members of the diplomatic staff – members of the staff of the

mission having diplomatic rank;

Diplomatic agent – head of the mission or a member of the diplomatic staff of the mission

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Members of the administrative and technical staff – members of the staff of the mission employed in the administrative and technical

service of the mission; Members of the service staff – members of the staff of the mission

in the domestic service of the mission;

Private servant – a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;

Premises of the mission – buildings or parts of the buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission, including the residence of the head of the

mission. Functions of the diplomatic mission:

Representing the sending State in the receiving State;

Protecting in the receiving State the interest of the sending State and of its nationals, within the limits permitted by international law;

Negotiating with the government of the receiving State;

Ascertaining by all lawful means conditions and developments in the receiving state, and reporting thereon to the Government of the sending State;

Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

Establishment of diplomatic relations: Relations are established by mutual consent. Agreements must first

be obtained before the head of a mission is sent to the receiving

State. The receiving state is not obliged to give reasons for refusing an agreement and, at any time and without need to give explanations, upon notice to the sending state, may declare the

head of mission or any member of the diplomatic mission as persona non grata. A person declared persona non grata is declared as not acceptable, and the sending State shall recall the

person or terminate his functions.

It is the duty of all persons enjoying the privileges and immunities of

diplomats to respect the laws and regulations of the receiving State.

IV. Consuls and Consular immunities

Consuls are not concerned with political matters but with administrative and economic issues, such as the issuance of visas.

Functions of Consuls:

1. Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by int’l law;

2. Furthering the development of commercial, economic, cultural,

and scientific relations between the sending state and the receiving state and promoting friendly relations between them;

3. Ascertaining all lawful means, conditions, and developments in

the commercial, economic, cultural, and scientific life of the receiving State, reporting thereon to the Government of the sending state and giving information to interested persons;

4. Issuing passports and travel documents to nationals of the sending State, reporting thereon to the Government of the sending

State, and visas or appropriate documents to persons wishing to travel to the sending State;

5. Helping and assisting nationals of the sending State;

6. Acting as notary and civil registrar; 7. Safeguarding the interests of national of the sending State in

case of succession mortis causa in the territory of the receiving

State; 8. Safeguarding the interests of minors and other persons lacking

full capacity who are nationals of the sending State, particularly

where any guardianship or trusteeship is required; 9. Representing or arranging appropriate representation for

nationals of the sending state before the tribunals and other

authorities of the receiving state to preserve their rights and interests;

10. Transmitting judicial and extra-judicial documents or executing

letters rogatory or commissions to take evidence for the courts of the sending state;

11. Exercising rights or supervision and inspection in respect of

vessels having the nationality of the sending state and or aircraft registered in that state and in respect of their crews;

12. Extending assistance to vessels and aircraft mentioned above

and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s papers, and conducting investigations into any incidents which occurred during the voyage

and settling disputes between master, officers, and seamen; 13. Other functions entrusted by the sending state not prohibited by

the laws and regulations of the receiving state or to which no

objection is taken by the receiving state or which are referred to in the international agreements in force.

Act of State Doctrine Local courts cannot pass upon the validity of the acts of a foreign

state; Judicial restraint in domestic law in deference to the

executive who is the principal architect of foreign relations. All acts concerning the act of State doctrine concern political and

legislative acts, but never judicial.

Underhill v. Hernandez: WON Underhill is entitled to damages from

Hernandez based on the latter’s refusal to grant him a passport to

leave the country and on the assertions that he had been kept in detention by Hernandez. Ruling: Underhill is not entitled to damages because of the “act of state doctrine” Courts of one state

will not sit in judgment on the acts of the government of another, done within its own territory.

Dunhill v. Cuba: WON Cuba’s failure to return the overpayment

made by Dunhill on cigars can be considered as an act of state. Ruling: No, it is not an act of state. An act of state cannot extend to include the repudiation of a purely commercial obligation.

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Kirkpatrick Co. v. Environmental Tectonics Corporation: WON Kirkpatrick & Co. can get the case (where he is accused of bribing

Nigerian officials to win a bidding war contrary to the Foreign Corrupt Practices Act) against it dismissed by invoking the act of State doctrine. Ruling: No, it cannot be invoked. It is not the validity

of a foreign act at issue; the act of state doctrine does not establish exceptions for controversies, but merely requires that acts of foreign sovereigns within their jurisdictions shall be deemed valid.

Provincial Government v. Placer Dome: WON the district court had jurisdiction over the case based upon the act of state doctrine such that removal from state to federal court was proper (on the grounds

that, by raising the act of state doctrine, the case would be moved to the federal court from the district court because it tendered questions of international law and foreign relations.) Ruling: The

Court reverses the decision of the district court, which was done pursuant to a claim by Placer Dome. It must be shown on the plaintiff’s complaint that it is attacking the validity of any act of a

foreign state, or else a rejection of the act of state doctrine is proper. None of the supposed acts of state identified by the district court as justification to raise it to the federal court is essential to the

claim of Province. Nothing in the complaint would require a court to pass judgment on any official act of the Philippine government. “Just as raising the specter of political issues cannot

sustain dismissal under the political question doctrine, neither does a general invocation of international law or foreign relations mean that an act of state is an essential element of a claim.” It cannot be

thought that every case touching foreign relations lies beyond judicial cognizance.

APPENDICES—CHAPTER TEN: IMMUNITY FROM JURISDICTION Rights and privileges of diplomats:

Article 22 – Inviolability of Premises of the Mission:

• The premises of the mission shall be inviolable. Agents of the receiving State may not enter them, except with the consent of the head of the mission.

• The receiving State is under a special duty to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the

mission or impairment of its dignity. • The premises of the mission, their furnishings and other

property thereon and the means of transport of the

mission shall be immune from search, requisition, attachment, or execution.

Article 23 – Exemption from Property Taxes:

• The sending State and head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether

owned or leased, other than such as represent payment for specific services rendered.

• Exemption from taxation is NOT applicable to dues and taxes payable under the law of the receiving State by

persons contracting with the sending State or the head of the mission.

Article 24 – Inviolability of Archives and Documents

• Archives and documents of the mission shall be inviolable at any time and wherever they may be.

Article 27 – Inviolability of Official Correspondence

• The receiving State shall permit and protect free communication on the part of the mission for all official purposes. The mission may employ all appropriate

means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the

receiving state. • Official correspondence of the mission shall be inviolable.

Official correspondence means all correspondence

relating to the mission and its functions. • The diplomatic bag shall not be opened or detained. • Packages constituting the diplomatic bag must bear

visible external marks of their character and may contain only diplomatic documents or articles intended for official use.

• The diplomatic courier shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of

arrest or detention. • The sending State of the mission may designate

diplomatic couriers ad hoc who shall enjoy the immunities

of a diplomatic courier until he has delivered to the consignee the diplomatic bag in his charge.

Article 29 – Inviolability of Person of the Diplomatic Agent

• The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall

take appropriate steps to prevent any attack on his person, freedom or dignity.

Article 30 – Inviolability of the Private Residence, Papers,

Correspondence, and Property of the Diplomatic Agent • Same protection granted to the residence, papers,

property, and correspondence of the diplomatic agent as

that granted to the premises of the mission. Article 31 – Immunity from Criminal, Civil, and Administrative

Jurisdiction

• A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

• He shall also enjoy immunity from its civil and

administrative jurisdiction EXCEPT: o a. in real actions relating to private immovable

property situated in the territory of the receiving

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State, unless he holds it on behalf of the sending State for the purposes of the mission;

o b. in actions relating to succession in which the diplomatic agent is involved as executor, administrator, heir, or legatee as a private

person; o c. in actions relating to any professional or

commercial activity exercised by the diplomatic

agent in the receiving State outside of his official functions.

• A diplomatic agent is not obliged to give evidence as a

witness. • A diplomatic agent is exempt from execution except if the

case falls under the three exceptions under #2, and

provided that the measures of execution can be taken without infringing the inviolability of his person or his residence.

• The diplomatic agent is not exempt from the jurisdiction of the sending state.

Article 32 – Waiver of Immunity

• Immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Art. 37 may be waived by the sending State.

• Waiver must be express. • The initiation of proceedings by a diplomatic agent or by

a person enjoying immunity from jurisdiction under Art.

37 shall preclude him from invoking immunity in respect of any counter-claim directly connected with the principal claim.

• Waiver of immunity in respect of civil or administrative proceedings shall not be held to imply waiver of immunity from execution of the judgment, for which a separate

waiver is necessary. Article 33 – Exemption from Social Security Provisions

• A diplomatic agent shall be exempt from social security

provisions with respect to services rendered for the sending state.

