Vous êtes sur la page 1sur 35

CHAPTER 1

THE NATURE OF INTERNATIONAL LAW

What is International Law?

A body of rules and principles of action which are binding upon civilized states in their
relation to one another

A law which deals with the conduct of the 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


a. Regulation of space expeditions
b. Division of the ocean floor
c. Protection of human rights
d. Management of international financial system
e. Regulation of the environment
f. Preservation of peace

Pragmatic Theory

Public International Law v. Private International Law


Public International Law
Referred to as International Law
Governs the relationship between and
among states and also their relations
with international organizations and
individual persons

Is International Law a Law?

Some Dissenters

Henkin: It is probably the case that almost all nations observe all principles
of international law and almost all of their obligations almost all of the
time

Brierly: The ultimate explanation of the binding force of all law is that
man, whether he is a single individual or whether he is associated with
other men in a state, is constrained, in so far as he is reasonable
being, to believe that order and not chaos is the governing principle of
the world in which he lives

Some Theories about International Law


Command Theory

Consensual Theory

Austin: Law consists of commands originating from a


sovereign and backed up by threats of sanction if
disobeyed
International law is not law because it does not
come from a command of a sovereign
International law derives its binding force from the
consent of states
Treatiesexpression of consent

Natural Law Theory

Customvoluntary adherence to common practices,


is seen as expression of consent
Law is derived by reason from the nature of man
International lawapplication of natural reason to
the nature of the state-person

& DSP

Restatement of Foreign Relations Law of the US


1. Customary Law

Customary lawwhat are regarded as generally


accepted principles of law are in fact an expression
of what traditionally was call natural law
International lawa combination of politics,
morality and self-interest hidden under the
smokescreen of legal language
International law is law because it is seen as such by
states and other subjects of international law

CHAPTER 2

Private International Law


Referred to as Conflict of Laws
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

SOURCES OF INTERNATIONAL LAW

What Sources are


Domestic Lawsfound in statute books and in collections of court decisions
Classifications of Sources
1. Formal sourcesvarious processes by which rules come into existence
a. Legislation
b. Treaty making
c. Judicial decision making
d. Practice of states
2. Material sourcesidentify what the obligations are
a. State practice
d. Judicial decisions
b. UN Resolutions
e. Writings of jurists
c. Treaties
Art. 38(1) of the Statute of the International Court of Justice
1. International conventionsestablishing rules expressly recognized by
contesting states
2. International customevidence of a general practice accepted as law
3. General principles of law recognized by civilized nations
4. Subsidiary means for determination of rules of law
a. Judicial decisions
b. Teachings of the most highly qualified publicists

Public International Law

2.
3.

Page|1

International agreement
General principles common to the major legal system

the law of nations as they result from: usages of civilized people,


laws of humanity & public conscience

Sources of International Law


1. Custom
4. Generally recognized principles of law
2. Treaties
5. Judicial decisions
3. International agreements 6. Teachings of highly qualified publicists

A general and consistent practice of states followed by them from a sense of legal
obligation
Elements:

1.

Material factorhow state behaves


o Elements of Practice of sates or usus
a. Durationmay be either short or long; not the most
important element

Generality of the practice of statesuniformity and


generality of practice need not be complete but it must be
substantial

Determine the rights and duties of states just as individual rights are determined by

Binding force comes from the voluntary decision of sovereign states to obligate
themselves to a mode of behavior

If the treaty is intended to be declaratory of customary law, it may be seen as


evidence of customary law
Adherence to treaties can be indicative also of adherence to practice as opinio juris

Dissenting states: subsequent contrary practice


o Dissenting states are bound by custom unless they had
consistently objected to it while the custom was merely in the
process of formation
o It is also possible that after a practice has been accepted as
law, contrary practice might arise

If treaty comes later than a particular custom, treaty should prevail

If a later treaty is contrary to a customary rile that has the status of jus cogens,
custom will prevail
The later custom, being the expression of a later will, should prevail

A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of
general international law

Preemptory norm of general international law = a norm accepted and


recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character
General Principles of Law Recognized by Civilized Nations

This has reference to principles of municipal law common to the legal systems of the

world

Judicial Decisions

Instant Custom
o A spontaneous activity of a great number of states supporting a
specific line of action
The Martens Clause
Until a complete code of laws of war has been issued, inhabitants &
belligerents are protected under the rule on the principles of

& DSP

contracts

Treaties and Custom

Opinio Jurisbelief that a certain form of behavior is obligatory

Evidence of state practice and opinio juris


a. Treaties
b. Diplomatic correspondence
c. Statements of national leaders and political advisers
d. Conduct of states

Decisions of the court have no binding force except between the parties and in
respect of that particular case
Decisions do not constitute stare decisis

Decisions of the ICJ are not only regarded as highly persuasive in


international circles but they have also contributed to the formulation of principles
that have become international law

Teachings of Highly Qualified Writers and Publicists


Publicists = institutions which write on international law

a.
b.
c.
d.
e.

Public International Law

Equity

b. Consistencycontinuity and repetition


c.

Psychological or subjective factorwhy they behave the way they


do

Treaties

Custom or Customary Law

2.

When accepted, is an instrument whereby conventional or customary law may be


supplemented or modified in order to achieve justice

The International Commission


The Institut de Droit International
International Law Association
Restatement of Foreign Relations Law of the US
Annual publication of the Hague Academy of International Law
Page|2

Where 2 parties have assumed an identical or a reciprocal obligation, one


party which is engaged in a continuing non-performance of that obligation
should not be permitted to take advantage of a similar non-performance
of that obligation by the other party

The Courts recognition of equity as part of international law is in no way


restricted by the special power conferred upon it to decide a case ex aequo
et bono, if the parties agree thereto
Kinds of Equity:

1.

Intra legemwithin the law; the law is adapted to the facts of the case

2.
3.

Praeter legembeyond the law; used to fill the gaps within the law
Contra legemagainst the law; refusal to apply the law which is seen
as unjust

Other Supplementary Evidence


1. UN Resolutionsgenerally considered merely recommendatory but if
they are supported by all the states, they are an expression of opinio
juris communis
2. Soft LawNon-treaty Agreements; international agreements not
concluded as treaties and therefore not covered by the Vienna
Convention on the Law of Treaties
o Administrative Rulesguide the practice of states in relation to
international organizations
CHAPTER 3

e. Protocols
f. Concordat

g. Modus vivendi

1969 Vienna Convention on the Law of Treaties


Governs treaties between states

Entered into force in January 1980

Definition of Treaties

An international agreement concluded between States in written form


and governed by international law, whether embodied in a single
instrument or in 2 or more related instruments and whatever its
particular designation
Even oral agreement can be binding, however, only written agreements that
are new, come under the provisions of the Vienna Convention
Characteristics to make it binding:

1.
2.

& DSP

Different Kinds of Treaties


Multilateral Treaties

Treaties that create


Collaborative
Mechanism
Bilateral Treaties

THE LAW OF TREATIES

Various names of Treaties


a. Conventions
c. Covenants
b. Pacts
d. Charters

Functions of Treaties
a. Sources of international law
b. Charter of international organizations
c. Used to transfer territory, regulate commercial relations, settle disputes,
protect human rights, guarantee investments

Commitment was very specific


There was a clear intent to be bound

Can either be Codification Treaties or Law Making


Treaties, or both
Operate through the organs of the different states
1. Universal scope
2. Regional
In the nature of contractual agreements which create
shared expectations such as trade agreements of
various forms; Contract Treaties

The Making of Treaties


1. Negotiationforeign ministries, diplomatic conferences
2. Power to negotiate
3. Authentication of textsigning of the document; so that states will know
the contents & avoid misunderstanding
4. Consent to be bound:
a. Signature
e. Approval
b. Exchange of Instruments
f. Accession
c. Ratification
g. Other means if so agreed
d. Acceptance
5. Accession to a treatystates which did not participate in the initial
negotiation may express their consent to be bound
6. Reservationsunilateral statement, however phrased or named, made by
a State, when signing, ratifying, accepting, approving or acceding to a
treaty, whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to the State
7. Entry into force of treatiesdate agreed or once consent given (but
provisional application can also apply)
8. Application of treaties
o PACTA SUNT SERVANTAevery treaty in force is BINDING upon the
parties and must be PERFORMED by them in GOOD FAITH
o A party may NOT INVOKE INTERNAL LAW as justification for its failure
to perform a treaty
o It is binding upon each party in respect of its entire territory unless a
different intention appears in the treaty or is otherwise established
9. Interpretation of Treaties
a. Objective approachinterpretation according to the ordinary
meaning of the words

Public International Law

b.Teleological approachinterpretation according to the telos or purpose


of the treaty

Open to all states of the world; Create the norms


which are the basis for a general rule of law

Page|3

c.Subjective approachhonors special meaning given by the parties

Invalidity of Treaties
1. Errorrelates to a fact or situation which was assumed by that State to
exist at the time when the treaty was concluded and formed
2. FraudState has been induced to conclude a treaty
3. Corruption of a Representative of a State
4. Coercion of a Representative of a State
5. Coercion of a State by the threat or use of force
6. Violation of jus cogenstreaty is void if, at the time of its conclusion, it
conflicts with a preemptory norm of general international law
Amendment and Modification of Treaties

Amendmentformal revision done with the participation, at least in its initial stage,
by all the parties to the treaty
Modificationinvolves only some parties

Termination of Treaties

1.

2.
3.

Terminated or suspended according to the terms of the treaty or with the consent of
the parties

Material Breach
a. Repudiation of the treaty not sanctioned by the present Convention
b. Violation of a provision essential to the accomplishment of the
object or purpose of the treaty
Supervening Impossibility of Performance
o Results from the permanent disappearance or destruction of an
object indispensable for the execution of the treaty
Rebus sic stantibus
o Resulted in a radical transformation of the extent of the
obligations imposed by it, may, under certain conditions, afford
the party affected a ground for invoking the termination or
suspension of the treaty

Procedure for the Termination of Treaties


1. Notify other parties of ground and measure proposed
2. If no objection, carry out the measure proposed
3. If there is an objection, follow Art. 33

Succession to Treaties
Clean Slate Rule: newly independent state is not bound to maintain in
force or to become a party to any treaty by reason only of the fact that at
the date of the succession of states, the treaty was in force in respect of
the territory to which the succession of state relates
CHAPTER 4
Dualism v. Monism

*when
international and
municipal law are
in
conflict,
Municipal
law
must prevail
Monism
or
Monistic Theory
*International and
Municipal
laws
belong to
only
one system of law

Municipal Law in International Law

Belongs to the one who has authority to enter into the treaty

Follows the dualist tradition and blocks domestic law from entry into the international
arena
A state which has violated a provision of international law cannot justify itself by
recourse to its domestic law
A state which has entered into an international agreement must modify its law to make
it conform to the agreement

International Law in Domestic Law

In the Philippines, authority to conclude treaties is shared between the Senate and
the President

How does international law become part of domestic law for dualists?

1.

2.

& DSP

Municipal Law
International Law
Product
of
local Treaties and custom
custom
or
of grown among states
legislation
As
to Regulates
relations Regulates
relations
relations
between
individual between states
they
persons under
the
regulate
state
As to their Law of
sovereign Law
between
substance
over individuals
sovereign states
Two theories:
A. Municipal law subsumes and is superior to
international law
B. International law is superior to Domestic Law
(supported by Kelsen)

Dualist
or As
to
Pluralist Theory
source

Authority to Terminate

INTERNATIONAL LAW AND MUNICIPAL LAW

Public International Law

Philippines adheres to the dualist theory and at the same time adopts the
incorporation theory and thereby makes international law part of domestic

Doctrine of Transformation
o It must be expressly and specifically transformed into domestic
law through the appropriate constitutional machinery such as
an act of Congress or Parliament
o Treaties do not become part of the law of a state unless it is
consented to by the state
Doctrine of Incorporation
o They become part of the law of the land
Page|4

law

International law can be used by Philippine courts to settle domestic disputes

Commencement of their Existence

Art. 2, Sec. 2 of the Constitution: only customary law and treaties which
have become part of customary law become part of Philippine law by
incorporation

State, as a person of international law, should possess the following


qualifications: (Montevideo Convention of 1933 on Rights and Duties of States)

1. Permanent populationPEOPLE a community of persons sufficient


in number and capable of maintain the permanent existence of the
community and held together by a common bond of law

Conflict between International Law and Domestic Law: International Rule

2. Defined territoryan entity may satisfy this requirement even if its


boundaries have not been finally settled, if one or more of its
boundaries are disputed, or if some of its territory is claimed by
another state

Before an international tribunal, a state may not plead its own law as an excuse for
failure to comply with international law

Exception: Art. 46 of Vienna Convention = in cases where the constitutional


violation was manifest and concerned a rule of its internal law of
fundamental importance

Manifest = objectively evident to any State conducting itself in the matter in


accordance with normal practice and in good faith

Conflict between International Law and Domestic Law: Municipal Rule

Should a conflict arise between an international agreement and the


Constitution, the treaty would not be valid and operative as domestic law

Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the


Supreme Court to declare a treaty unconstitutional; however, even if
declared unconstitutional, the treaty will not lose its character as an
international law

It is the National Government that has legal personality and it is such


that is internationally responsible for the actions of other agencies
and instrumentalities of the state
Temporary absence of government does not terminate the existence of a state

4. Capacity to enter into relations with other States


SOVEREIGNTY

SUBJECTS OF INTERNATIONAL LAW


STATES

Subjects of International Lawentities endowed with rights and obligations in


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

3. Governmentthat institution or aggregate of institutions by which


an independent society makes and carries out those rules of action
which are necessary to enable men to live in a social state

Domestic courts are bound to apply the local law

CHAPTER 5

An entity does not necessarily cease to be a state even if all its


territory has been occupied by a foreign power or if it has otherwise
lost control of its territory temporarily

Those with international personality

Objects of International Lawthose who indirectly have rights under or are


beneficiaries of international law through subjects of international law
Statespredominant actors; a community of persons more or less numerous,
permanently occupying a definite portion of territory, independent of external
control, and possession an organized government to which the great body of
inhabitants render habitual obedience

independence from outside control

Principle of Self-determinationsovereignty
as an element of a state is related

but not identical to this principle by virtue of this, people freely determine their
political status and freely pursue their economic, social and cultural development

Levels of claim to Self-determination


1.
Establishment of New Statethe claim by a group within an established
state to break away and form an new entity
2.
Does not involve Establishment of New Statesimply involves claims
a. To be free from external coercion
b. To overthrow effective rulers and establish a new governmentthe
assertion of the right of revolution
c. Of people within an entity to be given autonomy

state

International law has not recognized a right of secession from a legitimately existing

Recognition of Statesthe act of acknowledging the capacity of an entity to


exercise rights belonging to statehood

& DSP

Public International Law

Can an entity claim to be a state before it is recognized by other states?