• The exemption also applies to private servants who are

in the sole employ of a diplomatic agent, provided: o a. that they are not nationals or permanent

residents of the receiving state; and

o b. they are covered by the social security provisions in force in the sending state or a third state.

• A diplomatic agent who employs persons to whom the exemption in #2 does not apply, shall not be exempt from social security provisions of the receiving state imposed

upon employers.

• But the diplomatic agent can voluntarily participate in the social security system of the receiving state, provided

that it is permitted by the receiving state. Article 34 – Exemption from Taxation

• A diplomatic agent shall be exempt from all dues and

taxes, personal or real, national, regional or municipal, EXCEPT:

o Indirect taxes normally incorporated in the

price of goods or services; o Dues and taxes on private immovable property

situated in the territory of the receiving state,

unless held on behalf of the State for the purposes of the mission;

o Estate, succession, or inheritance tax;

o Dues and taxes on private income derived within the State and capital taxes on investments made in commercial undertakings

in the receiving State; o Charges levied for specific services rendered; o Registration, court or record fees, mortgage

dues, and stamp duty with respect to immovable property.

Article 36 – Exemption from Customs Duties

• The following are exempt from customs duties, taxes and other related charges for storage, cartage, and other similar services:

o a. articles for official use of the mission; o b. articles for the personal use of a diplomatic

agent or members of his family forming part of

his household, including articles intended for his establishment.

• Personal baggage of a diplomatic agent shall be exempt

from inspection unless there are serious grounds to presume that it contains articles not covered by the exempted items above, or that are prohibited or

controlled by quarantine regulations of the receiving State. The inspection shall be conducted only in the presence of the diplomatic agent or his authorized rep.

Article 37 – Immunity of members of the family and other staff • Members of the family of a diplomatic agent forming part

of his household shall, if they are not nationals of the

receiving State, enjoy the privileges and immunities in Articles 29-36.

• Members of the admin and technical staff of the mission,

together with their family members, who are not nationals or permanent residents of the receiving state shall enjoy the immunities under Articles 29-35, except that the

immunity from civil and administrative jurisdiction shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges under Art. 36,

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in respect of articles imported at the time of first installation.

• Members of the service staff of the mission who are not nationals or permanent residents of the receiving State shall enjoy immunity in respect of acts performed in the

course of their duties, exemption from dues and taxes on the emoluments received by reason of their employment, and the exemption granted in Art. 33.

• Private servants or members of the mission who are not nationals or permanent residents in the receiving State shall be exempt from dues and taxes on emoluments

received by reason of their employment. In other respects, they may enjoy privileges and immunities to the extent admitted by the receiving State.

Article 38 – Immunity of Diplomatic Agents who are Nationals of Permanent Residents of the Receiving State

• If the receiving State grants additional privileges and

immunities, a diplomatic agent who is a national of or permanent resident in the State shall enjoy only immunity from jurisdiction and inviolability in respect of official acts

performed in the exercise of his functions. • Immunity or other members of the staff of the mission

and private servants who are nationals or permanent

residents: Only to the extent admitted by the receiving state. But state must exercise its jurisdiction without unduly interfering with the performance of the functions of

the mission. Article 39 – Commencement and Termination of the Immunities

• The immunities commence from the moment the person

enjoying the immunities enters the territory of the receiving State on proceeding to take up his port or, if already in its territory, from the moment when his

appointment is notified to the Ministry of Foreign Affairs. • They end when the functions of a person enjoying

immunity have come to an end, the immunities cease at

the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict.

• With respect to acts performed by the person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

Article 41 – Duty of Persons Enjoying Immunity • Duty is to respect the laws and regulations of the

receiving State.

Article 42 – Prohibitions • They may not practice for personal profit any professional

or commercial activity in the receiving State.

Rights and privileges of Consuls:

Article 34 – Freedom of Movement

• Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of

national security, the receiving state shall ensure freedom of movement and travel in its territory to all members of the consular post.

Article 35 – Freedom of Communication • The receiving State shall permit and protect free

communication on the part of the consular post for all

official purposes. The mission may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags, and messages in code or

cipher. However, the consular post may install and use a wireless transmitter only with the consent of the receiving state.

• Official correspondence of the consular post shall be inviolable. Official correspondence means all correspondence relating to the consular post and its

functions. • The consular bag shall not be opened or detained. But if

the competent authorities of the receiving state have

serious reason to believe that the bag contains something other than the correspondence, documents or articles, they may request that the bag be opened by an

authorized rep of the sending state. If the request is refused, the bag shall be returned to its place of origin.

• Packages constituting the consular bag must bear visible

external marks of their character and may contain only diplomatic documents or articles intended for official use.

Article 36 – Communication and Contact with Nationals of the

Sending State • Consular officers shall be free to communicate with

nationals of the sending state and to have access to

them. Nationals of the sending state shall have the same freedom to communicate and to access consular officers of the sending state.

• If he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending state if a national of that state is

arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the

person arrested shall be forwarded by the authorities without delay;

• Consular officers shall have the right to visit a national of

the sending state who is in prison, custody, or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to

visit any national of the sending state who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain

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from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

Article 41 – Personal Inviolability of Consular Officers • Consular officers shall not be liable to arrest of detention

pending trial EXCEPT in the case of a grave crime and

pursuant to a decision by the competent judicial authority. Article 42 – Notification of Arrest, Detention, or Prosecution

• If a members of the consular staff is arrested or detained,

the receiving state shall notify the head of the consular post.

Article 43 – IMMUNITY FROM JURISDICTION

• Consular officers and employees shall be immune from jurisdiction of the judicial and administrative authorities of the receiving State in respect of acts performed in the

exercise of consular functions. • NO IMMUNITY in civil cases, which:

o a. arise out of a contract concluded by the

consular officer or employee in which he did not contract expressly or impliedly as an agent of the sending state;

o b. are instituted by a third party for damage arising from accidents in the receiving state caused by a vehicle, vessel, or aircraft.

Article 44 – Liability to Give Evidence • Members of a consular post may be called upon to attend

as witnessed in judicial or administrative proceedings.

• A consular employee or a member of the service staff shall not decline to give evidence.

• If a consular officer should decline to do so, no coercive

measure or penalty may be applied to him. Article 45 – Waiver of Privileges and Immunities

• The sending state may waive the privileges and

immunities.

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CHAPTER ELEVEN: STATE RESPONSIBILITY

I. In General

Individuals are generally considered as “objects” and not “subjects” of international law. Any wrongs committed against them can only be

redressed by states with international personality. They possess no international legal rights to assert on their own.

However, individuals may be the subject of state v. state litigation.

II. Protection of Aliens General: As an aspect of sovereignty, no state is obliged to admit aliens

into its territory unless a treaty requires it. However, practically speaking,

it is difficult to deny admission to all. Therefore, what a state does is to impose legal standards for admission.

• Once an alien is admitted into a state, he/she cannot be expelled without due process.

Proper treatment of aliens: They are considered “nationals abroad” and remain under its own state’s protection.

• Practice of proper treatment of aliens is based on the commonality of interests between states, in the expectation that a State’s own nationals will be protected when residing or

sojourning abroad. • Mistreatment of nationals is a common cause of international

responsibility

• Various forms of ill-treatment: Mistreatment by judicial or police authorities, unlawful expropriation of property, failure to prosecute those who attack foreign nationals, or a denial of

justice (denial of due process of the law). • Diplomatic Protection: Well-developed customary law which is

based on the traditional notion that the individual is an

inappropriate subject of international law and must have recourse to his state for protection. Another applicable theory is that injury to the state national is injury to the state itself. This

keeps individuals at the mercy of their state, because the latter enjoys discretion as to whether or not to prosecute the claims of its national. This doctrine requires the satisfaction of the

“effective national link” between the national and the state.

Corporations and shareholders: It is the state of nationality of the corporation who has the right to protect the corporation and not the state

nationality of its shareholders. • Barcelona Traction Case (Belgium v. Spain): WON Belgian

nationals/shareholders of a company incorporated in Canada

could claim reparation for damages against Spain when the latter state declared it to be bankrupt. The Court held that the Belgians lacked legal standing to exercise diplomatic protection

of their shareholdings in Barcelona Traction, which was incorporated in Canada, because the breach (if any) was

committed against the corporation and not against the shareholders, and only the company could protect its own interest. To be different, the act must be directed against the

rights of the shareholder as such.