Declaratory Theory
Constitutive Theory
Recognition is merely declaratory of Recognition constitutes a state
the existence of the state
Its being a state depends upon its
It is what makes a state a state and
possession of the required elements
confers legal personality on the entity

Page|5

and not upon recognition


States may decide to recognize an
entity as a state even if it does not
have all the elements of a state
Recognition of Governmentact of acknowledging the capacity of an entity

to exercise powers of government of a state

If a change in government in an existing state comes about through ordinary


constitutional procedure = recognition by others comes as a matter of
course

Consequence of Recognition or Non-Recognition

Succession to treaties
Moving Treaty Rule / Moving Boundaries Rulewhen part of the
territory of a state becomes territory of another state, the
international agreements of the predecessor state cease to have
effect in respect of the territory
o Relief from treaty obligation is rebus sic stantibus
b.When a state is absorbed by another state, international agreements of
the absorbed states are terminated
c.Clean Slate Theorywhen part of a state becomes a new state, the
new state does not succeed to the international agreements to which
the predecessor state was a party unless, expressly or impliedly, it
accepts such agreements
d.Uti possidetis Rulepre-existing boundary and other territorial
agreements continue to be binding notwithstanding
a.

Doors of funding agencies are opened


Loans are facilitated
Access to foreign courts and immunity from suit are gained
Military and financial assistance also come within reach

Absence of formal recognition bars an entity from all these benefits or, at least,
access to them may be suspended
Admission of a government to the UN does not mean recognition by all members but
only to the extent of the activities of the organization

Recognition of a regime is terminated when another regime is recognized

Succession of States

4.

A government, once recognized, gains increased prestige and stability

a.
b.
c.
d.

Views on Succession

A. The new state succeeds to no rights or obligations of the


predecessor state but begins with a tabula rasa
B. Successor state assumes all obligations and enjoys all the rights of
the predecessor

Issues on Succession of States


1. Succession to territorywhen a state succeeds another state with
particular territory, the capacities, rights and duties of the predecessor
state with respect to that territory terminate and are assumed by the
successor state
2. Succession to state propertythis is subject to agreement between
predecessor and successor states
3. Succession to contractsthis is subject to agreement between the states
concerned

Fundamental Rights of States


1.
Independencecapacity of a state to provide for its own well-being
and development free from the domination of other states
o Right to exercise within its portion of the globe, to the exclusion of
others, the functions of a state
o Restrictions upon a states liberty either from customary law or from
treaties do not deprive a state of independence
o There is duty not to interfere in the internal affairs of other states
o Rights flowing from independence:
a. Jurisdiction over its territory and permanent population
b. Right to self-defense
c. Right of legation
2.
Equalityequality of legal rights irrespective of size or power of the
state
o Within the General Assembly, the doctrine means one state, one vote
3.

1.
a.
b.
c.
d.
& DSP

Responsibility for the public debt of the predecessor, and rights and
obligations under its contracts remain with the predecessor state but
is subject to certain exceptions

Peaceful Co-Existencemutual respect for each others territorial


integrity and sovereignty, mutual non-aggression, non-interference in each
others affairs and the principle of equality
Some Incomplete Subjects
Protectoratesdependent states which have control over their internal
affairs but whose external affairs are controlled by another state; referred to as
Autonomous states
Vassal states
Semi-sovereign
Dependent sates

Public International Law

Page|6

problem
2.

Federal statea union of previously autonomous entities


o The central organ will have personality in international law but the
extent of international personality of the component entities can be a

3.

Mandated and Trust Territoriesterritories placed by the League of


nations under one or other of the victorious allies of WWI

After WWII, this was replaced by trusteeship system

4.

Taiwana non-state territory which de jure is part of China

5.

The Sovereign Order of Maltathe Italian Court of Cassation in 1935


recognized its international personality

6.

The Holy See and Vatican Cityrecognized under Lateran Treaty; it has
no permanent population
CHAPTER 6

OTHER SUBJECTS OF INTERNATIONAL LAW

The United Nations: Structure and Powers


Came into being on Oct. 24, 1945

A universal organization charged with peacekeeping responsibilities,


development of friendly relations among nations, achievement of international
cooperation in solving international problems of an economic, social, cultural
and humanitarian character, and the promotion of human rights and fundamental
freedoms for all human beings without discrimination
UN is enjoined against intervening in matters which are essentially within the
domestic jurisdiction of any state

International Constitutional Supremacy Clausein the hierarchy of


international organizations, the UN occupies a position of preeminence so if
there is a conflict with other international agreement, obligations under the UN
Charter shall prevail
Principal organs of UN:

INTERNATIONAL ORGANIZATIONS

1.

General Assemblyit has plenary power in the sense that it may


discuss any question or any matters within the scope of the
Charter
o GA distinguishes between
a. Important questionsdecided by 2/3 majority of the
members voting and present
b. Other questionsdecided by the majority

2.

Security Councilhas primary responsibility for the maintenance of


international peace and security
There are 15 member states, 5 permanent and the others are
elected for 2 year terms in accordance with equitable geographic
representation
Distinguishes between
a.Procedural matters
b.All other mattersrequires 9 affirmative votes, including
the concurring votes of the permanent members
The Charter does not specify what matters are procedural, hence,
decision on whether a matter is procedural or not
requires the concurrence of the permanent members
Abstention = veto

An organization that is set up by treaty among 2 or more states which have


international personality

Constituent instruments of international organizations are multilateral


treaties, to which the well-established rules of treaty interpretation apply
Non-governmental organizations (NGO)set up by private persons

Although international organizations have personality in international law,


their powers and privileges are by no means like those of states since it is
limited by the constitutional instrument that created them

Advisory Opinion on the Use of Nuclear Weapons

International organizationsgoverned by the Principle of Specialty they


are invested by the States which create them with powers, the limits of
which are a function of the common interests whose promotion those States
entrust to them.
Powers conferred on international organizationsnormally the subject of an
express statement in their constituent instruments but in order to achieve
their objectives, they possess subsidiary powers which are not expressly
provided for in the basic instruments which govern their activities.

o
o

Immunitiesbased on the need for the effective exercise of their functions and
not from sovereignty

3.

Economic and Social Council (ECOSOC)has 54 members elected


for 3 year terms

4.

Trusteeship Councilsupervises non-self governing territories


o The Council suspended operations after Palau became
independent on Oct. 1, 1994

5.

International Court of Justice (ICJ)principal judicial organ of the


UN

These immunities come from the conventional instrument creating them

& DSP

6.

Public International Law

Secretariatcomprises a Secretary General and such staff as the


Organization may require
o Secretary Generalelected to a 5 year term by General Assembly
upon the recommendation of the Security Council, subject to veto
power

Page|7

Other Agencies:
1.
2.

United Nations Educational, Scientific and Cultural Organizations


(UNESCO)
International Civil Aviation Organization (ICAO)

3.
4.
5.
6.

World Health Organization (WHO)


Food and Agricultural Organization (FAO)
World Bank
International Monetary Fund (IMF)

Common Article 3for armed conflict not of an international character

Prohibited acts under Article 3:

a.

Violence to life and person, in particular, murder of all kinds,


mutilation, cruel treatment and torture
b. Taking of hostages
c. Outrages upon personal dignity, in particular, humiliating and
degrading treatment
d. Passing of sentences and the carrying out of executions without
previous judgment pronounced

Regional Organizationsthey are neither organs nor subsidiary organs of UN

They are autonomous international organizations having an institutional affiliation


with UN by concluding agreements with UN

Created by international agreements for the purpose of dealing with


regional problems in general or with specific matters be they economic,
military or political

ASEANestablished on Aug. 8, 1967 in Bangkok, Thailand with the signing of the


Bangkok Declaration by the 5 original member countries: Indonesia, Malaysia,
Philippines, Singapore and Thailand

NATIONAL LIBERATION MOVEMENTS

powers

Characteristics:

a.

They can be based within the territory which they are seeking to
liberate or they might find a base in a friendly country
b. Their goal is self-determinationto free themselves from colonial
domination, or a racist regime or foreign occupation
c. There is the ultimate goal of controlling a definite territory
d. They must have an organization capable of coming into contract
with other international organizations

Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995; Laos and
Myanmar on July 23, 1997; Cambodia in 1999.

3 main objectives:

a.

Promote economic, social and cultural development of the region


through cooperative programs
b. Safeguard the political and economic stability of the region against
big power rivalry
c. Serve as a forum for the resolution of intra-regional differences

INDIVIDUALS

INSURGENTS

Protocol IIfirst and only international agreement exclusively regulating the conduct
of parties in a non-international armed conflict

Possess limited rights and obligations (deriving from customary international law) in
international law
Obligations of individuals are those arising from the regulation of armed conflicts

Requirements for Material Field of Application:

a. Armed dissidents must be under responsible command


b. They must exercise such control over a part of its territory as to
enable them to carry out sustained and converted military
operations and to implement this Protocol

Organized groups fighting in behalf of a whole people for freedom from colonial

When individual rights are violated, however, individuals still have to


rely on the enforcement power of states; but some treaties have provided for
the right of individuals to petition international bodies alleging that a
contracting state has violated some of their human rights

Insurgent groups which satisfy the material field of application may be


regarded as para-statal entities possessing definite if limited form of
international personality

They are recognized as having belligerent status against the de


jure government
b. They are seen as having treaty making capacity

CHAPTER 7

a.

Territory in International Lawan area over which a state has effective control

Exact boundaries might be uncertain but there should be a definitive core over which
sovereignty is exercised

Public International Law

& DSP

Modes of Acquisition of Sovereignty over Territory


1. Discovery and Occupation

o Occupationacquisition of terra nullius territory which prior to occupation


belonged to no state or which may have been abandoned

by a prior occupant
o There is abandonment when occupant leave the territory with the
intention of not returning
o Discovery of terra nullius is not enough to establish sovereignty; it must
be accompanied by effective control

TERRITORY: LAND, AIR, OUTER SPACE

Acquisition of territoryacquisition of sovereignty over territory


Includes land, maritime areas, airspace and outer space

Page|8

WESTERN SAHARA CASE


HELD:
Territories inhabited by tribes or peoples having a social and political
organization were not regarded as terra nullius.
The information furnished to the Court shows that at the time of
colonization, Western Sahara was inhabited by peoples which, if
nomadic, were socially and politically organized into tribes and under

chiefs competent to represent them.

In resolving island territorial disputes, the following 3 important rules


must be followed:
1. Title based on contiguity has no standing in international law
2. Title by discovery is only an inchoate title
3. If another sovereign begins to exercise continuous and actual
sovereignty and the discoverer does not contest this claim, the claim
by the sovereign that exercises authority is greater than a title based
on mere discovery

THE ISLAND OF PALMAS


HELD:
ContiguityUS also argued that Palmas was US territory because the
island was closer to the Philippines than to Indonesia which was then held
by the Netherlands East Indies. The arbitrator said there was no positive
international law which favored the US approach of terra firma, where the
nearest continent or island of considerable size gives title to the land in
dispute. The arbitrator held that mere proximity was not an adequate
claim to land noted that if the international community followed the
proposed United States approach, it would lead to arbitrary results.
Continuous and peaceful display of sovereigntythe Netherlands' primary
contention was that it held actual title because the Netherlands had
exercised authority on the island since 1677. The arbitrator noted that the
US had failed to show documentation proving Spanish sovereignty on the
island except those documents that specifically mentioned the island's
discovery. Additionally, there was no evidence that Palmas was a part of
the judicial or administrative organization of the Spanish government of
the Philippines. However, the Netherlands showed that the Dutch East
India Company had negotiated treaties with the local princes of the island
since the 17th century and had exercised sovereignty, including a
requirement of Protestantism and the denial of other nationals on the
island. The arbitrator pointed out that if Spain had actually exercised
authority, than there would have been conflicts between the two countries
but none are provided in the evidence.

EASTERN GREENLAND CASE


HELD:
A claim to sovereignty based not upon some particular act or title such as
treaty or cession but merely upon continued display of authority, involves
2 elements each of which must be shown to exist: (a) intention and will to
act as sovereign, and (b) some actual exercise or display of such authority.
Another circumstance which must be taken into account is the extent to
which the sovereignty is also claimed by some other Power.
One of the peculiar features of the present case is that up to 1931, there
was no claim by any Power other than Denmark to the sovereignty of
Greenland.
2.

Prescriptionrequires effective control and the object is not terra


nullius
o The required length of effective control is longer than in occupation
o May be negated by a demonstrated lack of acquiescence by the prior
occupant

3.
o
4.

Cessionacquisition of territory through treaty


A treaty of cession which is imposed by a conqueror is invalid

Conquest and Subjugation


Conquesttaking possession of a territory through armed force
It is necessary that the war had ended either by treaty or by indication
that all resistance had been abandoned
o Now, conquest is proscribed by international law
o No territorial acquisition resulting from the use or threat of force shall
be recognized as legal
o
o

5.
o
o

& DSP

Accretion and Avulsionsovereignty by operation of nature


Accretiongradual increase of territory by the action of nature
Avulsionsudden change resulting for instance from the action of a
volcano

Public International Law

Page|9

Is Contiguity a Mode of Acquisition?

It is impossible to show a rule of positive international law to the effect


that islands situated outside the territorial waters should belong to a
state from the fact that its territory forms part of the terra firma (Las
Palmas Case)

Intertemporal Law

Rules in effect at the time of the acquisition should be applied

Convention on the Law of the Sea of 1982 prevailing law on maritime domain
AIRSPACE

Each state has exclusive jurisdiction over the air space above its territory
Sovereignty over airspace extends only until where outer space begins
Consent for transit must be obtained from the subjacent nation
State Aircraftaircraft used in military, customs and police services

No state aircraft of a contracting State shall fly over the territory of another
State or land thereon without authorization by special agreement or
otherwise, and in accordance with the terms thereof.