Standard for the Protection of Aliens: International law has progressed from not affording aliens protection to Roman law, which came up with

the concept of jus gentium (a law for both citizens and aliens) as distinct from jus civile (only for citizens). The rights of aliens expanded with the growth of international commerce.

• “National treatment” or “equality of treatment”: Aliens are treated in the same manner as nationals of the state where they reside. The disadvantage to this is that a state may treat

its own nationals oppressively, which would make aliens subject to harsh laws as well.

• Minimum international standard: However harsh municipal law

may be, aliens should be protected by certain minimum standards of humane protection. This is the widely accepted standard.

Neer Claim (US v. Mexico, Joint Claims Commission): WON Mexico was negligent in the investigation of the murder of a US national who was

stopped by armed men and shot to death while working in Mexico. The Commission held that the treatment of an alien, to constitute international

delinquency, should amount to an outrage, bad faith or wilful neglect of duty, or to an insufficiency of governmental action short of international standards.

Enforcement Regimes: ICJ may resolve issues of violations of the rights of aliens, but claims may also be settled by ad hoc tribunals established for the purpose, like the US-Iran Claims Tribunal and the UN

Compensation Commission. States may also enter into lump sum settlements.

III. Doctrine of State Responsibility

In General: When an injury has been inflicted, there is need to determine whether the state can be held responsible for it.

Internationally Wrongful Act: If a state violated a customary rule of

international law or a treaty obligation, and the act is attributable to the State under international law, it has committed an “internationally wrongful act.” Every internationally wrongful act of a State entails the

international responsibility of that State • Requisites: The elements of an internationally wrongful act, the

attributability of the wrongful act to the state, and the

enforcement of the obligation that arises from the wrongful act. The characterization of an act of a State as internationally wrongful is governed by international law.

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• Legal obligations: When a state consents to be part of an international legal system, it also accepts corresponding legal

obligations. It must accept responsibility for actions which have effect on other international legal persons. No state can avoid responsibility when once it has committed an act which

satisfies the requirements of an “internationally wrongful act.” • An internationally wrongful act consists of a subjective and an

objective element.

Subjective: The act must be attributable not to persons or agencies who performed it but to the state itself.

Objective: A violation of an international obligation. It may be either an act or an omission.

State attribution: Acts of state organs, acts of other persons, or the acts

of revolutionaries.

Acts of State Organs: Any State organ (who is accorded that status according to internal law) which conducts itself in that capacity, entities

empowered by law to exercise elements of governmental authority even if not considered an organ of the state, persons or a group of persons acting under the instructions of the State or carrying out acts of a State in

the absence of official authorities, and attribution to the state of the conduct of organs placed at its disposal by another state, even if they exceeded authority.

Cases • Caire Claim (France v. Mexico, French-Mexican Claims

Commission): WON Mexico was responsible for the death of a

French national at the hands of Mexican soldiers. The Commission (ruling on the objective responsibility) ruled that Mexico had the responsibility to make reparations because the

soldiers acted to all appearances as competent officials or organs and used powers or methods appropriate to their official capacity, even if done without specific authorization.

• Corfu Channel Case (UK v. Albania, ICJ): WON Albania is responsible for the loss of life suffered by the British when two of its destroyers struck mines in Albanian waters. The Court

ruled that Albania is responsible, even though it was two Yugoslav ships who had undertaken to lay the mines, because, firstly, of the attitude displayed by Albania before and after the

incident, and secondly, the possibility of observing the mine laying from the Albanian coast. The aforementioned factual circumstances draw the conclusion that the mines could not

have been laid without Albania’s knowledge and her lack of notifying the UK ships led to her international responsibility.

• Nicaragua v. US (ICJ): WON the US was involved in the

revolution in Nicaragua to the extent of providing direct support for the contra forces as well as laying mines in Nicaraguan ports, among other allegations. The Court, in determining the

closeness of the relationship between the US government to

the contras would be enough to equate their actions with one another, ruled that there was a partial dependency may be

inferred but not enough that the US actually exercised a degree of control to justify the contras as acting on its behalf. For the US to be responsible, it would have to be proved that the State

had effective control of the operations during the course of the alleged acts.

Acts of Other Persons: Conduct of a person/group are acts of the State

under international law if the person/group exercised elements of governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of

authority. Conduct of an organ placed at the disposal of a State by another State is considered an act of the former State under international law if the organ was acting in the exercise of elements of the

governmental authority of the State at whose disposal it had been placed. • US v. Iran (ICJ): WON Iran could be made responsible of the

acts of the Muslim Student Followers of the Imam’s Policy

against the United States Embassy. The Court ruled that Iran was responsible because, being aware of their obligations to the US protect the embassy and having the means at their

disposal to do so, they failed to protect it.

Acts of Revolutionaries: Conduct of an insurrectional movement shall be considered an act of that State under international law if it becomes the

new State government. If it succeeds in establishing a new State in part of the territory of a pre-existing state or in a territory under its administration, it shall be considered an act of the new State under

international law, without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned.

• Home Missionary Society Claim (US v. Great Britain, American

and British Claims Arbitration Tribunal): WON Great Britain is responsible for the loss of life suffered by the US, because their act of imposing a hut tax on the natives of Sierra Leone caused

a serious and widespread revolt. The Court ruled that Britain was entitled to impose the tax as an exercise of its sovereignty, and stated that no government can be held responsible for the

act of rebellious bodies of men committed in violation of its authority where it is itself guilty of no breach of good faith, or of no negligence in suppressing insurrection.

• Short v. Iran (US. v. Iran, Iran-US Claims Tribunal): WON Short, an American national, could claim compensation for salary and other losses sustained from his expulsion from his

office due to the rise of the Islamic Revolutionary Government. The Tribunal ruled that Short could not because he failed to prove that his departure from Iran was due to the wrongful

conduct of the latter, because a successor government is responsible only for acts imputable to it, and the company orders expelling Short were done by the supporters of the

revolutionaries.

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Preliminary Objections: These are things which need to be satisfied before a state can validly claim standing. Examples are lack of nationality

link and failure to exhaust national remedies.

Reparation: A responsible state is obliged to make full reparation for injury caused by its internationally wrongful act. This injury shall consist of

any damage, material or moral, arising in consequence of the internationally wrongful act of a State. The responsible State cannot rely on municipal law to justify its failure to comply.

• Chorzow Factory Case (Germany v. Poland, PCIJ): WON the expropriation by Poland of a factory in Chorzow was contrary to the 1922 Geneva Convention between Germany and Poland,

and if so, if Germany is entitled to reparation for the damage caused. The Court ruled that the damages to be awarded are not limited to actual damages sustained by Germany but that

the restitution must wipe out all the consequences of the illegal act and re-establish the situation which would have existed had the act not been committed.

Calvo Clause: A provision in a contract to the effect that “under no condition shall the intervention of foreign diplomatic agents in any matter

related to the contract be resorted to.” This was already rejected in a case because the right to seek redress is a sovereign prerogative.

Expropriation: Expropriation (the taking of property by the state) can be

an international wrong if done contrary to the principles of international law. Expropriation must be based on grounds or reasons of public utility, security, or the national interest recognized as overriding purely individual or private interests, both foreign and domestic. Just compensation must

be accorded the owner.

CHAPTER TWELVE: INTERNATIONAL HUMAN RIGHTS LAW

I. In General—From Alien Rights to Human Rights

Definition of human rights: Rights which are inalienable and fundamental and essential for life as human beings.

East v. West: Asian culture believes that human rights is a mostly

Western concept, but the common denominator is the belief that the individual must be protected and the international community must contribute to that protection, even if between the two views there is

differing emphases. • Western/American: emphasis on the individual • Eastern/Confucian: emphasis on the community

Western tradition developed from the Natural Law view that some rights are higher than positive/man-made law and flows from the nature of man himself, which demands immunities or liberties.

Three generations of human rights: • First generation: traditional civil and fundamental rights • Second generation: social and economic rights

• Third generation: right to peace, clean environment, self-determination, common heritage of mankind, development,

minority rights.

II. International Bill of Human Rights Emergence of an International Bill of Human Rights: Started to rise after

World War II, because of the recognition that the way nations treat persons under their jurisdiction has become an international concern, not just domestic. It is said to chip away at the old concept of sovereignty and

recognizes that individuals can be made the subject of international law, and that they can find protection and remedies within the international community against their own state.

UN Charter: Breaking ground for the development of the new international human rights law. The Charter set down a fundamental premise of “faith in fundamental human rights in the dignity and worth of

the human person in the equal rights of men and women.” • Article 1(3): “To achieve international cooperation in solving

international problems of an economic, social, cultural or

humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.