Art. 2 of the 1982 Law of the Sea provides that


Sovereignty of a coastal State extends, beyond its land territory and
internal waters and, in case of an archipelagic State, its archipelagic waters, to
an adjacent belt of sea, described as territorial sea
2.
Sovereignty extends to the air space over the territorial sea as well as
to its bed and subsoil
3.
Sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law
1.

(Art. 3[a] of Chicago Convention on International Civil Aviation)

Aircraft must not only not be attacked unless there is reason to suspect that
the aircraft is a real threat but also that a warning to land or change course
must be given before it is attacked (Lissitzyn)
Civilian aircraft should never be attacked

OUTERSPACE

Territorial Sea belt of sea outwards from the baseline and up to 12 nautical
miles beyond
o The width of this territorial belt of water is the 12-mile rule

Outer space, wherever that might be, and celestial bodies, are not susceptible to
appropriation by any state

CHAPTER 8
TERRITORY: LAW OF THE SEA
Importance of the Sea
1. Medium of communication
2. Contain vast natural resources
Grotius elaborated the doctrine of the open seas which considers the high
seas as res communis accessible to all
o The doctrine recognized as permissible the delineation of a maritime
belt by littoral states as an indivisible part of its domain
o Maritime belt = territorial sea

dividing line is the median line equidistant from the opposite baselines
Equidistance rule does not apply where historic title or other special
circumstances require a different measurement
Baselines the low-water line along the coast as marked on large scale charts
officially recognized by the coastal State

The Moon and other celestial bodies shall be used by all State Parties to the Treaty
exclusively for peaceful purposes. (1967 Treaty on the

Exploration and Use of Outer Space)

However, where the application of the 12-mile rule to neighboring littoral states

would result in overlapping


the rule is that the

Two ways of drawing the Baseline:


1.
Normal baseline one drawn following the low-water line along the
coast as marked on large scale charts officially recognized by the coastal State
o this line follows the curvatures of the coast and therefore
would normally not consist of straight lines
2.
Straight baseline drawn connecting selected points on the coast
without appreciable departure from the general shape of the coast
o Most archipelagic states use straight baselines
o Art. 47 of the Convention on the Law of the Sea the length
of such baseline shall not exceed 100 nautical miles, except
that up to 3% of the total number of baselines enclosing any
archipelago may exceed that length up to a maximum length of
125 nautical miles

Sovereignty over Territorial Sea same as sovereignty over its land territory
The sea and the strait are subject to the right of innocent passage by
other states
Right of Innocent Passage passage that is not prejudicial to the peace, good
order or security of the coastal state
o Applies to ships, aircrafts, and submarines

& DSP

Public International Law

Coastal states have the unilateral right to verify the innocent character
of passage, and it may take the necessary steps to prevent passage that
it determines to be not innocent

Internal Waters all waters landwards from the baseline of the territory o

P a g e | 10

Coastal states may regulate access to its ports (Nicaragua case)

Archipelagic Waters
o An archipelagic state may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious passage of

foreign ships and aircraft through or over its archipelagic waters and the
adjacent territorial sea
The concept of the archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines, and removes
straits connecting these waters with the economic zone or high sea
from the rights of foreign vessels to transit passage for international
navigation

Two Primary Obligations of Coastal States:


They must ensure through proper conservation and management
measures that the living sources of the EEZ are not subjected to over
exploitation
2.
They must promote the objective of optimum utilization of the living
sources
1.

The Continental (Archipelagic) Shelf refers to the


Seabed and subsoil of the submarine areas adjacent to the coastal
state but outside the territorial sea, to a depth of 200 meters or, beyond that
limit, to where the depth allows exploitation
b.
Seabed and subsoil of areas adjacent to islands

Bays 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
o Considered as internal waters of a coastal state
o Indentation shall not be regarded as bay unless its area is as large as, or
larger than, that of the semi-circle whose diameter is a line drawn
across the mouth of that indentation

a.

Historic Bays treated by the costal state as internal waters on the basis of
historic rights acknowledge by other states

Contiguous Zone an area of water not exceeding 24 nautical miles from the
baseline
o It extends 12 nautical miles from the edge of the territorial sea
o Coastal state exercises authority over that area 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
o However, the power of control given to the littoral state does not
change the nature of the waters
o Beyond the territorial sea, the waters are high sea and are not subject
to the sovereignty of the coastal state
Exclusive Economic Zone or Patrimonial Sea an area extending not more
than 200 nautical miles beyond the baseline
o Coastal state has rights over the economic sources of the sea, seabed
and subsoil but the right does not affect the right of navigation and
overflight of other states
o The delimitation of the overlapping EEZ between adjacent states is
determined by agreement

& DSP

o
o

The Deep Seabed: Common Heritage of Mankind


These are areas of the seabed and ocean floor, and their subsoil, which
lie beyond any national jurisdiction
These are the common heritage of mankind and may not be
appropriated by any state or person
Islands naturally formed area of land, surrounded by water, which is above
water at high tide
o Artificial islands or installations are not islands
o Important due to the possibility of exploiting oil and gas resources
around them
Islands can have their own territorial sea, exclusive economic zone and
continental shelf
Rocks which cannot sustain human habitation or economic life shall
have no exclusive economic zone or continental shelf, but can have a territorial
sea
The High Seas all parts of the sea that are not included in the territorial sea or
in the internal waters of a state
The flag state has exclusive jurisdiction over its ships on the high seas to
the extent not limited by agreement

Six Freedoms which High Seas are subject to:


Navigation
Overflight belongs to both civilian and military aircraft
Fishing includes the duty to cooperate in taking measures to ensure
the conservation and management of the living resources of the high seas
d.
Lay submarine cables and pipelines
e.
Construct artificial islands and structures
f.
Scientific research
a.
b.
c.

Public International Law

Hot Pursuit
o Art. 111 allows hot pursuit of a foreign vessel where there is good
reason to believe that the ship has violated laws or regulations of a
coastal state
o This must commence when the foreign vessel is within the internal
waters, archipelagic waters, territorial waters, exclusive economic
zone, continental shelf or the contiguous zone of the pursuing state

o
o

P a g e | 11

Hot pursuit must stop as soon as the ship pursued enters the territorial
waters of its own state or of a third state
May be carried out only by warships or military aircraft, or any other
ships or aircraft properly marked for that purpose

Settlement of Disputes
o Peaceful settlement is compulsory

Effects Doctrine
o State also has jurisdiction over acts occurring outside its territory but
having effects within it
1. Subjective Territorial Principle a state has jurisdiction to prosecute and
punish for crime commenced within the state but completed or
consummated abroad
2. Objective Territorial Principle state has jurisdiction to prosecute and
punish for crime commenced without the state but consummate within its
territory

CHAPTER 9
JURISDICTION OF THE STATES
Jurisdiction authority to affect legal interests
o The scope of a states jurisdiction over a person, thing or event depends
on the interest of the state in affecting the subject in question
o Corresponding to the powers of the government, jurisdiction can be:
1. Legislative jurisdiction prescribe norms of conduct
2. Executive jurisdiction enforce the norms prescribed
3. Judicial jurisdiction adjudicate
o International law limits itself to criminal rather than civil jurisdiction
o Civil jurisdiction is subject for private international law or conflicts of
law
o Jurisdiction may also be acquired by treaty
o However, there are 5 popular principles on jurisdiction
TERRITORIALITY PRINCIPLE
o This is generally supported in customary law
o Fundamental source of jurisdiction is sovereignty over territory
o It is necessary that boundaries be determined
o To have jurisdiction, occupation is not enough; control must also be
established (Las Palmas Case)

Jurisdiction over Foreign Vessels in Philippine Territory we follow the English


Rule
1.
French Rule crimes committed abroad a foreign merchant vessel
should not be prosecuted in the courts of the country within whose territorial
jurisdiction they were committed unless their commission affects the peace and
security of the territory
2.
English Rule crimes perpetrated under such circumstances are in
general triable in the courts of the country within whose territory they were
committed

Boundary separating the land areas of two states is determined by the acts of
the states expressing their consent to its location

When the boundary between 2 states is a navigable river


of the channel of navigation

When boundary between 2 states is a non-navigable river or lake


the middle of the river or lake

Effective Nationality Link used to determine which 2 states of which a person


is a national will be recognized as having the right to give diplomatic protection
to the holder of dual nationality

its location is the middle

NATIONALITY PRINCIPLE
o This is generally supported in customary law
Every state has jurisdiction over its nationals even when those
nationals are outside the state

Corporations state has jurisdiction over corporations organized under its laws

its location is

Maritime vessels state has jurisdiction over vessels flying its flag
o Same applies to aircraft and spacecraft
Stateless Persons persons who have no nationality
De jure stateless persons who have lost their nationality, if they had
one, and have not acquired a new one
b.
De factor stateless persons who have a nationality but to whom
protection is denied by their state when out of the State
a.

o
o
& DSP

Examples of acts covered by Protective Principle:


a. Plots to overthrow the government
b. Forging its currency

PROTECTIVE PRINCIPLE
o This is generally supported in customary law
State may exercise jurisdiction over conduct outside its territory that
threatens its security as long as that conduct is generally
recognized as criminal by states in the international community
However, this is strictly construed to those offenses posing a direct,
specific threat to national security

Public International Law

c.

P a g e | 12

Plot to break its immigration regulations

UNIVERSALITY PRINCIPLE

This recognizes that 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

Examples of acts covered by Universality Principle:


a. Piracy any illegal act of violence or depredation committed for
private ends on the high seas or outside the territorial control of any
state
b. Genocide acts committed with intent to destroy, in whole or in part,
a national, ethical, racial or religious group
c. Crimes against humanity acts committed as part of a widespread or
systematic attack directed against any civilian population
1. Attack directed against any civilian population
2. Extermination internal infliction of conditions of life
3. Enslavement
4. Deportation or forcible transfer of population
5. Torture
6. Forced pregnancy
7. Persecution
8. Crime of Apartheid
9. Enforced disappearance of persons
d. War crimes grave breaches of the Geneva Convention of 12 August
1949, namely, any of the following acts against persons or property
protected under the provisions of the relevant Geneva Convention
e. Aircraft piracy
f. Terrorism
PASSIVE PERSONALITY PRINCIPLE
o This does not enjoy wide acceptance
o State may apply law, criminal law, to an act committed outside its
territory by a person not its national where the victim of the act was its
national
o Not accepted for ordinary torts or crimes but is increasingly accepted as
applied to terrorist and other organized attacks on a states nationals
by reason of their nationality, or to assassination of a states diplomatic
representatives or other officials
CONFLICTS OF JURISDICTION modes of resolving conflict of jurisdiction
1. Balancing Test if the answer is yes to all the following questions, then
the court will assume jurisdiction
a. Was there an actual or intended effect on a states foreign commerce?

2.

International Comity state will refrain from exercising its jurisdiction is


it is unreasonable
o Factors to consider in determining unreasonableness:
a. Link or connection of the activity to the territory of the regulating
state
b. Character of the activity to be regulated
c. Existence of justified expectations that might be protected or hurt by
the regulation
d. Likelihood of conflict with regulation by another state
3. Forum non conveniens application is discretionary with the court
o If in the whole circumstances of the case it be discovered that there is
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
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 or to have been convicted of a crime
o This is a process that is governed by a treaty
o Legal right to demand extradition and the correlative duty to surrender a
fugitive exist only when created by treaty
o Procedure for extradition is normally through diplomatic channels
Principles governing Extradition
1. No state is obliged to extradite unless there is a treaty
2. Differences in legal system can be an obstacle to interpretation of what
the crime is
3. Religious and political offenses are not extraditable
Bail in Extradition Cases
o Bail may be granted to a possible extraditee only upon a clear and
convincing showing that
1. He will not be a flight risk or a danger to the community
2. There exist special, humanitarian and compelling circumstances

Public International Law

& DSP

CHAPTER 10:
IMMUNITY FROM JURISDICTION
*
*

b. Is the effect sufficiently large to present a cognizable injury to the


plaintiffs, and, therefore, a violation of the anti-trust law?
c. Are the interests of the state sufficiently strong, vis--vis those of other
nations, to justify an assertion of extraordinary authority

GR: Jurisdiction of a state within its territory is complete and absolute.


Exceptions:
1.) Sovereign immunity
2.) Diplomatic/consular immunity

P a g e | 13

A. Immunity of Head of State


- Applies to both the Head of State and to the State itself
Mighell v. Sultan of Johore
The Sultan of Johore was sued for bread of a promise to marry in a British court.
Despite the fact that it was a private suit, it was dismissed upon verification that
the Sultan was a sitting foreign sovereign.

Pinochet Case: Regina v. Bartle and the Commissioner of Police (House of


Lords, 1999)
General Augusto Pinochet led a military coup that overthrew the Chilean
President Allende. According to a national truth and reconciliation mission, at
least 3,196 people were killed or forcibly disappeared during his dictatorship.
British authorities detained Pinochet on an arrest warrant issued by Spanish
Magistrate Baltasar Garzon under the charges of genocide, terrorism, and
torture.
In affirming that Pinochet did not enjoy immunity from prosecution as a former
head of state and could thus be extradited, the House of Lords explained:
a.) Senator Pinochet as a former head of state enjoys immunity rationae
materiae in relation to acts done by him in relation to his official
function as such.
b.) However, organization of state torture is not an act committed in his
official function. The commission of a crime which is an international
crime against humanity and jus cogens cannot be a state function. The
principle of individual responsibility for international criminal conduct
has become an accepted part of international law.
c.) The notion of continued immunity for ex-heads of state is
inconsistent with the provisions of the Torture Convention which
provides that the international crime of torture can only be committed
by an official or someone in official capacity. Since the immunity applies
also to officials who carried out the functions of the state, if torture is
treated as official business sufficient to justify the immunity, then no
party would be held liable and the structure of universal jurisdiction
over torture committed by officials is rendered abortive. d.) Thus,
Senator Pinochet was not acting in any capacity which gives rise to
immunity rationae materiae since authorized and organized torture are
contrary to international law.

B. State Immunity
The State may not be sued without its consent.
Based on the principle of equality and independence of states: par in parem non
habet imperium.
With the gradual expansion of state involvement in commerce, the principle of
state immunity has evolved to one of restrictive state immunity: only acts jure
imperii (governmental acts) and not acts jure gestionis (trading and commercial
acts) are immune.
The Schooner Exchange v. MacFaddon
States enjoy absolute immunity. Despite the absolute territorial jurisdiction of
states, one sovereign, being bound to not degrade the dignity of his nation by
placing himself within the jurisdiction of another, can be supposed to enter into
foreign territory in the confidence that the immunities belonging to his
independent sovereign station, though not expressly stipulated, are reserved by
implication and will be extended to him.
Dralle v. Republic of Czechoslovakia
It can no longer be said that by international law, acta gestionis are exempt
municipal jurisdiction. The classic doctrine of immunity arose at a time when
there was no justification for any distinction between private transactions and
acts of sovereignty. Today, States engage in commercial activities and enter into
competition with their own nationals as well as foreigners.
USA v. Hon. V.M. Ruiz (Philippines)
The traditional rule of State immunity is a necessary consequence of the
principles of independence and equality of States. However, the rules of
International Law are constantly developing and evolving. Because state
activities have multiplied, it has become necessary to distinguish them between
sovereign and governmental acts, and private, commercial and proprietary acts.
The result is that State immunity now extends only to acts jure imperii. A state
may be said to have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when it enters into
business contracts. But this does not apply where the contract relates to the
exercise of its sovereign functions.
In this case, repairs of base facilities are an integral part of the naval base
devoted to the defense of both the US and the Philippines, which is a function of
the government not utilized nor dedicated to commercial or business purposes.
US v. Hon. Luis Reyes (Philippines)
A claim of immunity by an American official was rejected when shown to have
been committed outside the scope of her authority as well as contrary to law.

& DSP

Public International Law

Unauthorized acts of government officials or officers are not acts of the State,
and an action against the latter is not a suit against the State within the rule of
immunity of the State from suit. The doctrine of state immunity cannot be used
as an instrument to perpetrate an injustice.
Holy See v. Eriberto Rosario, Jr. (Philippines)

P a g e | 14

The mere entering into a contract by a foreign state with a private party cannot
be the ultimate test of whether the activity or transaction is
commercial.
One must also question: (a.) whether the foreign state is engaged in the activity
in the regular course of business; and (b.) if not, whether the nature of the

particular transaction or act is in pursuit of a sovereign activity or an incident


thereof. If the answer to (b.) is yes, and especially if it is not undertaken for
profit or gain, then the act is jure imperii.

the Philippines and by the proper court of Makati City, Philippines. In addition,
the Ambassador and Minister Counsellor may be sued in their personal capacity
for tortious acts done with malice and bad faith.

In this case, petitioner has denied having bought and sold lands in the ordinary
course of a real estate business. Instead, he claimed that the acquisition of Lot
5-A was for the site of its mission or the Apostolic Nunciature of the Philippines.
Respondent failed to dispute such claim.

The trial court denied the Motion to Dismiss, which the CA affirmed.

* How to claim State immunity?


In PIL, a State must request the Foreign Office of the state where it is sued to
convey to the court that it is entitled to immunity.
In the Philippines, the foreign government or international organization must
first secure an executive endorsement (in whatever form) of its claim of
sovereign or diplomatic immunity.

The SC ruled in favor of the petitioner:


a.) The rules of IL are neither unyielding not impervious to change. The
increasing need of sovereign states to enter into purely commercial
activities brought about a new concept of immunity. The restrictive
theory holds that immunity of the sovereign is recognized only with
regard to public acts but not with regard to private acts.

Republic of Indonesia v. Vinzon (2003)


Petitioner, Republic of Indonesia entered into a Maintenance Agreement with
respondent, James Vinzon of Vinzon Trade and Services, to maintain specified
equipment (aircons, generator sets, electrical facilities, water heaters, water
motor pumps) at the Embassy Main and Annex buildings and that the Wisma
Duta.

b.) The mere entering into a contract by a foreign state with a private
party cannot be construed as the ultimate test of whether or not it is an
act jure imperii or jure gestionis. If the foreign state is not engaged
regularly in a business or commercial activity, as in this case, the
particular act or transaction must be then tested by its nature. If it is in
pursuit of a sovereign activity or an incident thereof, then it is an act
jure imperii.

Petitioner questions the ruling of the CA that the former had waived its
immunity from suit based on the agreement.

Chief of Administration, Minister Counselor Azhari Kasim allegedly found


Vinzons work unsatisfactory and not in compliance with the agreed standards.
Thus, the Embassy terminated the agreement.
Respondent alleges that the termination was arbitrary and unlawful. Vinzon filed
a complaint in the RTC Makati. Petitioner filed a Motion to Dismiss based on
sovereign immunity from suit as well as diplomatic immunity under the Vienna
Convention on Diplomatic Relations, regarding the suit against Ambassador
Soeratmin and Minister Counsellor Kasim.

c.) The existence alone of a provision in the contract stating that any
legal action arising out of the agreement shall be settled according to
the laws of the Philippines and by a specified court of the Philippines is
not necessarily a waiver of state immunity from suit. It is merely meant
to apply where: (a.) the sovereign party elects to sue in the local
courts; or (b.) otherwise waives its immunity by any subsequent act. The
applicability of Philippine laws include the principle recognizing
sovereign immunity.

Respondent alleged that the petitioner has expressly waived its immunity from
suit based on a provision in the Maintenance Agreement which states that any
legal action arising from the agreement will be settled according to the laws of

d.) Submission by a foreign state to local jurisdiction must be clear and


unequivocal, given explicitly or by necessary implication. There is not
such waiver in this case.
e.) The establishment of a diplomatic mission is a sovereign function. It
encompasses its maintenance and upkeep. Hence, the state may enter
into contracts with private entities to maintain the premises, furnishings
and equipment of the embassy and the living quarter of its agents and
officials.
f.) Under Article 31 of the Vienna Convention on Diplomatic Relations, a
diplomatic agent may be sued in his private capacity for (c.) an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions. Bu
the acts of the Ambassador and the Minister Counsellor in

& DSP

Public International Law

terminating the agreement was committed in relation to their official


functions. Thus, they enjoy immunity from suit.

C. Diplomatic and Consular Immunities


Based on customary law.

P a g e | 15

Official representatives of a state are given immunities and privileges within the
territory of another state.
The immunities and privileges are personal (for diplomats benefit) but also
functional (to enable the diplomat to perform his functions properly).
The receiving state has a corresponding obligation to protect the representative
and his property and office.

* Diplomatic Immunities (Vienna Convention on Diplomatic Relations 1961)


Diplomatic relations are purely by mutual consent.
An agreement by the receiving state (RS) is a prerequisite before the head of
mission is sent. The RS has no obligation to explain its refusal, and may at any
time and without explanation notify the sending state (SS) that a diplomatic
agent is persona non grata or that a staff member is unacceptable.
The SS can either recall the person or terminate his functions with the mission.
Article I. Who can enjoy diplomatic immunities?
a.) head of mission
b.) diplomatic agent (head of mission or member of diplomatic staff)
c.) members of the mission including the diplomatic, administrative and
technical, and service staff
d.) private servant in the domestic service of a member of the mission, not
employed by the sending state
e.) premises of the mission, irrespective of ownership
Article III. Functions of the diplomatic mission: a.)
Represent the sending state in receiving state b.)
protect its interests and of its nationals
c.) negotiate with the government
d.) report on developments and conditions in the receiving state
e.) promote friendly relations

* Rights and Privileges of the diplomatic mission:


a.) Inviolability of mission premises and means of transport; RS has duty to
protect the premises and prevent any disturbance to the mission or impairment
of its dignity. (Art. 22)
b.) Tax Exemptions for the SS and the head of mission, not extending to those
payable under the laws of RS by persons contracting with them. (Art. 23)
c.) Inviolability of archives and documents of the mission. (Art. 24)
d.) Free communication and inviolability of official correspondence, of the
diplomatic courier, and of the diplomatic bag. (Art. 27)

& DSP

- Exceptions:
1.) Mission must have consent of RS to instate and use a wireless
transmitter.
2.) Diplomatic bag may only contain diplomatic documents or articles
for official use.
e.) Inviolability of the person of diplomatic agent from arrest or detention. (Art.
29)
f.) Inviolability of the private residence, property, papers, and correspondence
of a diplomatic agent. (Art. 30)
g.) Immunity of diplomatic agent from criminal, civil, and administrative
jurisdiction of RS; immunity from giving evidence as witness; immunity from
execution of judgement. (Art. 31)
- Exceptions:
1.) real action relation to private immovable property in the RS, unless
held on behalf of the SS for mission purposes
2.) action relating to succession, done as a private person and not on
behalf of the SS
3.) action relating to any professional or commercial activity done in the
RS outside his official capacity
h.) Express waiver of immunity from suit made by SS or impliedly by diplomatic
agent upon initiation of proceedings, but only in respect to compulsory
counterclaims. Waiver of immunity from suit is distinct from waiver of immunity
from execution. (Art. 32)
i.) Exemption from social security provisions of the RS for services rendered for
the SS. (Art. 33)
- Exception:
1.) private servant who is either a national or a permanent resident of
the RS; and
2.) not covered by the social security provision in the SS or a third state
j.) Tax exemption of diplomatic agents. (Art. 34) Exceptions:
1.) indirect taxes incorporated in price of goods or services
2.) dues and taxes on private immovable property in RS (unless on
behalf of SS, for mission purpose)
3.) estate, inheritance, succession duties
4.) private income from within RS
5.) charges levied for services rendered
6.) registration, court or record fees, mortgage dues and stamp duty on
immovable property
k.) Free entry of articles for official use of the mission and for the personal use
of the diplomatic agent or his family. (Art. 36)
- Exception:
1.) personal baggage of the diplomatic agent may be inspected in
his/duly authorized representatives presence if there is serious ground
to presume that it contains articles not exempted, or prohibited by
import or export laws or quarantine regulations

Public International Law

l.) Extension of immunity to family of diplomatic agent under Art. 29-36;


immunity of members of administrative and technical staff and their families
under Art. 29-35; immunity of service staff for official acts and tax exemption
under Art. 33; and tax exemption of private servant for emoluments due to
employment. (Art. 37)

P a g e | 16

- Exception:
1.) nationals of RS
2.) permanent resident of RS (not for family of diplomatic agent)
m.) Immunities of a diplomatic agent who is a national or permanent resident of

RS is limited to immunity from jurisdiction and inviolability in respect to official


acts. For others, only such privileges and immunities that the RS may allow. (Art.
38)
n.) Privileges and immunities begin from entry into RS, or if already there, from
notification of appointment to Ministry of Foreign Affairs of the RS. They cease
upon leaving the RS, or on reasonable period, but shall subsist even in armed
conflict. (Art. 39)
*Obligations of diplomatic mission:
a.) To respect the laws and regulations of the RS (Art. 41)
b.) To refrain from practice for personal profit any professional or commercial
activity in the RS. (Art. 42)
*

Consuls and Consular Immunities (Vienna Convention on Consular Relations 1967)


- Not concerned with political matters.
- Attend only to the administrative and economic issues.
- Head of consular post must first be authorized by RS via an exequatur.
- RS may at any time and without explanation notify the SS that a consular
officer is a persona non grata or a staff member is unacceptable.
- SS can only recall or terminate his functions with the consular post.
- RS has duty to protect the consular premises, archives and interests of the SS
and ensure the unimpeded functioning of the consular offices.
*

Article V. Consular Functions:


a.) protect the interest of the SS and of its nationals in the RS
b.) further development of economic, commercial, cultural and scientific
relations and promote friendly relations between RS and SS
c.) report on development and condition of RS
d.) issue passports and travel documents to nationals of SS and visa and
appropriate documents for those who wish to travel to SS
e.) assist nationals
f.) act as notary and civil registrar and perform administrative functions g.)
safeguard interests of nationals in cases of succession mortis causa in RS h.)
safeguard interest of nationals who are minors or lack full capacity
i.) represent or arrange representation for nationals before the tribunals or
other authorities of the RS
j.) transmit judicial and extrajudicial documents or executing letters to take
evidence for the courts of the SS

k.) exercise supervision and inspection over vessels under SS flag, aircrafts
registered in SS, and their crew
l.) extend assistance to such vessels and aircrafts and their crew
m.) other functions not prohibited by laws of RS
* Rights and Privileges of the consular mission:
a.) Freedom of movement (Art. 34)
b.) Freedom of communication (Art. 35)
c.) Communication and contact with nationals of the SS (Art. 36)
d.) Personal inviolability of consular officers from arrest or detention (Art. 41)
- Exceptions:
1.) grave crime; and
2.) pursuant to a decision by a competent judicial authority e.)
Notification of arrest, detention or prosecution (Art. 42)

f.) Immunity from jurisdiction for official acts. (Art. 43)


- Exceptions:
1.) civil actions arising from contract not entered into in official
capacity;
2.) civil action by a 3rd party for damage arising from an accident in the
RS cause by a vehicle, vessel or aircraft
g.) Liability to give evidence; a consular employee cant refuse while a consular
officer may refuse without threat of coercive measure or penalty. (Art. 44)
h.) Waiver of privilege and immunity under Art. 41, 43, and 44 by SS (Art. 45)
US v. Tehran: US Dipliomatic and Consular Staff in Iran Case ICJ (1980)
Iranian students seized the US embassy in Tehran and a number of consulates in
the outlying cities. The Iranian authorities failed to protect the embassy and
later appeared to adopt the students actions. Over 50 US nationals were held
hostage for 444 days.
Court must decide whether the initial attack by the students could be attributed
to the Iranian government and whether Iran was therefore in violation of its
international obligations.
In deciding in favor of the US, the ICJ ruled:
a.) The Iranian authorities were fully aware of their obligations under the
conventions to protect the premises of the US embassy and its diplomatic and
consular staff and were aware of the urgent need for action. They had the
means to perform their obligations but failed to do so.
b.) The actions required of the Iranian Government by the Vienna Conventions
and by general IL is manifest. They must immediately take every effort and
opportunity to bring the flagrant infringements of the inviolability of the
premises, archives, and diplomatic and consular staff of the US embassy to a
speedy end and to restore the consulates to the US control, and in general
reestablish the status quo and offer reparation for damage.