Obligations assumed by UN Members: • Creation of stability and well being necessary for peaceful and

friendly relations among nations based on respect for the

principles of equal rights and self-determination. • Promotion of higher standards of living, full employment and

conditions of economic and social progress and development

• Advance solutions of international economic, social, health and related problems and international cultural and educational cooperation

• Universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

• All Members pledge to take joint and separate action in cooperation with the Organization for the achievement of the purposes aforementioned.

Universal Declaration of Human Rights: First significant milestone in the internationalization of human rights. It was adopted by the UN General Assembly on December 10, 1948, not as law but as a “common

standard” for nations to attempt to reach. Its authority is mostly political and moral.

Declaration as distinct from Covenant

• International covenant: Meeting of the minds of the contracting parties on specific duties and obligations they intend to assume, and the agreement that the undertakings must be

effectively performed. Leaves no doubt about the legal nature of the provisions it contains.

• Declaration: Admits the presumption that something less than

full effectiveness in terms of law is intended. Dictates moral rules only. There is no vinculum juris in the agreement.

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III. Covenant on Civil and Political Rights Life, Liberty and Property:

• The Covenant’s provisions on the right to life do not go beyond what the Philippine Bill of Rights guarantees. However, it does not say when protected life begins while the Philippines

protects the life of the unborn child from conception. • There is no right to property in the Covenant, even if there is

one in the Universal Declaration. A respected author states that

it would be difficult to draft a right to property which could gain universal and general acceptance.

• The Covenant expresses an inclination towards the abolition of

the death penalty but allows its imposition only after conviction of the most serious crimes. A Second Optional Protocol (which has not come into force yet) expressly forbids the execution of

any person within a State party’s jurisdiction. The Philippines is not a party to the Second Optional Protocol, but it has since disallowed its imposition in RA 9346 (after it initially allowed it

again for the most heinous crimes). • The Bill of Rights adequately covers what is mentioned in the

Covenant regarding physical liberty and arrests and

detention, such as the rights of the accused. However, the Covenant is more restrictive as to the publicity of criminal proceedings where the interests of juvenile persons,

matrimonial disputes or guardianship are at issue, which would not pass Philippine tests.

• As to compensation in the Covenant, it guarantees that

anyone who are victims of unlawful arrest and miscarriage of justice shall be compensated according to the law. In the Philippine Constitution, one is only accorded the right to

compensation pursuant to violations of one’s rights under investigation.

Torture, Ill-treatment and Prison Conditions: The Covenant prohibits

torture and other forms of ill-treatment that offend bodily integrity and personal dignity. Humane prison conditions must also be implemented (the Philippines requires adequate prison conditions.) The UN Human

Rights Commission says that imprisonment in conditions detrimental to a prisoner’s health constitutes violation of the Covenant.

Freedom of Movement: The Covenant guarantees the rights to travel

within the country, to leave the country, and to change one’s residence. These are limited by law, public health, national security or the rights and freedoms of others, and those inconsistent with the other rights in the

present Covenant. Unlike in the Philippine Bill of Rights, the Covenant does not require a court order for the impairment of liberty of abode. There is a difference between the right to return to one’s country from the

right to leave one’s country. Exile is now prohibited by customary law and the prohibition of exile may even be jus cogens.

Legal Personality, Privacy and Right to Family: Difference between “legal

personality” and “capacity to act.” Legal personality belongs to all, whether citizens or aliens. Capacity to act may not be available to some

by reason of infancy, minority, or insanity. State parties must treat every human being everywhere as a person before the law, enjoying the

protection of the law and of the forces of the law, with power to have rights and assume obligations. The Covenant does not say when one becomes a person but the Philippine Constitution protects the life of the

unborn. However, it does not say if the unborn is a person. The Civil Code says that the unborn is a person for purposes favorable to him.

Thought, Conscience, Religion, Expression, Political Freedom: The limits

on exercise of the aforementioned rights found in the Covenant are “to protect public safety, order, health, or morals or the fundamental rights of others.” The Covenant has express protection of the right of parents in

the matter of religion for their children. An established religion is not incompatible with the covenant. The Covenant also guarantees freedom of expression, the right of assembly and petition, and political freedom.

Associations and Unions: The Covenant has a detailed set of provisions protecting the right to form associations and unions. It is silent about the right of government employees to form unions.

Minorities: Minorities are accorded the right to enjoy their own culture, to profess and practice their own religion or to use their own language. There is no right to secede. The concern for minorities has a two-fold

aspect: 1. The fear of a secessionist movement by minorities, threatening territorial integrity of the state, or about the danger of interference by other states with which the minorities are connected by ties of race,

national origin, language, or religion; and 2. A genuine concern for the human rights of minorities and the desire that minorities will flourish so as to preserve that diversity of the human race.

Self-determination of peoples: Self-determination covers two important rights: 1. The right freely to determine their political status and freely pursue their economic, social, and cultural development; and 2. The right

for their own ends, to freely dispose of the natural wealth and resources without prejudice to any obligations arising out of international cooperation based upon the principle of mutual benefit and international

law. They also have an internal aspect (as to the two rights aforementioned) and an external aspect (belong to non-self-governing and Trust Territories).

Optional Protocol on the Covenant on Civil and Political Rights: Supplement to the Covenant on Civil and Political Rights. The Philippines has ratified the Protocol and it entered into force in March 1976.

IV. Covenant on Economic, Social and Cultural Rights Reasons for division: Ideological and practical reasons.

• Ideological: The contest between Western on the one hand and

socialist and Third World countries on the other. Western countries found it difficult to apply a treaty containing economic and cultural rights beyond those guaranteed in the Constitution,

while socialist and developing countries felt that the lack of economic, social and cultural rights would render civil and political guarantees meaningless.

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• Practical: It is difficult to implement civil and political guarantees without the corresponding economic social and cultural rights

and could only be done considering developmental conditions. Rights guaranteed:

• 1. To work

• 2. To favorable conditions of work • 3. To form free trade unions • 4. To social security and insurance

• 5. To special assistance for families • 6. To adequate standard of living • 7. To the highest standard of physical and mental health

• 8. To education including compulsory primary education; and • 9. To the enjoyment of cultural and scientific benefits and

international contacts.

V. Duty to Implement Philippines’ international obligations: The nation is bound, both internally

and to its foreign relations, to bring its laws and practices into accord with

accepted international obligations and not to introduce new laws or practices which would be at variance with such obligations. Treaty commitments become part of domestic law. Self-executing provisions of

the Covenants must be implemented in domestic law. Those not self-executing must be attended to by necessary steps, in accordance with its constitutional processes and with the provisions of the Covenant.

Principle of progressive realization: A state is obligated to undertake a program of activities and to realize those rights which are recognized by the Economic Covenant. While the obligation of progressive realization is

limited by resource constraints, the Economic Covenant indicates that priority should be given to social welfare and that the level of effort should increase over time. These obligations apply to any state that has ratified

the Economic Covenant, regardless of that state’s economic resources. Beyond domestic obligations are international obligations. In the

economic and social fields, the keywords are “cooperation” and

“assistance.” In the civil and political field, this involves participation in the implementation measures of the UN system.

VI. International Implementation of Human Rights Law

Other conventions on human rights: 1948 Genocide Convention, 1966 Convention on the Elimination of all forms of Racial Discrimination, 1979 Convention on the Elimination of all forms of Discrimination against

Women, 1984 Convention against torture and other Cruel, Inhuman, Degrading Treatment or Punishment, 1989 Rights of the Child Convention and 1990 Convention on Migrant Workers.

Customary international human rights law: Some human rights principles have become customary law, like prohibition against torture, genocide, slavery and the prohibition of discrimination.

International implementation: • Human Rights Commission: Subsidiary organ of ECOSOC • Confidential Consideration Procedure (1503 Procedure):

Resolution 1503 of the ECOSOC authorizes the Sub-

Commission on Prevention of Discrimination and Protection of Minorities to appoint a working group of not more than 5

members to meet once a year in private meetings to consider all communications with a view to bringing to the attention of the Sub-Commission those communications which appear to

reveal a pattern of gross and reliably attested violations of human rights. The confidential findings of the Sub-Commission are brought to the attention of the Commission on Human

Rights, which submits its report and recommendation to the ECOSOC. The procedure is kept confidential until the CHR decides to make recommendations to the ECOSOC.