& DSP

Public International Law

P a g e | 17

failure to prevent the attacks.


c.) The Iranian Governments decision to continue the subjection of the embassy to
occupation by militants and the staff to detention as hostages clearly gave rise
to repeated and multiple breaches of the Vienna Conventions, beyond their

d.) The Iranian Government did not break of diplomatic relations with the US,

not did it indicate any intention to declare any member of the US diplomatic or
consular staff in Tehran persona non grata. Thus, Iran failed to employ the
remedies placed at its disposal by diplomatic law specifically for dealing with
activities it now complains of.

Alfred Dunhill of London, Inc. v. Cuba


The issue is whether or not the failure of Cuba to return to Dunhill funds
mistakenly paid by the latter for cigars sold to him by certain expropriated
Cuban cigar business was an act of state.

D. Immunity of International Organization


- The basis of their privileges and immunities is not sovereignty but necessity for
the effective exercise of their functions.

The Court ruled in favor of Dunhill:


a.) The concept of an act of state should not be extended to include the
repudiations of a purely commercial obligation owed by a foreign sovereign or by
one of its commercial instrumentalities.

E. The Act of State Doctrine


Underhill v. Hernandez
Through the 1982 revolution in Venezuela, Gen. Hernandez who commanded the
anti-administration party, assumed leadership of the government.
George Underhill, a US citizen, had constructed a waterworks system for Bolivar
under a contract with the government and operated a machinery repair business.
Gen. Hernandez refused to grant Underhill a passport to leave the city to coerce
him to operate his waterworks and repair works for the benefit of the
community and the revolutionary forces.
Underhill files a suit in the US to recover damages for the detention, his alleged
confinement to his own house, and for certain alleged assaults and affronts by
the soldiers of Hernadezs army.
In denying Underhills plea, the US court applied the act of state doctrine : a.)
Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one county will not sit in judgment on the acts
of the government of another, done within its own territory.
b.) Redress of grievances due to such acts must be obtained through the means
open to be availed of by sovereign powers as between themselves.
Banco Nacional de Cuba v. Sabbatino
The act of state doctrine is not a rule of international law but of judicial
restraint in domestic law, embodied by the principle of separation of powers,
whereby courts refrain from making decisions in deference to the executive who
is the principal architect of foreign relations.

Kirkpatrick Co. v. Environmental Tectonics Corp.


A contract was entered into between the Nigerian Government and Kirkpatrick
Co. for the construction and equipment of an aeromedical center at Kaduna Air
Force base in Nigeria.
Environmental Tectonics, an unsuccessful bidder, found that Kirkpatrick had
bribed Nigerian officials to win the contract. It brought the matter to the
Nigerian Air Force and the US embassy in Lagos.
US attorney for the District of NJ charged Kirkpatrick with violations of the
Foreign Corrupt Practices Act of 1977 to which the latter pleaded guilty.
Environmental Tectonics brought a civil action against Kirkpatrick to seek
damages under the Racketeer Influenced and Corrupt Organizations Act.
Defendant moved to dismiss the complaint on the ground of act of state
doctrine.
SC ruled that the act of state doctrine is inapplicable where the validity of a
foreign government act is not in question, as in this case.

CHAPTER 11
STATE RESPONSIBILITY
PROTECTION OF ALIENS

No State is obliged to admit aliens into its territory unless there is a treaty
requiring it
Generally, it is difficult to deny admission to all; Hence, States impose legal
standards for admission
Once admitted, at least under democratic regimes, aliens may not be
expelled without due process
Aliens = nationals abroad

States protect aliens within their jurisdiction in the expectation that their
own nationals will be properly treated when residing or sojourning abroad
Forms of ill-treatment of foreign nationals:
a. Mistreatment by judicial or police authorities
& DSP

Public International Law

b. Unlawful expropriation of property


c. Denial of justice or denial of due process of law failure to prosecute

P a g e | 18

those who attack foreign nationals


Diplomatic protection the instrument used for the protection of aliens

Injury to a national abroad = injury to the individuals State of nationality

The interest of the State is in the redress of the injury to itself and not of
the injury to the individual
Individuals are at the mercy of their own State

Neer Claim
Facts:
Mr. Neer, a US national working in Mexico, was shot to death. It was
claimed that the Mexican government had been negligent in their
investigation of the murder.

Corporations and Shareholders


The doctrine of effective link
Barcelona Traction Case
Facts:
The claim arose out of the adjudication of bankruptcy in Space of Barcelona
Traction, a company incorporated in Canada. The claims object was to seek
reparation for damage suffered by its shareholders, Belgian nationals, as a
result of acts committed contrary to international law.
Held:
The Court found that Belgium lack jus standi to exercise diplomatic
protection of shareholders in a Canadian company with respect to measures
taken against that company in Spain.
The breach, if any, was committed against the company, hence, only the
company could take action. Whenever a shareholders interests are harmed
by an act done to the company, it is to the latter that he has to look to
institute appropriate action.
As to who should have the right to protect the corporation, it is the State of
Nationality of the corporation, in this case, Canada.
Standard for the Protection of Aliens
Under the Roman Law:
1. Jus gentium applicable to both citizens and aliens
2. Jus civile applicable only to Roman citizens
In modern times
1. National treatment or Equality of treatment aliens are treated in the
same manner as nationals
o Bright side: aliens would enjoy the same benefits as local nationals
o Dark side: if the State is tyrannical and its municipal laws are harsh and
violative of human rights, then aliens would likewise be subject to such
laws
2. Minimum International Standard however harsh the municipal laws might
be, aliens should be protected by certain minimum standards of humane
protection

Held:
Treatment of an alien, in order to constitute an international
delinquency should amount to an outrage, bad faith, willful neglect of
duty, or to an insufficiency of governmental action so far short of
international standards that every reasonable and impartial man would
readily recognize its insufficiency.
Denial of Justice
Harvard Draft Convention on the Responsibility of States for Damages
o Art. 9. Denial of Justice exists when there is
a. Denial
b. Unwarranted delay or obstruction of access to courts
c. Gross deficiency in the administration of judicial or remedial process
d. Failure to provide those guarantees which are generally considered
indispensable to the proper administration of justice
e. Manifestly unjust judgment but error of a national court which does
not produce manifest injustice is not denial of justice
Enforcement Regimes

Who can resolve issues of violations of the rights of aliens when appealed to
by States in conflict?
1. International Court of Justice
2. Ad-hoc tribunals established for the purpose
a. US-Iran Claims Tribunal
b. UN Compensation Settlements
3. Lump-sum Settlements (Claims Settlement Agreements)
a. US-Cambodia
b. US-Vietnam

DOCTRINE OF STATE RESPONSIBILITY

When an injury has been inflicted, there is need to determine whether the
State can be held responsible for it
Internationally wrongful act committed when a State violates a customary
rule of international law or a treaty obligation
What needs to be understood?
1. Elements of an Internationally wrongful act
2. Attributability of the wrongful act to the State
3. Enforcement of the obligation that arises from the wrongful act
INTERNATIONALLY WRONGFUL ACT

& DSP

No State can escape this responsibility when once it has committed an act
which satisfies the requirements of an internationally wrongful act

Public International Law

Elements of Internationally wrongful act:


1. Subjective act must be attributable not to the persons or agencies who
performed it, but to the State itself

2.

P a g e | 19

Objective act constitutes a breach of an international obligation of


the State

What determines the wrongful character of the act is international law and
not internal law

ATTRIBUTION TO THE STATE


1. Acts of State Organs
a. Acts of any State organ whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds,
and whatever its character
o Organ includes any person or body which has that status in
accordance with the international law of the State
b. Conduct of an entity which is not an organ of the State but which is
empowered to exercise elements of governmental authority provided
the entity was acting in that capacity in the case in question
c. Conduct of an organ placed at the disposal of a State by another State
acting in the exercise of elements of governmental authority of the
State at whose disposal it had been placed
d. Conduct of a State organ or of an entity empowered to exercise
elements of governmental authority, such organ or entity having acted
in that capacity, exceeding its authority or contravening instructions
concerning its exercise
CAIRE CLAIM
Facts:
Caire, a French national, was killed in Mexico by Mexican soldiers after they
had demanded money from him.
Issue:
w/n Mexico is responsible for actions of individual military personnel acting
without orders or against the wishes of their commanding officers
Held:
Objective responsibility of the States responsibility for the acts of the
officials or organs of a State, which may devolve upon it even in the
absence of any fault on its own
It tends to impute to the State, in international affairs, the responsibility for
all the acts committed by its officials or organs which constitute offenses
from the point of view of the law of nations, whether the official or organ in
question has acted within or exceeded the limits of his competence.

This responsibility does not find its justification in general principles, those
regulating the judicial organization of the State. The act of an official is only
judicially established as an act of State if such an act lies within the officials
sphere of competence.
The act of an official operating beyond this competence is not an act of
State. It should not in principle, therefore, affect the responsibility of the
State.
In order to be able to admit this so-called objective responsibility of the
State for acts committed by its officials or organs outside their competence,
they must have acted at least to all appearances as competent officials or
organs, or they must have used powers or methods appropriate to their
official capacity.
Applying to the present case, the officers in question consistently conducted
themselves as officers in the brigade of the Villista general; in this capacity
they began exacting the remittance of certain sums of money and when
Caire refused, they finally shot him.
Under these circumstances, there remains no doubt that, even if they are to
be regarded as having acted outside their competence, the officers have
involved the responsibility of the State.
CORFU CHANNEL (previous case)
NICARAGUA v. US
Facts:
Nicaragua alleges that the mining of Nicaraguan ports or waters was carried
out by US military personnel. The President of US authorized a US
Government agency to lay mines in Nicaraguan ports, either in Nicaraguan
internal waters or in its territorial sea, by persons in the pay and acting of
the instructions of such agency. US did not issue any public and official
warning to international shipping of the existence and location of the mines;
and that personal and material injury was caused by the explosion of the
mines. The imputability to US of these attacks appear therefore to the Court
to be established.
Nicaragua complains also of infringement of its air space by US military
personnel. The Court finds that only violations of Nicaraguan air space
imputable to US on the basis of the high altitude reconnaissance flights and
low altitude flights causing sonic booms.
Nicaragua also alleges that US conceived, created and organized a
mercenary army, the contra force. The Court is not able to satisfy itself that
US created the contra force but holds it largely financed, trained, equipped,
armed and organized the FDN, one element of the force.

& DSP

Issue:

Public International Law

P a g e | 20

w/n the contras is equated as an organ of US or is acting on behalf of US

Held:
The Court considers that the evidence available to it is insufficient to
demonstrate the toal dependence of the contras on US aid. A partial
dependency may be inferred from the fact that the leaders were selected by
US. There is no clear evidence that US actually exercised such a degree of
control as to justify treating the contras as acting on its behalf.
2.

Held:
Even assuming that the hut tax was the effective cause of the native
rebellion, it was in itself a fiscal measure to which British Government was
perfectly entitled to exercise.
It is well established principle of international law 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.

Acts of other Persons


Conduct of a person or group of persons acting on the instructions of, or
under the direction or control of, that State in carrying out the conduct
b. Conduct of a person or group of persons exercising elements of the
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
a.

SHORT v. IRAN
Facts:
Claimant is an American national employed by an American Company in Iran.
3 days before the Islamic Revolutionary Government took office, claimant was
evacuated from Iran on company orders. The claimant sought compensation
for salary and other losses resulting from his alleged expulsion contrary to
international law.

US v. IRAN (previous case)


3.

Acts of Revolutionaries
Conduct of an insurrectional movement, which becomes the new
government of a State
b. Conduct of a movement, insurrectional or other, which succeeds in
establishing a new State in part of the territory of a pre-existing State or
in a territory under its administration
a.

Held:
Where a revolution leads to the establishment of a new government, the
State is held responsible for the acts of the overthrown government insofar as
the latter maintained control of the situation.

HOME MISSIONARY SOCIETY CLAIM (US v. BRITAIN)


Facts:
The collection of a tax newly imposed by Great Britain on the natives of
Sierra Leone known as the hut tax was the signal for a serious and
widespread revolt in the Ronietta district.

Claimant relies only on the acts committed by revolutionaries and is unable


to identify any agent of the revolutionary movements whose actions
compelled him to leave Iran. The acts of supporters of a revolution as
opposed to its agents cannot be attributed to the government.
Claimant relies on the declarations made by the leader of the Revolution.
While these statements are of anti-foreign and in particular anti-American
sentiments, these does not amount to an authorization to revolutionaries to
act in such a way that the Claimant should be forced to leave Iran.

In the course of rebellion, all US Missions were attacked, and either destroyed
or damaged, and some of the missionaries were murdered.
US contends that British Government is responsible for the revolt since it
wholly failed to take proper steps for the maintenance of order and the
protection of life and property, and that the loss of life and damage to
property is the result of such neglect.

PRELIMINARY OBJECTIONS

Issue:
w/n the revolt is attributable to the British Government
o
o

& DSP

Claim of denial of justice may be lost due to failure to answer some


preliminary objections
a. Lack of nationality link
b. Failure to exhaust national remedies
Purpose: to protect international courts from being swamped with cases
which are better handled locally
Application: cases founded on diplomatic protection or on injury to aliens

Public International Law

REPARATION
1. Obligation to make full reparation for the injury caused by the
internationally wrongful act
2. Injury consist of any damage, whether material or moral, arising in

3.

P a g e | 21

consequence of the internationally wrongful act


Responsible State may not rely on the provisions of its internal law as
justification for failure to comply with its obligation

CHORZOW FACTORY CASE (GERMANY v. POLAND)


Facts:
The action of Poland which the Court has judged is not an expropriation but
is a seizure of property which could not be expropriated even against
compensation.
Held:
If follows that the compensation due to German Government is not
necessarily limited to the value of the undertaking at the moment of
disposition, plus interest to the day of payment. Such a limitation might
result in placing Germany and the interests protected by Geneva
Convention, in a situation more unfavourable than that in which Germany
and these interests would have been if Poland had respected the said
Convention. Such a consequence would not only be unjust, but also and
above all incompatible with the aim of the Convention that is the prohibition
of the liquidation of property, rights and interests of German nationals and
of companies controlled by German nationals in Upper Silesia.
The essential principle contained in the actual notion of an illegal act is that
reparation must wipe out all the consequences of the illegal act and reestablish the situation would have exited if that act had not been
committed.
Restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear; the
award, if need be, of damages for loss sustained which would not be covered
by restitution in kind or payment in place of its such are the principles
which should serve to determine the amount of compensation due for an act
contrary to international law.