• Public Debate Procedure (1235 Procedure): Resolution 1235 of the ECOSOC authorizes the CHR and its subsidiary Commission on Prevention of Discrimination and Protection of

Minorities to examine reports relevant to gross violations of human right and to examine whether the violations reveal a consistent pattern and thereafter make recommendations to

the ECOSOC. • The procedure carries out two types of activities:

1. It holds annual public debates in which NGOs are

given the opportunity to identify publicly country-specific situations which deserve attention.

2. It engages in studies and investigations of particular

situations through the use of various techniques the Commission might deem appropriate.

• Possible results of these procedures:

1. Embarrassment of countries referred to, that might generate change in policy;

2. Pressure on governments to take the issue on a

bilateral or multilateral level; 3. Statements of exhortation from the Commission or

call from the Commission for all available

information; 4. The Commission might appoint a special rapporteur

to examine and submit a report on the issue;

5. The Commission might ask the Security Council to take up the issue with a view to promulgating sanctions.

VII. International Criminal Court Significance and Goal: The International Criminal Court was created in

1998 by the Rome Statute. The treaty came into force in April 2002 when

the 60th country needed to establish the ICC submitted its ratification. The US and the Philippines have not ratified it.

• Prior to the establishment of the ICC, international crimes were

prosecuted in ad hoc criminal courts. These tribunals were undermined and weakened by the charges of politically motivated investigations and selective justice. Unlike temporary

tribunals, the ICC will be established without any specific country in mind. Besides being permanent, it will be neutral.

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Gradually too, it will be able to establish precedents. Its goal is individual and not collective accountability.

Jurisdiction: The jurisdiction of the ICC will be limited to the most serious international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

Principle of Complementarity: The court is a court of last resort. It must await referral of a crime by a state party or by the Security Council. The court cannot act when the local judicial system is able to prosecute. Once

a state has taken the initiative to investigate a crime, the ICC cannot intervene. Because of the principle of complementarity, the effective functioning of the court will depend very much on the cooperation of state

parties. The crimes over which the ICC has jurisdiction must first be punishable in domestic law.

CHAPTER THIRTEEN: PEACEFUL SETTLEMENT OF DISPUTES

I. International Dispute

Definition: Not every disagreement is a dispute. A dispute is an “international dispute” if there is “a disagreement on a point of law or fact,

a conflict of legal views or interests between two persons.” • Examples: Disagreements over the interpretation of a treaty,

state boundaries or about state responsibility.

• Article 2(3): All members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.

• There is no obligation to settle disputes unless they fall under the categorization of Article 33 (those which might endanger peace and security. However, if there is a decision regarding

settling disputes, the obligation to settle them is by peaceful means.

Peaceful Methods of Settling Disputes (Article 33): The parties to any

dispute, continuance of which is likely to endanger the maintenance of international peace and security, shall try to seek a solution by the following methods:

• Judicial: Recourse to the International Court of Justice (ICJ) or other international tribunals

• Quasi-iudicial: Arbitration

• Non-judicial: Negotiation, Mediation, Inquiry and Conciliation Article 36: The Security Council may recommend appropriate procedures

or methods of adjustment in a situation referred to in Article 33, or any

similar circumstances. Article 37: If the parties failed to resolve their dispute in the methods

aforementioned, they shall refer it to the Security Council. The Security

Council will then decide whether they will enforce the procedure of Article 36 or to recommend terms of settlement if it deems necessary.

Article 38: If the parties to the dispute so request, the Security Council

can make recommendations to the parties with a view to a peaceful and pacific settlement.

II. Non-Judicial/Diplomatic Settlement Negotiation: Preferred vehicle because states are generally reluctant to

submit their disputes to an adjudicatory body. It is a very flexible method because there are no set rules. It may be at arm’s length or face-to-face, or it may be formalized in a treaty or a mere exchange of notes. May be

carried out by diplomatic correspondence, face-to-face dialogue between permanent envoys or designated negotiators. It is essentially a give and take process looking for a win-win situation.

• Good offices: Preliminary step in negotiation. A neutral third party brings the two parties together as an initial step before judicial settlement is referred to.

Mediation: Involves assistance by third parties acting as a bridge between the disputants, who do not meet or who may sit with the two parties at chair meetings, suggest solutions and cajole them to a

resolution. The mediator is approved of by both parties. Inquiry: A fact-finding conducted by a group or by an institution.

Frequently resolves disputes on questions of fact when applied for with

the consent of the parties. Conciliation: A more formal technique where disputants agree to refer the

controversy to an individual, a group of individuals or an institution to

make findings of fact and recommendations. Parties generally do not agree to be bound by the findings made but this “clears the air.”

III. Quasi-Judicial: Arbitration

Arbitration: The binding settlement of a dispute on the basis of law by a non-permanent body designated by the parties. The composition, jurisdiction and procedure employed are agreed upon by the parties in a

compromis d’arbitrage. States are not required to submit to arbitration unless there is an agreement making it compulsory.

• Distinguished from judicial settlement: Arbitration is more

flexible and parties have a greater say in deciding the law to be applied.

• Three types of arbitral agreements:

Arbitration clause that is incorporated as part of a treaty.

Arbitration treaties where the sole function of the

treaty is to establish methods for the arbitration of disputes.

Ad-hoc arbitral agreements

Arbitral decisions apply international law unless the parties specify otherwise.

Arbitral decisions are often challenged pursuant to the following grounds:

• Arbitral body exceeded its powers • There was corruption on the part of a member of the body • There was failure to state the reasons for the awards or a

serious departure from a rule of procedure • The undertaking to arbitrate/compromis is a nullity

Grounds of domestic courts to refuse to recognize arbitral awards:

• The agreement to arbitrate was not valid under applicable law • No due process

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• Award deals with matters outside the arbitration agreement • Arbitral tribunal is contrary to the agreement of the parties

• Reward is not yet binding, has been suspended or set aside by a competent court

IV. Judicial: The International Court of Justice, et al

The International Court of Justice: The UN’s principal judicial organ. It is the successor of the Permanent Court of Justice which was established by the League of Nations, and it came into being through the Statute of

the Court. All members of the UN are ipso facto parties to the Statute of the International Court of Justice. However, being parties to the Statute does not mean acceptance of its jurisdiction; it just allows the possibility

because only State parties may be parties in the court. • Cardinal rule: States cannot be compelled to submit disputes to

international adjudication unless they have consented to it

either before a dispute has arisen or thereafter. They may also limit their acceptance to certain types of disputes and to attach various conditions or reservations to their acceptance.

Composition of the Court: A body of independent judges (elected regardless of nationality) of high moral character possessing the qualifications required in their respective countries for appointment to the

highest judicial offices, or are jurisconsults of recognized competence in international law.

• Consists of 15 members, no two of whom may be nationals of

the same state. A member is a national of a state where he/she ordinarily exercises civil and political rights.

• Chambers: The Court may form one or more chambers

composed of three or more judges to deal with particular categories of cases like labor, transit and communications, etc. In dealing with a particular case, the court may form a chamber

for that purpose. If parties request it, the case may be heard in the chamber. Judgment rendered by a chamber is considered as rendered by the whole Court.

• Possible partiality: Judges of the same nationality as one of the parties shall retain their right to sit in a case before the court. Is the Court includes upon the bench a judge of the nationality of

one of the parties, any other party may choose a person to sit as judge (preferably from the list of persons nominated as candidates.)

Jurisdiction of the Court: • Contentious: Such jurisdiction of the Court over all cases which

the parties refer to it and all matters specially provided for in

the Charter of the UN or in treaties or conventions. • Advisory: The Court may give an advisory opinion on any legal

question. UN Charter empowers the General Assembly and the

Security Council to make requests for advisory opinions, while the General Assembly may authorize other UN agencies to seek advisory opinions. Requests must be made in writing

containing an exact statement of the question upon which an opinion is required, and accompanied by all necessary

documents. By definition, advisory opinions are non-binding. Acceptance or non-acceptance of the advisory opinion is

determined by the internal law of the institution.

Contentious Jurisdiction • Subject matters: (a) Interpretation of treaties; (b) question of

international law; (c) existence of any fact which, if established, would constitute breach of an international obligation; and (d) nature or extent of the reparation to be made for the breach of

an international obligation • Ways a State recognizes jurisdiction:

First: Ad Hoc Basis – When a party unilaterally

applies to the Court and the other party expresses his consent thereafter

Second: Via Treaty – When parties adhere to a

treaty which accepts the jurisdiction of the court on matters of interpretation or application of the treaty.

Third: Optional System – By unilateral declaration

that recognition of jurisdiction in relation to any other state accepting the same jurisdiction in all legal disputes.

Declaration is the form by which state parties recognize as compulsory ipso facto and without special agreement, in relation

to any other state party accepting the same obligation, the jurisdiction of the court. These may be made unconditionally

or on condition of reciprocity on the part of several or certain states or for a certain period of time. This way, states can limit

the extent to which they subject themselves to the jurisdiction of the court. The declarations shall be deposited with

the Secretary General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the

Court’s Registrar. Interhandel case: If two parties to a case

are called to the Court, A via a Declaration

without conditions and B with conditions, A can invoke the conditions in B’s declaration for himself.

Optional system: • Aerial Incidence Case (US v. Bulgaria, ICJ): WON Bulgaria has

submitted itself to the Court’s jurisdiction when it is alleged that

Bulgarian military failed to take actions necessitated by international civil aviation agreements when an El Al Israel airliner entered into Bulgarian airspace and was shot down by

them. The case was dropped by the US. The objections of Bulgaria must be noted, particularly its objection which called

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upon the grounds of reciprocity and consensual basis of ICJ jurisdiction by invoking the Connally amendment reservation,

exempting from ICJ Jurisdiction matters cognizable within its internal competence.

• Nicaragua v. US (ICJ): WON the US accepted the jurisdiction

of the ICJ. In 1946, US declared its adherence to ICJ jurisdiction, noting that it would be terminated after six months notice given to the UN regarding its expiration. After figuring

out that Nicaragua would bring the situation to court, they deposited the 1984 notification with the UN. The Court ruled that Nicaragua was a “state accepting the same obligation” as

the US as in its acceptance of the Court’s jurisdiction under the Statute of the Permanent Court of International Justice, and that the US could not defy its own Declaration by not complying

with its “6-months notice” provision. • Case of East Timor (Portugal v. Australia, ICJ): WON Portugal

can bring an action against Australia regarding the “Zone of

Cooperation” which is the subject of the treaty between Australia and Indonesia. The Court ruled that the actual dispute was between Portugal and Indonesia, and could not continue

because Indonesia had not accepted the jurisdiction of the ICJ.

Provisional measures: The Court can indicate and impose any provisional remedies to preserve the rights of either party, pending final decision of

the courts. • Nicaragua v. US (Summary, ICJ): Same fact set as above

Nicaragua cases. Given the circumstances, the Court deems it

appropriate to grant provisional measures, and emphasizes that the grant does not prejudice the eventual decision of the main case.

• Case concerning the legality of use of force (Yugoslavia v. US, ICJ): WON the Court can grant the provisional measures requested by Yugoslavia against the NATO states regarding

bombings on the basis of the Genocide Convention. The Court denied the application because the US did not give its consent to be bound by the Court’s jurisdiction and, not consenting, the

provisional measure cannot be imposed.

Intervention: The intervention of a third party state in the dispute between other states on the basis of its interest in the outcome of the case. Its

interest must be of a legal nature. Request for intervention is submitted to ICJ.

• El Salvador v. Honduras (Nicaragua intervention, ICJ): WON

Nicaragua can intervene in the dispute between El Salvador and Honduras regarding the protection of its legal rights in the Gulf of Fonseca. The Court ruled that Nicaragua was able to

show proof that they had interest of a legal nature which may be affected by the Court’s decision and granted the request to intervene.

Obligation to comply with obligations: The ICJ’s decision has no binding force except as between the parties and only in respect of that particular

case. The judgment is final and without appeal. Revision of judgment can only be made upon discovery of a new fact of such a nature as to be a decisive factor which was unknown to the Court and also to the party

claiming revision, provided that the ignorance was not due to negligence. Proceedings will be opened by a new judgment by the ICJ recording the existence of the new fact and recognizing that it is of such a character to

lay the case open to revision. • No application shall be made after the lapse of 10 years after

the judgment.

Enforcement: Member states must comply with the judgment. If not, the aggrieved party can appeal to the UN Security Council which can make recommendations or decide upon measures to be taken to give effect to

the judgment.

Other active international courts: Court of Justice of the European Communities, the European Court of Human Rights, the Benelux Court of

Justice and the Inter-American Court of Human Rights. The International Criminal Court entered into force only in 2002.

CHAPTER FOURTEEN: USE OF FORCE SHORT OF WAR

I. The Use of Force

General principle: International law recognizes the autonomy of individual states and their right to freedom from coercion and to the integrity of their

territory. From the UN Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner

inconsistent with the Purposes of the United Nations.” • The text does not use the word ‘war’ because it is a technical

term that does not include all uses of force.. The prohibition in

the UN Charter applies more broadly. Doctrine of self-help and ICJ’s interpretation: In the Corfu Channel case,

the UK wanted to secure the mines to prevent further danger. This was

presented as a new and special application of the theory of intervention, where the intervening state was acting as a method of self protection or self-help. The Court cannot accept this line of defense because

espousing it would be allowing a policy of force which cannot find a place in international law.

• The prohibition of the use of force is also customary

international law, not just conventional. There exists in customary law an opinio juris as to the binding character of abstention from the use of force. Consent to resolutions

expressing such abstention from use of force is consent to such customary law.

• Judge Sette-Camara: The non-use of force and non-

intervention are not only cardinal principles of customary international law but could be recognized as peremptory rules

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of customary international law which impose obligations on all States.

II. The Threat of Force Examples of threat of force: The threat to use force may come in various

forms, the most typical of which is the ultimatum in which the State to

which it is addressed is given a time limit to accept demands upon it and, if rejected or upon failure to comply, war will be declared on it or certain coercive measures will be employed.

• Legality of the Threat or Use of Nuclear Weapons (ICJ Advisory Opinion): The Charter prohibits the use of force against the territorial integrity or political independence of

another State in any other manner inconsistent with the purposes of the UN, and the prohibition extends not just to specific weapons but to any use of force regardless of

weapons employed, because there is not express permission nor prohibition against nuclear weapons in the Charter.

• Article 51: Entitlement to self-defense is subject to the

conditions of necessity and proportionality. “Self-defense only warrants measures which are proportional to the armed attack and necessary to respond to it.”

• Proportionality principle: A use of force that is proportionate under the law of self-defense must, to be lawful, meet the requirements of the law applicable in armed conflict which

comprise the principles and rules of humanitarian law. • Threats to use force: Whether or not there is a signalled

intention (threat) to use force if upon the occurrence of certain

events depends on several factors—if the use of said force is illegal, then the threat to use such a force is also deemed illegal.

III. Individual and Collective Self-Defense Individual and collective self-defense (inherent rights) are not completely

prohibited. Individual and collective self-defense is allowed subject to the

principles of necessity and proportionality, without prejudice to the right of the Security Council to take actions it deems needed to restore international peace and security.

Self-defense can only be exercised in response to an “armed attack.” In the view of the Court, this is understood to be not merely action by regular armed forces across an international border but also the sending

by a State of armed bands to the territory of another State. • Does not include “assistance to rebels” in the form of weapons

or logistical support within its purview.

• There is no rule permitting collective self-defense without a State requesting for its assistance and a State declaring itself to have been attacked.

Anticipatory self-defense: Opinion on its legality is divided. Some say that “protection of vital interests” justifies the use of force while others refrain from using it in the fear that it may be used against them as well.

9/11: Article 51 on self-defense was used to justify a response to a non-state aggressor.

IV. Traditionally Allowable Coercive Measures Severance of diplomatic relations: Resorted to only when absolutely

necessary because severance might endanger peace. This is

distinguished from suspension which only involves withdrawal of diplomatic representation, but not consular.

Retorsion: Any of the forms of counter-measure in response to an

unfriendly act like shutting of ports to vessels, recovation of tariff concessions or the display of naval forces near the waters of an unfriendly state.

Reprisal: Forcible coercive measure which seeks to deter/obtain redress from another because of the other’s illegal act, and because of the other’s refusal to make amends. By itself, the act of reprise is illegal. It must be

preceded by an unsatisfied demand. Embargo: May consist of seizure of vessels even in the high seas. It may

be pacific, as when a state keeps its own vessels for fear that it might find

their way into foreign territory. There is also collective embargo on import. Boycott: Form of reprisal which consists of suspension of trade or

business relations with the nationals of an offending state. A form of

economic aggression which ought to be prohibited by law. Non-intercourse: Suspension of all commercial intercourse with a state. Pacific Blockade: Naval operation carried out in peacetime where a state

prevents access to or exit from particular ports or portions of the coast of another state for the purpose of compelling the latter to yield to demands made by the blockading state. It is essentially a warlike act.