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 rejected in North American Dredging Company Claim due to the
right to seek redress is a sovereign prerogative of a State and a private
individual has no right to waive the States right

Expropriation can be internally wrong if it is done contrary to the principles


of international law
1962 UN General Assembly Resolution on the Sovereignty over Natural
Resources
o Expropriation shall be based on grounds or reasons of public utility,
security or the national inters which are recognized as overriding purely
individual or private interests, both domestic and foreign
o In such cases, the owner shall be paid appropriate compensation in
accordance with the rules in force in the State taking such measures in the
exercise of its sovereignty and in accordance with international law

CHAPTER 12
INTERNATIONAL HUMAN RIGHTS LAW
FROM ALIEN RIGHTS TO HUMAN RIGHTS

Early concern about human rights was about specific classes of people, e.g.
slaves, minorities, and certain nationalities
It was not until the birth of the United Nations that human rights of all
people became the subject of legislation
Human Rights those inalienable and fundamental rights which are
essential for life as human beings
3 generations of human rights:
1. Traditional civil and fundamental rights
2. Social and economic rights
3. Right to peace, clean environment, self-determination, common
heritage of mankind, development, minority rights

AN EMERGING INTERNATIONAL BILL OF HUMAN RIGHTS

CALVO CLAUSE REJECTED

EXPROPRIATION OF ALIEN PROPERTY

The UN became the cradle for the development of the new international law
on human rights
Key obligations assumed by the Organization and its Members:
1. Higher standards of living, full employment, and conditions for
economic and social progress and development
2. Solutions for international related problems
3. Universal respect for, and observance of, human rights
These, however, do not provide for the definitions of human rights

THE COVENANT ON CIVIL AND POLITICAL RIGHTS


The following are substantive rights:

& DSP

1. Life, Liberty and Property, and Equality


This, however, does not say when protected life begins, whereas the
Philippines protects the life of the unborn from conception
There is also no provision on the right to property

Public International Law

On the right to life, the Covenants Article 6(2) expresses a bias for the

P a g e | 22

abolition of the death penalty and allows its imposition, in countries


which still have death penalty, only after conviction for the most serious

crimes
In Article 14, it is more restrictive in the matter of publicity of criminal
proceedings where the interest of juvenile persons otherwise requires or
the proceedings concern matrimonial disputes or the guardianship of
children
2 provisions on Right to Compensation:
1. Anyone who has been a victim of unlawful arrest or detention
2. Any person who has been a victim of miscarriage of justice unless the
non-disclosure of the unknown fact in time is wholly or partly
attributable to him

Right to travel within the country, right to leave the country, right to return
to ones country, the right to change ones residence and the right of the
aliens not to be expelled without due process
Limitations:
a. Those provided for by law
b. Necessary to protect national security, public order, public health or
morals
The separation between the right to leave and right to return to ones
country is to make the limitation more narrow than for the right to leave
the country since exile is now prohibited by customary law and may even be
jus cogens

4. Legal Personality, Privacy and the Family


When does one become a person? The Covenant does not say.
Legal Personality
Capacity to Act
Whether citizens or aliens
May not be available to some by
reason, for instance, infancy, minority
or insanity

5. Thought, Conscience, Religion, Expression and Political Freedoms

This includes the explicit protection of the Right of Parents in the matter of
Religion for their children
Covenant prohibits propaganda for war

Covenant is silent about the right of government employees to form unions


which is explicit in our Constitution

This is one of the few rights which was already the subject of earlier
treaties (Treaty of Versailles and Polish-German Upper Silesia Treaty)
2-fold aspect for the concern for minorities:
1. Fear of a secessionist movement by minorities
2. Genuine concern for the human rights of minorities and the desire to
flourish
8. Self-determination of Peoples
This covers 2 important rights:
a. Right to freely determine their political status and freely to pursue
their economic, social and cultural development
b. Right for their own ends, to freely dispose of the natural wealth and
resources without prejudice to any obligation arising out of
international cooperation
Peoples include those ruled by colonial powers; those who form a
component part of a multi-national state
2 aspects of Self-Determination:
a. Internal this is the 2 important rights
b. External belongs to colonies and to those non-self governing and Trust
Territories

OPTIONAL PROTOCOL ON THE COVENANT ON CIVIL AND POLITICAL RIGHTS

This treaty is designed to enable private parties who are victims of human
rights violations
Complaints may be filed only against States who have ratified the Protocol

THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS


The rights specific to this are social welfare rights
a. Right to work
b. Right to favorable conditions of work
c. Right to form free trade unions
d. Right to social security and insurance
e. Right to special assistance for families
f. Right to adequate standard of living
g. Right to the highest standard of physical and mental health
h. Right to education including compulsory primary education
i. Right to the enjoyment of cultural and scientific benefits and
international contracts

& DSP

7. Minorities
This guarantees ethnic, religious or linguistic minorities

DUTY TO IMPLEMENT

6. Associations and Unions

Proscription on torture and other forms of ill-treatment that offend not only
against bodily integrity but also against personal dignity
Imprisonment in conditions seriously detrimental to a prisoners health
constitutes a violation of Articles 7 and 10(1) of the Covenant
3. Freedom of Movement

2. Torture, ill-treatment and Prison Conditions

The Philippines is a party to the UN Charter, UNDHR, the 2 Covenants, and


to the Optional Protocol to the Covenant on Civil and Political Rights
Treaty commitments become part of domestic law
Those which are not self-executing provisions must be attended to by the
necessary steps, in accordance with its constitutional processes and with
the provisions of present Covenants

Public International Law

Progress Realization State is obligated to undertake a program of activities

P a g e | 23

and to realize those rights which are recognized by the Economic Covenant

Other Conventions on Human Rights


a. Genocide Convention
b. Convention on the Elimination of All Forms of Racial Discrimination
c. Convention on the Elimination of All Forms of Discrimination Against
Women
d. Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment
e. Convention on the Rights of the Child
f. Convention on Migrant Workers

CHAPTER 13: PEACEFUL SETTLEMENT OF INTERNATIONAL


DISPUTES
What is international dispute?

A disagreement on a point of law of fact, a conflict of legal views or


interests between 2 persons
Must have practical effect on the relationship between the parties
Peaceful methods of settling disputes:

CUSTOMARY HUMAN RIGHTS LAW


Prohibition on Torture, Genocide, Slavery and Discrimination
INTERNATIONAL IMPLEMENTATION OF HUMAN RIGHTS LAW

Each country has the obligation to implement human rights law within its
jurisdiction properly done through municipal or regional courts
2 different procedures used by Human Rights Commission for responding to
violations of human rights:
a. Confidential consideration under ECOSOC Resolution 1503
o The confidential findings of the Sub-Commission are brought to the
attention of CHR
o The CHR is expected to submit its report and recommendation to the
ECOSOC
o Procedure is kept confidential, but findings invariably find their way
into media
b. Public debate procedure under ECOSOC Resolution 1235
o This carries 2 types of activities:
1. It holds annual public debates in which governments and NGOs are
given opportunity to identify specific situations which deserve
attention
2. It engages in studies and investigations of particular situations

Key provisions in UN Charter:


Art. 33: (disputes likely to endanger international peace and security)

Its jurisdiction is limited to most serious international crimes: Genocide,


Crimes against Humanity, War crimes, and the Crime of Aggression
Principle of Complementarity the court of last resort

Classifications of peaceful means of settlement:


A. Non-judicial
Negotiation:

If parties fail to settle disputes via Art. 33, they shall refer it to the SC.
If SC deems the dispute to likely endanger international peace and
security, it shall: (a) take action under Art. 36; or (b) recommend
appropriate terms of settlement.

Art. 38:

& DSP

SC may, at any stage recommend appropriate procedures or methods of


adjustment.
SC should take into consideration what has already been adopted by the
parties.
SC should consider that legal disputes should generally be referred by
the parties to the ICJ.

Art. 37:

Until the establishment of ICC, international crimes were prosecuted in ad


hoc criminal courts (Nuremberg and Tokyo Tribunals)
The goal of ICC is to demand individual and not collective accountability

Parties to any dispute shall first of all seek a solution by negotiation,


enquiry, mediation, conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements, or other peaceful means of their
choice.
When it deems necessary, the SC shall call upon the parties to settle
their disputes by such means.

Art. 36:

INTERNATIONAL CRIMINAL COURT

Art. 2, par. 3 of UN Charter: All members shall settle their international


disputes by peaceful means in such manner that international peace and
security, and justice are not endangered.
There is no obligation to settle disputes except in cases that might
endanger peace and security.
But if a decision is made to settle disputes, the obligation is to settle
them peacefully.

Public International Law

If all parties request, SC may make recommendations for pacific


settlement.

P a g e | 24

Preferred since States are hesitant to submit disputes to adjudicatory


bodies.
No set rules:

An agreement to negotiate may be formalized via treaty or


exchange of notes.
May be arms-length or face to face.
To be binding, parties MUST agree to it.

Arbitral decisions

Preliminary step is good offices when a neutral 3rd party tries to bring
2 disputants together, after which disputants look for a win-win solution
via a give-and-take process.

Mediation:

Involves assistance of 3rd parties (approved by bother parties) who


either act as bridge between parties who dont meet OR may sit with the
disputants to chair meetings, suggest solutions, etc.

Inquiry:
Fact-finding done by a designated group of individuals or institutions.
Resolves disputes based on questions of fact.

Conciliation:

A more formal technique whereby parties agree to refer controversies to


a 3rd party to make findings of fact and recommendations.
Generally, parties are not bound by the recommendations. Merely clears
the air.

B. Quasi-judicial
Arbitration

Binding settlement of a dispute on the basis of law by a non-permanent


body designated by the parties.
The compromis darbitrage is agreed upon by the parties and sets out:
(a) composition; (b) jurisdiction; (c) rules of procedure to be applied.

All members of the UN are ipso facto parties to the Statute of ICJ, but it
does not mean acceptance of the courts jurisdiction.
Only means that the State may accept its jurisdiction.
Only states may be parties in the court.
General principles:
a. States cannot be compelled to submit their disputes to international
adjudication unless they consent.
b. States may limit their acceptance to certain types of disputes and
attache various conditions and reservations.

Composition of the ICJ:


Art. 2:

& DSP

Domestic courts may refuse to give recognition to arbitral awards under


Convention on the Recognition and Enforcement of Foreign Arbitral
Awards:
a. agreement to arbitrate was not valid under applicable law
b. adverse party did not receive proper notice OR was not afforded
opportunity to present its case
c. award is outside the terms of agreement to arbitrate
d. the constitution of the tribunal OR the arbitral procedure was
contrary to the agreement or the law of the state where arbitration
took place
e. award has not yet become binding, has been set aside or suspended
by a competent court where it was made
f. under the law of the adverse party, the subject matter is not
capable of settlement by arbitration
g. under the law of the adverse party, recognition or enforcement
would be contrary to public policy

C. Judicial
ICJ

States cannot be required to submit to arbitration UNLESS there is a


previous agreement.
Different from judicial settlement since parties have a greater say in
deciding the law applied, composition of tribunal, process, etc.

3 types of arbitral agreement:


a. Arbitration clause incorporated in a treaty
b. Treaties solely to establish methods of arbitration (i.e. Hague
Convention for Pacific Settlement of Disputes)
c. Ad-hoc arbitral agreements (i.e. US-Iran claims)

Applies international law UNLESS parties specify that some other law
applies.
Arbitral decisions may be challenged if:
a. the arbitral body exceeds its powers
b. there was corruption on the part of a member of the body
c. failure to state reasons for the awards OR a serious departure from
fundamental rule of procedure
d. the undertaking to arbitrate OR the compromis is a nullity

Composed of a body of (a) independent judges, regardless of nationality,


(b) with high moral character, (c) who possess qualifications required by
their countries for appointment to the highest judicial offices OR are
jurisconsults of recognized competence in international law.
Art. 3:
15 members, no 2 of whom from the same State

Public International Law

If dual citizenship, nationality is based on where civil and political


rights are ordinarily exercised.

P a g e | 25

Art. 4:

The Court can form chambers, composed of 3 or more judges, for


dealing with particular categories of cases; or (b) particular cases, the
composition to be approved by the parties; or (c) at the request of the
parties.

Art. 26:
Chamber decisions are deemed Court decisions.
Art. 27:

Judges of the nationality of the parties shall retain their right to sit in
the case.
If a judge of the same nationality of a party is included in the Bench by
the Court, the other party may choose a person to sit as judge,
preferably among those nominated as candidates.
If the Bench does not include a judge of the same nationality as the
judges, the parties may choose a judge.
The President shall request the members of the Chamber to give place
as necessary.
Several parties of the same interest are deemed one party only.

Disputes are to be settled by IL and not DL.


Court acquires jurisdiction only upon referral by both parties.

3 ways to accept ICJs jurisdiction:


a. Ad-hoc basis (one party applies unilaterally to the Court and is
consented to by the other party)
b. Parties adhere to a treaty which accepts jurisdiction on matters of
interpretation or application of a treaty.
c. Optional system (Unilateral declaration of recognition in relation to
any other state accepting the same jurisdiction in all legal disputes)
Aerial Incidence Case (US. vs. Bulgaria, ICJ 1959)
1. Facts:

Jurisdiction of the ICJ:


1. Contentious
Art. 36:

All cases which parties refer to it and all matters specially provided for
in the UN Charter or in treaties and conventions in force.
Signatory states may at any time declare compulsory recognition in
relation to any other state accepting the same obligation, the
jurisdiction of the ICJ in all legal disputes concerning: [Optional system]
a. interpretation of a treaty
b. any question of international law
c. existence of any fact which, if established, would constitute a
breach of international obligation
d. nature or extent of the reparation for breach of international
obligation
Declarations of compulsory recognition may be made un/conditionally,
on condition of reciprocity of several or certain states, or for a certain
time.
Submitted to the Sec.Gen. of UN
Reciprocity enables a party to invoke a reservation to the compulsory
recognition which was not expressed in its own Declaration BUT was
expressed in the other partys.
In case of dispute as to Courts jurisdiction, it shall be settled by ICJ
decision.

I.

Nicaragua vs. US (ICJ, 1984)


Facts:

& DSP

Public International Law

Central American State or arising out of events in Central America...this


notice shall take place immediately and remain in force for 2 years.
The ICJ initially found that Nicaragua could rely on the 1946 declaration
since it was a state accepting the same obligation on the basis if its

US acceded to the optional clause, thereby accepting the compulsory


jurisdiction of the ICJ but subsequently made a reservation for
disputes with regard to matters which are essentially within the
domestic jurisdiction of the US, as determined by the US (Connally
amendment)
EL Al Israel airliner was driven off course by bad weather and innocently
passed through Bulgarian air space where it was shot down by Bulgarian
military planes, killing all passengers and crew, including 6 US nationals.
Investigators argue that Bulgarian military failed to adhere to
international civil aviation agreements involving appropriate
interception and identification of intruding aircraft.
The case was initially brought to the ICJ by Israel, where ICJ ruled that
it had no jurisdiction, stating that Bulgarias acceptance of the optional
clause in the Statute of PCIJ did not carry over to acceptance of the
optional clause of the ICJ.
US continued its claim based on violation of international law and
injuries to US nationals.
On grounds of reciprocity and consensual basis of ICJ jurisdiction,
Bulgaria contests ICJs jurisdiction. Bulgaria had invoked the Connelly
amendment exempting matters within its internal competence and
contended that its airspace security and anti-craft defenses were within
its domestic jurisdiction.
US withdrew its application, which the Court accepted as the end of the
dispute.

AI. Held:

In 1964, the US made a Optional Clause Declaration with a reservation


that it would remain in force for 5 years and thereafter until the
expiration of 6 months after notice was given to terminate.
The 1984 notification was deposited with the Sec.Gen. by the US, stating
that the 1946 declaration shall not apply to disputes with any
P a g e | 26

own declaration under the Statute of the PCIJ.


US contends that the 1984 notification should be given effect, thereby
taking away the courts jurisdiction over the case.

I.

In its 1946 declaration, the US included a proviso which required a 6


months notice prior to termination.
US contends that Nicaragua was not a state accepting the same
obligation since its own declaration was of undefined duration and thus
liable to immediate termination. Thus, Nicaragua could not rely the the
US time-limit proviso under the principle of reciprocity.
However, the Court found the same untenable, given that the time-limit
proviso was made by the US freely and by its own choice.
Furthermore, the notion of reciprocity is concerned with the scope and
substance of commitments (including reservations) and not with the
formal conditions of their creation, duration or extinction. Reciprocity
cannot be invoked to excuse departure from the terms of the States own
declaration.
Nicaragua can invoke the 6 months notice not on the basis of reciprocity
but because it is an undertaking which is an integral part of the
instrument that contains it.

Court found that Australias behavior cannot be assessed without first


entering into the question of why Indonesia could not lawfully have
concluded the 1989 treaty. The very subject matter would be a
determination whether, having regard to the circumstances in which
Indonesia entered and remained in East Timor, it could/not have
acquired power to enter into treaties on behalf of ET relating to
resources of its continental shelf. The court cannot make such
determination without the consent of Indonesia.

W/N the behavior of Australia breaches rights erga omnes (ETs right to
self determination), the Court cannot rule on the lawfulness of the
conduct of a State when its judgment would imply an evaluation of the
lawfulness of the conduct of another State which is not a party to the
case. Further, the nature of the obligation is different from the rule of
consent to jurisdiction.
Finally, the court ruled that it cannot be inferred from the sole fact that
a number of resolutions of the GA and the SC refer to Portugal as
the administering Power of ET that they intended to establish an
obligation on 3rd states to treat exclusively with Portugal as regards the
continental shelf of ET.

Case concerning East Timor (Portugal vs. Australia, ICJ 1995)


Facts:

II. Held:

Portugal initiated proceedings against Australia for the latters failure to


observe the obligation to respect the duties and powers of Portugal as
the administering power of East Timor and the right of the people of
ET to self determination and related rights pertaining to the Treaty of
1989 for the creation of a zone of cooperation in the area between East
Timor and Northern Australia.
As basis for jurisdiction, it referred to the declarations of both states
under the optional system.
Australia contends that the real dispute is between Portugal and
Indonesia and that the latter has not signed the optional clause.
The Court ruled that w/n Portugal has rightly formulated complaints
against Australia, the fact that the latter denied the same created a
legal dispute.
Australia contends that the effect of Portugals application would require
the Court to determine the rights and obligations of Indonesia to settle
the validity of the treaty between Australia and Indonesia.
Portugal insists that the dispute is exclusively based on the objective
conduct of Australia when the latter negotiated, concluded and initiated
performance of its treaty with Indonesia.

Provisional Measures
Art. 41:

I.

Written proceedings shall first be addressed to the question of


jurisdiction of the Court.

Case concerning legality of use of force (Yugoslavia vs. US, ICJ, 1999)

I.

ICJ has the power to indicate any provisional measures which ought to
be taken to preserve the respective rights of either party
Pending final decision, notice of the measures suggested shall be given
to the parties and the SC.

Nicaragua vs. US
Facts:

Public International Law

& DSP

f.

Court finds it necessary to indicate provisional measures under Art. 41 to


preserve the rights claimed. Such decision in no way prejudges the
question of jurisdiction to deal with the merits of the case.
Such measures include:
a. US should cease and refrain from any action restricting, blocking or
endangering access from or to Nicaraguan ports, and in particular,
laying mines.
b. The right to sovereignty and political independence of Nicaragua.
States should refrain from using force or threat of force against its
territorial integrity or political independence. States should not
intervene in matter within the domestic jurisdiction of a State.
c. The governments of US and Nicaragua should ensure that no action
is made to aggravate or extend the dispute.
d. Both Governments should ensure that no action is taken which might
prejudice the rights of the other party in respect to the carrying out
of whatever decision the Court may render.
e. Until final judgment, the Court will keep matters covered by this
order continuously under review.
P a g e | 27

Facts:

By request of the Federal Republic of Yugoslavia against the NATO states


(Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain,
UK, US) in relation to the bombings carried out by NA 8:00 AM forces.

AI. Held:

Court recognizes that it can exercise jurisdiction only between states


parties to a dispute who not only have access to the Court but also have
accepted the jurisdiction of the Court, either in general form or for the
individual dispute concerned.
In requests for provisional measures, the Court need not, before
deciding w/n to indicate them, finally satisfy itself that it has
jurisdiction on the merits of the case, yet only if the provisions invoked
by the applicant appear, prima facie, to afford a basis on the the
jurisdiction of the Court might be established.
Yugoslavia claims ICJ jurisdiction based on Art. IX of the Genocide
Convention to which both parties are signatories.
US contends that it made a clear and unambiguous reservation that
with reference to Art. IX, specific consent of the US is required in each
case.
Further, (a) reservations in the Genocide Convention are generally
permitted; (b) the reservation is not contrary to its object and purpose;
(c) absence of Yugoslavias objection to the reservation means
acceptance.
US adds that there no legally sufficient basis between the charges
against the US and the supposed jurisdictional basis under the GC.
Court accepts US contentions and finds that it does not have jurisdiction
to entertain the dispute between Yugoslavia and the US alleged to fall
under the provisions of the GC, and that Article manifestly does not
constitute a basis of jurisdiction in the present case, even prima facie.
Even under Art. 38, par. 5 of the Rules of Court which allows the
jurisdiction of the Court to be founded upon the consent thereto yet to
be manifested or given by the other party, the fact that US has not
made such consent does not create a prima facie jurisdiction allowing
the Court to indicate any provisional measure.
There is a fundamental distinction between the question of acceptance
by a State of the Courts jurisdiction and the compatibility of particular
acts with international law.
W/N States accept jurisdiction, they remain responsible for acts
attributable to them that violate IL, including humanitarian law.
Disputes relating to the legality of such acts MUST be resolved by
peaceful means chosen by the parties.

Intervention
Art. 62:

If a State has an interest of a legal nature which may be affected by the


decision in the case, it may submit a request to the Court to be
permitted to intervene, which the Court shall decide at its discretion.

Art. 63:

Registrar shall inform all parties to a convention regarding cases which


relate to its construction.
Every state notified has the right to intervene, but the construction
given by the judgment shall be binding on the intervenor.

El Salvador vs. Honduras (Nicaraguan Intervention, ICJ 1992)


Facts:
Nicaragua filed an application to intervene based on Art. 62:
a. to protect the legal rights of the Republic of Nicaragua in the Gulf
of Fonseca and the adjacent maritime areas by all legal means
available
b. to inform the Court of its legal rights which are in issue in the
dispute
The Court points out that there must be a legal interest that may be
affected. Further, Rules of Court require a statement of the precise
object of intervention. Court finds that the subject of intervention is
proper.
El Salvador contends that for intervention to be proper, Nicaragua must
also show a valid like of jurisdiction between Nicaragua and the
Parties.
Nicaragua however bases jurisdiction only upon the ICJ Statute and
states that Art. 62 does not require a separate title of jurisdiction.
AI. Held:

I.

& DSP

Obligation to comply with decisions


Art. 59:

Public International Law

The Courts decisions binding power rests upon the agreement of both
parties to the case to confer jurisdiction upon the Court. Normally,
therefore, no other State may involve itself in the proceedings without
the consent of the original parties.
However, procedures for a 3rd state to intervened are provided in Art.
62 and 63 of the Courts Statute. The Courts competence in this matter is
not derived from the consent of the parties to the case, but the the
consent given by them, in becoming parties to the Courts statute. Thus,
the Court has competence to permit intervention (subject only to the
requirements of object and purpose) even if both parties oppose.
A state allowed to intervene does not become a party to the case. It is
not allowed to tack on a new case nor have its own claims adjudicated
by the Court.
It does not acquire the rights or become subject to the obligations,
which attach to the status of a party. It has the right to be heard by the
Chamber, but limited to the scope of its legal interests.
P a g e | 28

No binding force except as between the parties and in respect to that


particular case

Art. 60:

Final without appeal. In the event of dispute as to (a) meaning or (b)


scope of the judgment, the Court shall construe it upon request of any
party.

Art. 61:

Application for Revision of a judgment may be made only when based


upon newly discovered fact, which must be: (a) a decisive fact; (b) at
the time judgment was given, was unknown to the Court and to the
party; (c) such ignorance was not due to negligence.
The Court must first decide whether the fact is of such character as to
lay the case open to revision, and declaring the application admissible.
The Court may require previous compliance with the terms of judgment
before it admits proceedings in revision.
Application must be made within 6 months from discovery and within 10
years from date of judgment.

Art. 94 of UN Charter:

If any party fails to perform any obligation under ICJ judgment, the
other party may have recourse to the SC, which may make
recommendations OR decide upon measures to be taken to give to the
judgment.
Such enforcement measures are subject to veto powers of the
permanent members.
Winning state may make uses of alternative methods of enforcement,
such as economic or diplomatic pressure.

2.

Art. 66:
Registrar shall:
a. give notice of the request to all state entitled to appear before the
Court
b. via special and direct communication, notify any state entitled to
appear or international organization likely to furnish information on
the question, within a time limit fixed by the President, that the
Court will be prepared to receive written statements OR hear at a
public sitting oral statements relating to the question
If an entitled state fails to receive notification, it may express a desire
to submit a written statement or to be heard, and the court will decide.
Parties which presented shall be permitted to comment on statements
made by others.
CHAPTER 14
THE USE OF FORCE SHORT OF WAR

Use of Force
General Principle: International law recognizes the
a. Autonomy of individual states
b. Their right to freedom from coercion and to the integrity of their
territory
Art. 2(4) of 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.

Advisory
non-binding
non/acceptance depends on internal law of the institution

The above text does not use the word war because it is a technical term
which does not include some uses of force
o Hence, the prohibition is broader than the prohibition of war noting that
it applies to any other matter inconsistent with the Purposes of the
United Nations
Corfu Channel

Art. 96 UN Charter:

SC and GA may make requests for advisory opinion. GA may also


authorize other UN agencies to seek advisory opinion on legal questions
arising within the scope of their activities.

Art. 65:
Advisory jurisdiction in accordance with the UN Charter
On any legal matter at the request of any body authorized to do so.

Through written requests containing (a) the exact statement of the


question and (b) all documents likely to throw light upon the question.

Facts:
After a British warship had been struck by mines, Britain sent additional warships to sweep
the minefields within Albanian territory arguing the theory of intervention where its
objective was to secure the mines for possible fear that they should be taken away, and the
theory of self-help.
Held:
The Court cannot accept these lines of defense. It can only regard the alleged right of
intervention as the manifestation of policy of force which cannot find a place in
international law.
The Court is also unable to accept the theory of self help as between independent States,
the respect for territorial sovereignty is an essential foundation for international relations.

& DSP

The prohibition of the use of force is customary international law

Public International Law

P a g e | 29
Nicaragua v. US

Consent to such resolutions is one of the forms of expression of an opinio juris with regard
to the principle of non-use of force, regarded as a principle of customary international law,

independently of the provisions, especially those of an institutional kind, to which it is


subject on the treaty-law plane of the Charter

Nicaragua v. US
The general rule prohibiting force established in customary law allows for certain
exceptions. The exception of the right of individual or collective self-defense is also
established in customary law, which Art. 51 refers to an inherent right.

Threat of Force
Charter prohibits not just use of force but also the threat of force
Typical form of threat of force:
o A State is given an ultimatum, a time-limit, within which to accept the
demands made upon it and is told that, if it rejects the demands, war
will be declared on it or certain coercive measures will be taken
Examples of coercive measures:
a. Naval blockade
b. Bombardment
c. Occupation of a given territory

The Parties agree in holding that whether the response to an attack is lawful depends on
the observance of the criteria of necessity and the proportionality of the measures taken in
self-defense.
Whether self-defense be individual or collective, it can only be exercised in response to an
armed attack. The Court does not believe that the concept of armed attack includes
assistance to rebels. Furthermore, the Court finds that in customary international law, there
is no ruling permitting the exercise of collective self-defense in the absence of a request by
the State which is a victim of the alleged attack, this being additional to the requirement
that the State should have declared itself to have been attacked.

Is anticipatory self-defense allowed?


2 views:
1. States do not invoke the right because they are afraid that it might be
used against them too
2. Israel launched a preemptive strike against its Arab neighbors but the
UN did not condemn the act
In the case of the Gulf War against Iraq, the Allied forces came on invitation
of Kuwait which was under invasion
The right to use force to defend claimed territory was rejected in the
Falkland War

Legality of the Threat or Use of Nuclear Weapons


The Charter recognizes the inherent right of individual or collective self-defense if an
armed attack occurs. The entitlement to resort to self-defense is subject to the conditions
of necessity and proportionality.
A further lawful use of force is envisage whereby the Security Council may take military
enforcement measures in conformity of the Charter.
These apply to any use of force, regardless of the weapons employed.