V. Protection of Nationals Abroad The right to protect nationals stems from the right to self-defense in

Article 51 coupled with the notion of population as an element of

statehood, where nationals abroad are considered members of the populace in another state. The legitimacy of such intervention is not firmly established in international law

VI. Humanitarian Intervention Armed humanitarian intervention by states: Intervention without the

authorization of the Security Council violates international law, because

armed humanitarian intervention as a response to massive violation of human rights in another state begins with a general prohibition against the use of force.

Legality v. Illegality: Only permissible is sanctioned by the Security Council. They must consider the massive violation of human rights as a threat to peace and calls for an enforcement action such as humanitarian

intervention to put an end to violations. Absent such a declaration, military coercion employed constitutes a breach of the Charter. Additionally, the human rights violations must transcend borders and lead

to armed attack against other states to be able to qualify as an “armed attack.”

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Three reasons against the existence of a right of humanitarian intervention:

• UN Charter and PIL do not incorporate such a right • No real need because there are only a handful of genuine

cases of intervention

• Prudential grounds; because the scope of abuse argues strongly against its creation. Benefits outweigh the costs in terms of respect for PIL.

Laws should not be changed to follow humanitarian impulses because of the potential for abuse and because it might just be an isolated incident only.

Another author asks, as regards the NATO armed intervention: Should the respect for the Rule of Law be sacrificed on the altar of compassion? Because ethically, acts of humanitarian intervention are justified but

legally, are contrary to law. The same author submits that under certain strict conditions, resort to

armed force may gradually become justified, even absent any

authorization by the Security Council: • Crimes against humanity are carried out on the territory of a

sovereign state and central authorities are unable to do

anything • There is proof of anarchy • Security Council cannot take any coercive action to stop the

acts • Exhaustion of all peaceful avenues • There must be both a group of states willing to stop the

conflicts and support/non-opposition of the other Member-States of the UN

• Armed force is only limited to the stopping of the atrocities.

The more urgent the situation, the more intensive and immediate may be the military response thereto.

CHAPTER FIFTEEN: THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW)

I. International Humanitarian Law in general

Proliferation of laws on war: Side by side with the prohibition against the

use of force is the proliferation of laws of war, because: • Those who resort to the use of arms do not give up until they

have achieved victory;

• Given the first fact, humanitarian considerations dictate the need for rules which curtail violence beyond what is necessary to achieve a state’s goal;

• There still remains in the hearts of the soldiery an acceptance of chivalry as a value.

Humanizing the conduct of war was the driving need to formulate laws,

assuming that wars can always happen. This was pioneered by Henry Dunant who was appalled by the brutality of war.

The Hague Law: Early customary law. At present the laws of war are mostly conventional. Principles adopted in the Law of the Hague refer to

land and naval warfare. The Geneva Conventions of 1949: Persons not engaged in warfare

should be treated humanely. The Geneva Conventions are referred to as

the “Red Cross” Conventions governing—I: Wounded and Sick in the Field; II: Wounded, Sick and Shipwrecked at Sea; III: Prisoners of War; and IV: Civilians.

Customary and Conventional Law: Much of what is embodied in the aforementioned conventions are customary law. Non-parties to the Convention are still covered by the customary law on armed conflict.

• Commencement of Hostilities: For an armed conflict to be considered a war, hostilities must be preceded by a declaration of war or an ultimatum with a fixed limit. This is rarely followed.

Usually, it is the victim of the first attack which will be the ones declaring war. In the Philippines, the power to declare war is in the legislature while the power to make war is in the executive.

• Effects of Commencement: Commencement of hostilities result in the severance of all normal relations. Political and economic treaties are terminated. However, treaties of a humanitarian

character should remain in force. Nationals of combatant states residing in enemy territories may be subjected to restrictions imposed by the enemy. Merchant vessels are given a grace

period to depart. • Termination of Hostilities: Laws of armed conflict remain in

effect until the conflict is terminated. It terminated usually upon

a peace treaty. However, once combatant states have made a declaration that hostilities have come to an end, armed forces are bound by that declaration even absent a treaty.

• Armistice/Cease fire: An agreement to suspend hostilities. It does not end the conflict.

Protocol I: Created a new category of international armed conflict and

defines it as “armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.” Those engaged in such a

conflict receive combatant status and are entitled to combatant rights and duties.

II. Methods of Warfare: Jus in Bello

The only legitimate object which states should endeavour to accomplish during the war is to weaken enemy forces. For this reason it is sufficient to disable the greatest possible number of men.

Prohibited methods: The Hague Convention prohibits the employment of arms, projectiles or material calculated to cause unnecessary suffering. States can never make civilians the objects of attack and must never use

weapons that are incapable of distinguishing between civilian and military targets. States do not have unlimited freedom of choice of means in the weapon they use.

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International Commission of the Red Cross’ Soldier’s Rules (Summary) • Be a disciplined soldier because disobedience of the laws of

war dishonours your army and yourself. Fight only enemy combatants. Destroy no more than your mission requires. Do not fight enemies who are ‘out of combat’ (hors de combat) or

surrender. Collect and care for the sick and wounded, friend or foe. Treat all civilians and enemies with humanity. Prisoners of war must be treated humanely. Do not take hostages. Abstain

from acts of vengeance. Respect the Red Cross and all those bearing its emblem. Respect other person’s property. Prevent breaches of the above rules.

International Commission of the Red Cross’ Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts (Summary):

• Persons out of combat are entitled to respect for their lives and moral and physical integrity. It is forbidden to kill or injure an enemy out of combat. The wounded and sick shall be collected

and cared for and the Red Cross respected. Captured combatants of another party are entitled to respect for their lives and dignity. Everyone shall be entitled to judicial

guarantees. Parties to a conflict do not have an unlimited choice of methods or means of warfare. Distinguish between civilians and combatants.

Non-international Armed Conflicts (Summary): • There is a prohibition against indiscriminate attacks. There is

an obligation to distinguish between combatants and civilians.

The latter are not to be attacked. Unnecessary suffering is prohibited. The prohibition to kill, injure or capture an adversary by resort to perfidy (def. dishonesty) is prohibited. The

obligation to respect and protect medical and religious personnel is given. There is a prohibition against attacks against property and destruction of objects indispensable to the

survival of civilians • Do not use the following weapons: Chemical weapons,

expanding or flattening bullets, poison, mines and booby traps

which may be easily mistaken by civilians, incendiary weapons (against civilians).

III. Neutrality

In a conflict there are some who wish to stay out of the way and adopt an attitude of impartiality. Such an attitude must be recognized by the opposing party-States and creates both rights and duties in the neutral

states. The decision to employ a neutral stance is dictated by political/internal mechanisms and not PIL.

Neutral states must not engage in activities which interfere with the

activities of the belligerents while the latter respect the former’s rights.

IV. Non-International Conflicts

Civil wars: They do not violate international law. They do not fall under the UN Charter’s purview. Outside help is allowable only if the

government requested for it. Aiding rebels is contrary to international law. Common Article 3: Allows minimum humanitarian protection to cover

internal conflict. Common to all 1949 Geneva Conventions. See

discussion in Chapter Six. Protocol II: The first and only international agreement regulating the

conduct of parties to a non-international armed conflict. Supplements the

Common Article 3. See discussion in Chapter Six.

V. International Terrorism Definitions: There is not crime named terrorism in the Philippine

statutes, although some acts which are considered territoristic are punishable by the Revised Penal Code.

• US: Anti-Terrorism Law; UK: Terrorism Act of 2000.

• British law defines it as: Violent moves against person or property or against public health and safety which have for their purpose to influence the government or to intimidate a section

of the public or to advance a political, religious or ideological purpose.

In international law, it is difficult to criminalize terrorism because of the

difficulty in defining the prohibited act. The draft definition (at the International Convention for the Suppression of the Financing of Terrorism is as follows:

• An act done by any person intended to cause (a) death or serious bodily injury to any person, or (b) serious damage to a State or Government facility with intent to cause extensive

destruction of such a place, facility or system, or where such destruction results or is likely to result in major economic loss, when the purpose of such an act is to intimidate a population or

to compel a Government or an international organization to do or abstain from doing any act.

Universality: Is terrorism a crime against humanity? Many consider it to

be such because of the 9/11 attacks. They were led to this conclusion because of the act’s magnitude, gravity, and the targeting of civilians as part of a well-planned operation. The characterization of the 9/11 attack

as a crime against humanity is important in US justification for its use of international law on self-defense.

There are still many aspects of international terrorism which need to be

clarified for the purpose of effecting legislation, such as magnitude of attack to be considered as an attack by a state, and what specifically is a target of self-defense, its timing, duration and the admissible means,

among many others.

CHAPTER SIXTEEN: INTERNATIONAL ENVIRONMENTAL LAW

I. Environmental concerns Expressions of environmental concern in the Philippine Constitution:

Article II, Section 16, which states that “the State shall protect and

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advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”

• Oposa v. Factoran, Jr: WON the parties had legal standing on the basis of “intergenerational protection.” The Court ruled that they did, recognizing the constitutional right to a balanced and

healthful ecology and the correlative duty to refrain from impairing the environment.

• Laguna Lake Development Authority v. CA: WON the LLDA

had the authority to protect the inhabitants of the Laguna Lake Area from the deleterious effects of pollutants coming from garbage dumping and discharge of wastes in the area. The

Court ruled that it did, basing its decision on Setion 16 and the Universal Declaration of Human Rights, and ruled in favour of LLDA and against the municipalities around the lake, to

address the environmental and ecological stress on Laguna Lake.

• Social Justice Society v. Atienza: WON the Manila ordinance

requiring the oil companies to close and transfer the Pandacan Terminal to another location was valid. The Court ruled that it was valid.

• Metropolitan Manila Development Authority v. Residents of Manila Bay: The Court ruled in favour of the residents and ordered various governmental agencies to clean up Manila

Bay. Environmental concerns: Not just limited to atmosphere, land, sea, flora

and fauna but also includes the preservation of the cultural heritage of

mankind as found in archaeological and artistic remains. The goal of environmental protectionists is the rational use of the elements which make up the environment through control, reduction and elimination of

the causes of environmental degradation. • Human rights is intricately related to environmental concerns

because protection of the environment is a vital part of

contemporary human rights doctrine, even considering it as a sine qua non for many human rights such as the right to health and the right to life.

Difficulty: Due to the various competing interests, it is difficult to espouse environmental concern because of issues of sovereignty and state responsibility, in addition to individual interests and pursuits. This is

compounded by the problem of poverty and exploding population.

II. Environmental rights The real objects of protection are persons capable of having rights, so

trees and other inanimate objects cannot be said to have any rights

except in the metaphorical sense. The approach in Oposa v. Factoran, Jr is then instructive as to the view of the law on the matter, where they used “intergenerational protection and responsibility” as the bases for the

Secretary of Natural Resources to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. The Supreme Court agreed on the justiciability of the

proceedings and remanded the case to the lower courts to receive evidence. .

III. Sustainable Development Sustainable Development: Encourages development in a manner and

according to methods which do not compromise the ability of future generation and other states to meet their needs. According to Justice

Douglas, it is the recognition that the voice of the inanimate object and the existing beneficiaries of tenvironmental wonders not be stilled.

IV. Emerging Principles Stockholm Declaration (Summary): Man has the fundamental right to

freedom, equality, and adequate conditions of life, and has a

responsibility to protect and improve the environment for present and future generations. It is for the benefit of future and present generations. Earth’s capacity to sustain life must be maintained, in addition to the

preservation of wildlife and their habitats, of current environmental resources and the prevention of discharge of toxic substances or fumes and pollution. Man must support the development of sustainable

development, economic and social development, the address of environmental deficiencies, the stability of prices and earnings of basic goods for developing countries, environmental policies, an integrated and

controlled approach to development planning of all States to make compatible with environmental protection, rational planning to reconcile development with environmental protection, demographic policies in

overpopulated areas, science and technology to identify and remedy environmental risks, research and development for environmental problems, and education regarding environmental matters. The

sovereignty of states is recognized, limited by their own responsibility. State cooperation must be employed to aid pollution victims. The standard of applicability must be considered for all states, and

international cooperation through multilateral and bilateral arrangements must be employed. There is a prohibition against man-made destruction.

Rio Declaration (Summary): Human beings are at the center of

concerns for sustainable development. While there is a recognition of their sovereign right to exploit their own resources, they have the responsibility to ensure that activities within their jurisdiction do not cause damage to the environment of other States. The right to development

must be fulfilled to meet developmental and environmental needs. To achieve sustainable development, environmental protection shall be an integral part of the developmental process. There shall be a spirit of

global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. States should reduce and eliminate unsustainable patterns of production and consumption and strengthen

endogenous capacity building for sustainable development by improving scientific and technological knowledge. Environmental issues are best participated in by all concerned citizens. States shall enact effective

environmental legislation and cooperate to promote a supportive and

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open international economic system which would lead to economic growth and sustainable development. States must develop national law

about liability and compensation for victims of environmental damage, and should cooperate to discourage or prevent the relocation and transfer to other States activities causing environmental damage. The

precautionary approach shall be applied by States to protect the environment. Internalization of environmental costs should be endeavoured by national authorities. Environmental impact assessment

shall be undertaken for proposed activities which are perceived to have a large environmental impact. States should immediately notify other states in case of any natural disasters or other emergencies. Indigenous

peoples, women and the youth have vital roles in environmental management and development. Warfare is inherently destructive and should respect international law providing protection for the environment

in times of armed conflict. States and people shall cooperate in good faith to fulfil all the principles embodied herein.

CHAPTER SEVENTEEN: INTERNATIONAL ECONOMIC LAW

I. International Economic Law Definitions: Distinct part of international law which is related to the

regulation of interstate trade, the creation of international economic institutions, the formulation of definite rules covering a wide range of

economic matters and the establishment of methods of dispute resolution.

90% of international law is economic because it includes all the international law and international agreements governing economic

transactions that cross state boundaries that have implications for more than one state, like those governing movement of goods, funds, persons, intangibles, technology, vessels and aircrafts.

Characteristics of International Economic Law: • 1. International economic law is a part of public international

law • 2. International economic law is entwined with municipal law

and is balanced accordingly with it. • 3. International economic law requires multidisciplinary thinking

because it involves many other disciplines such as history, political science, anthropology, geography, et cetera.

• 4. Empirical research is important for understanding its

operation. Important economic institutions:

• Bretton Woods Conference of 1944: Objectives were to

advance the reduction of tariffs and other trade barriers, and to create a global framework designed to minimize economic

conflicts. • International Monetary Fund (IMF): To provide short-term

financing to countries in balance of payments and difficulties

• International Bank for Reconstruction and Development (World

Bank): To provide long-term capital to support growth and development

• International Trade Organization (ITO): Intended to promote a

liberal trading system by proscribing certain protectionist trade rules.

General Agreement on Tariff and Trade (GATT)

World Trade Organization (WTO) – These are the two most important trade-oriented institutions because they shape import and export laws which

impact international trade and services.

Key principles of International Trade Law: • Agreed tariff levels: Each state agrees not to raise tariff levels

above those contained in the schedule. The schedule is open to renegotiation.

• Most favored nation clause/principle: Embodies the principle of

non-discrimination. Any special treatment given to a product from one trading partner must be made available for like products originating from other contracting partners. AKA tariff

concessions. • Principle of national treatment: This prohibits discrimination

between domestic producers and foreign producers. Once

foreign producers have paid border charges, no additional burdens may be imposed.

• Principle of tariffication: Prohibits the use of quotas on imports

or exports and the use of licenses on importation or exportation. Prevents the imposition of non-tariff barriers.

Exceptions to Key Principles:

• General: Public morals, public health, currency protection, products of prison labor, national treasures of value and protection of exhaustible natural resources.

• Specific: Security and regional trade exceptions, such as exception for developing nations.

• Tanada v. Angara: WON the GATT is going to be detrimental

to local industries and constitutes grave abuse of discretion in its implementation. The Court ruled that it was not going to be detrimental because of the exceptions it provides to developing

nations because of its view towards raising standards of living and optimal use of world resources for sustainable development, and lets the developing countries have a share in

economic trade through reciprocal or mutual advantages. For example, the WTO gives developing countries a more lenient treatment by aiding and protecting their domestic industries.

Dispute resolution: A Dispute Settlement Body (DSB) is established by the WTO Agreement. Each state has a right to the establishment of a Panel. The DSU provides for a permanent appellate body, consisting of

persons with recognized expertise in law to handle appeals from a Panel decision.

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Expanded scope: IEL now includes intellectual property, services, sanitary and physiosanitary measures and investment, as well as

strengthening of the rules on subsidies, countervailing duties and anti-dumping. It has become a very specialized field and it is now affecting the sovereignty of states and their capacity to give force to national

objectives.