Individual and Collective Self-Defense


Exception to the prohibition of the use of force

1.

Article 51
Measures taken by Members in the exercise of this right of self-defense shall be immediately
reported to the Security Council and shall not in any way affect the authority and the
responsibility of the Security Council to take at any time such action as it deems necessary
in order to maintain or restore international peace and security.

Traditionally Allowable Coercive Measures


Severance of Diplomatic Relations
o Reason: there is no obligation to maintain diplomatic relations
o Limitation: not be resorted unless truly necessary because it might
endanger peace
o Suspension involves withdrawal of diplomatic representation but
not of consular representation

2.
a.
b.
c.
3.

& DSP

4.

Embargo
o A lawful measure o
Consists of:
a. Seizure of vessels even in the high seas

Retorsion
o Any forms of counter-measures in response to an unfriendly act o
Includes:
Shutting of ports to vessels of an unfriendly State
Revocation of tariff concessions not guaranteed by treaty
Display of naval forces near the waters of an unfriendly State
Reprisal
o Any kind of forcible or coercive measures where by one State seeks
to exercise a deterrent effect or obtain redress or satisfaction,
directly or indirectly, for the consequences of illegal act of another
State which has refused to make amends for such illegal acts
o This must be preceded by an unsatisfied demand for reparation

Public International Law


b.

P a g e | 30
State keeps its own vessels for fear that it might find their way in foreign

territory
pacific embargo

c.

Seizure of import of drugs or of oil

collective embargo

5.

NATO, The UN and the Use of Force: Legal Aspects


Bruno Simma

Boycott
o A form of reprisal which consists of suspension of trade or business
relations with the nationals of an offending State

6.

Non-intercourse
o Suspension of all commercial intercourse with a State

7.

Pacific Blockade
o Naval operation carried out in time of peace whereby a State
prevents access to or exit from particular ports or portions of coast
of another State
o Purpose: compel a State to yield to demands by the blockading State

Certain points on Humanitarian Intervention


a. If the Security determines that massive violations of human rights occurring within a
country constitute a threat to the peace, and then calls for or authorizes an
enforcement action to put an end to these violations, a humanitarian intervention
by means of military is permissible
b. When humanitarian crises do not transcend borders and lead to armed attacks
against other States, recourse to Art. 51 is not available
Reasons for the majority legal opinion against the existence of a right of Humanitarian
Intervention:
1. UN Charter and the corpus of modern international law do not seem to specifically
incorporate such right
2. State practice provides only a handful of genuine cases of humanitarian intervention
3. Scope for abusing such a right argues strongly against its creation

Protection of Nationals Abroad

Right to defend nationals abroad is an aspect of the right to self-defense


since population is an essential element of Statehood
Examples of forcible rescue of nationals
a. Raid of Entebee in Uganda
b. US intrusion into Stanleyville to rescue American students

Whether we regard the NATO threat employed in the Kosovo crisis as an ersatz humanitarian
intervention, or as a threat of collective counter-measures involving armed force, any
attempt at legal justification will ultimately remain unsatisfactory

Under certain strict conditions, resort to armed force may gradually become
justified, even absent any authorization by the Security Council

Humanitarian Intervention
The prohibition in Art. 2(4) is now considered jus cogens

Ex Injuria Oritur Jus


Antonio Cassese

Prevailing opinion: intervention without the authorization of the Security


Council violates international law

Conditions:
1. Gross and egregious breaches of human rights involving loss of life of hundreds or
thousands of innocent people, and amounting to crimes against humanity
2. Such crimes against humanity result from anarchy in a sovereign State, proof is
necessary that the central authorities are utterly unable to put an end to those
crimes while at the same time refusing to call upon or to allow other States or
international organization to enter the territory to assist in terminating the crimes
3. Security Council is unable to take any coercive action to stop it because of
disagreement among the Permanent Members or because one or more of them
exercises its veto power
4. All peaceful avenues have been exhausted, notwithstanding which, no solution can
be agreed upon by the parties to the conflict
5. A group of States decides to try to halt the atrocities, with the support or at least
the non-opposition of the majority of Member State of UN
6. Armed force is exclusively used for the limited purpose of stopping the atrocities
and restoring respect for human rights
7. Use of force must be commensurate with and proportionate to the human rights
exigencies on the ground

Public International Law

& DSP

CHAPTER 15
THE LAW OF WAR
INTERNATIONAL HUMANITARIAN LAW

P a g e | 31

Previously known as Laws of War


a. Provides for instances when the use of armed force is justifiable jus ad
bellum
b. Regulates the conduct of armed conflict jus in bello

Early international law did not consider as illegal a war admittedly waged
for the purpose of gaining political or other advantages over another State
Art. 2(4) of 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.

CUSTOMARY and CONVENTIONAL LAW


What is embodied in Hague and Geneva Conventions are customary law o
Thus, non-parties are still covered
Commencement and Termination of Hostilities

The above provisions outlaws war

The paradox is that side by side with the prohibition of armed conflict is the
proliferation of laws of war
o 3 facts which explain the paradox:
a. Those who resort to the use of arms do not give up until they have
achieved victory
b. Humanitarian considerations dictate the need for rules which curtail
violence beyond what is necessary to achieve a States goal
c. There still remains in the hearts of the soldiery an acceptance of
chivalry as a value
On the assumption that wars can always occur, there arose the need to
formulate laws that can humanize the conduct of war

THE HAGUE LAW

In 1899, 26 Countries met at The Hague and promulgated Conventions and


Declaration which adopted the principles constituting the law of armed
conflict, Law of the Hague, governing land and naval warfare

Protocol I

GENEVA CONVENTIONS OF 1949

Under Hague Convention III, for an armed conflict to be considered a war,


the hostilities should be preceded by a declaration of war or an ultimatum
with a fixed limit
While the Constitution gives to the legislature the power to declare the
existence of a state of war and to enact all measures to support the war, the
actual power to make war is lodge in the executive
The commencement of hostilities result in the severance of all normal
relations, including treaties, except treaties of a humanitarian character
Nationals of a combatant State residing in enemy territory become subject
to restrictions which the enemy might impose subject to limitations found in
customary or treaty law
Merchant vessels found in enemy territory are given a period of grace to
depart
Laws of armed conflict remain in effect until the conflict is terminated, by
means of a
a. peace treaty
b. in the absence thereof, by declaration made by the combatant states that
hostilities have come to an end
Armistice an agreement to suspend hostilities, whether local or general,
does not end the conflict but only puts an end to the active fighting

Essence: persons not actively engaged in warfare should be treated


humanely
o Geneva Red Cross Conventions
a. Wounded and Sick in the Field
b. Wounded, Sick and Shipwrecked at Sea
c. Prisoners of War
d. Civilians

International armed conflict includes armed conflicts in which peoples are


fighting against
a. Colonial denomination
b. Alien occupation
c. Racist regimes

Those engaged in such conflict receive combatant status and are entitled to
combatant rights
o Instead being treated as ordinary criminals when captured, they are
treated as prisoners of war

METHODS OF WARFARE: JUS IN BELLO


Declaration of St. Petersburg:
o The only legitimate object which States should endeavor to accomplish
during war is to weaken the military forces of this enemy
o This object would be exceeded by the employment of arms which
uselessly aggravate the sufferings of disabled men, or render their death
inevitable
& DSP

Public International Law

The Hague Convention prohibits the employment of arms, projectiles or


material calculated to cause unnecessary suffering

P a g e | 32

There is a need to balance military necessity and humanitarian consideration

Legality of the Threat or Use of Nuclear Weapons (ICJ 1996)


Cardinal Principles constituting the Fabric of Humanitarian Law:
1. States must never make civilians the object of attack and must
consequently never use weapons that are incapable of distinguishing
between civilian and military targets
2. It is prohibited to cause unnecessary suffering to combatants

Common Article 3

INTERNATIONAL COMMISSION ON RED CROSS


Basic Rules Governing Armed Conflicts:
1. Soldiers Rules
a. Fight only enemy combatants and attack only military
objectives
b. Prisoners of war must be treated humanely and are bound to
give only information about their identity
c. Looting is prohibited. Respect others property.
2. Fundamental Rules of International Humanitarian Law Applicable to
Armed Conflicts
a. Persons hors de combat and those who do not take a direct part
in hostilities are entitled to respect for their lives and moral
and physical integrity
b. It is forbidden to kill or injure an enemy who surrenders or is
hors de combat
3. Non-International Armed Conflicts
a. Obligation to distinguish between combatants and civilians
b. Prohibition of attacks against the civilian population as such or
against individual citizens
c. Customary rule prohibiting the use of chemical weapons, bullets
which expand or flatten easily in the human body, poison as
means of warfare, and booby-traps
NEUTRALITY
To adopt an attitude of impartiality towards the belligerents

NON-INTERNATIONAL CONFLICTS
Civil wars or rebellion do not violate international law
International law on armed conflict does not apply to internal conflicts

& DSP

In case of armed conflict not of an international character, persons should


still be accorded a minimum humanitarian protection
Prohibited acts:
a. Violence like murder of all kinds, mutilation, cruel treatment and
torture
b. Taking of hostages
c. Outrages on human dignity
d. Passing of sentences and carrying out of executions without previous
judgment pronounced by a regular court
International Committee of the Red Cross an impartial humanitarian body

Protocol II

The first and only international agreement exclusively regulating the


conduct of parties in a non-international armed conflict
International armed conflict that which takes place in the territory of a
Contracting Party between its armed forces and dissident armed forces or
other organized armed groups which
Material Field of Application:
a. Armed dissidents must be under responsible command
b. They must exercise such control over a part of its territory as to enable
them to carry out sustained and concerted military operations and to
implement this Protocol

INTERNATIONAL TERRORISM

Such attitude must be recognized by belligerents and creates both rights and
duties in the neutral states
Neutrals must not engage in activities which interfere with the activities of
the belligerents

Outside help for governments experiencing rebellion is legitimate provided


requested by the government
Aid to rebels is contrary to international law

There is no crime terrorism in Philippines statute books but some acts are
considered terroristic and are independently punished by the RPC
Terrorism Act (British Law) 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 cause
Draft of an International Convention for the Suppression of the Financing of
Terrorism:
o Any person commits an offense of terrorism if he does an act intended to
cause:
a. Death or serious bodily injury to any person
b. Serious damage to a State or Government Facility with the intent to
cause extensive destruction
Attack on WTC on 9-11 was characterized as Crime against Humanity through
the atrocious character exhibited by the act: its magnitude, gravity,
targeting of civilians

Public International Law

The importance of this characterization is that it led to what seems to be


a development in the international law of self-defense

P a g e | 33

Self-defense legitimate response to an armed attack by a State

CHAPTER 16
INTERNATIONAL ENVIRONMENTAL LAW

ENVIRONMENTAL CONCERNS

Sec. 16, Art. 2 of the Constitution. The State shall protect and advance the
right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.

The protection of the environment is now also a concern of international law


a. Protection of the atmosphere, the sea, land, flora and fauna
b. Preservation of the cultural heritage of mankind

The protection of the environment is a vital part of contemporary human


rights doctrine, for it is a sine qua non for numerous human rights such as
the right to health, and the right to life itself

WHO HAVE ENVIRONMENTAL RIGHTS?


Persons capable of having rights
Minors pleading for intergenerational protection (Factoran case)

SUSTAINABLE DEVELOPMENT

A concept adopted by the World Commission on Environment and


Development
This 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

EMERGING PRINCIPLES
The following are only declarations, they do not have the force of law
1. Stockholm Declaration

2. Rio Declaration
Human beings are at the center of concerns for sustainable development
States have the sovereign right to exploit their own resources
In order to achieve sustainable development, environmental protection shall
constitute an integral part of the development process and cannot be
considered in isolation from it
The special situation and needs of developing countries shall be given
special priority
Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level
States shall develop national law regarding liability and compensation for
the victims of pollution and other environmental damage
States shall immediately notify other States of any natural disasters or other
emergencies that are likely to produce sudden harmful effects on the
environment of those States
Warfare is inherently destructive of sustainable development

Some Treaties
Vienna Convention for the Protection of the Ozone Layer the layer of
the atmospheric ozone above the planetary boundary layer
b.
UN Conference on Environment and Development stabilization of
greenhouse gas concentration in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system
c.
Kyoto Protocol protection of the atmosphere
d.
Convention on International Trade in Endangered Species of Wild Fauna
and Flora
e.
Convention on Biological Diversity
a.

Man has fundamental right to freedom, equality and adequate conditions of


life, in an environment of a quality that permits a life of dignity and wellbeing, and he bears a solemn responsibility to protect and improve the
environment for present and future generations
Natural resources of the earth, including the air, water, land, flora and fauna
and especially representative samples of natural ecosystems, must be
safeguarded
Man has a special responsibility to safeguard and wisely manage the heritage
of wildlife and its habitat
The struggle of the peoples of ill countries against pollution should be
supported
States shall take all possible steps to prevent pollution of the seas

a.
b.
c.
d.

Regional Treaties
Treaty of Rome
North American Agreement on Environmental Cooperation
Protocol on Environmental Protection to the Antarctic Treaty
Amazon Declaration

Public International Law

& DSP

CHAPTER 17
INTERNATIONAL ECONOMIC LAW
What is International Economic Law?

Resources should be made available to preserve and improve the


environment
Rational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve the
environment
International matters concerning the protection and improvement of the
environment should be handled in a cooperative spirit by all countries on an
equal footing
Man and his environment must be spared the effects of nuclear weapons and
all other means of mass destructions

In its broadest sense includes all international law and international


agreements governing economic transactions that cross state boundaries or

that otherwise have implications for


o Those involving the movement of
a. Goods
b. Funds
c. Persons
d. Intangibles

P a g e | 34

more than one state


e. Technology
f. Vessels
g. Aircraft

Characteristics:
1. It is part of public international law
o Treaties alone make this so
2. It is intertwined with municipal law
3. It requires multi-disciplinary thinking
4. Empirical research is very important for understanding its operation

Important Economic Institutions


Objectives of the Bretton Woods Conference of 1944:
1. To advance the reduction of tariffs and other trade barriers
2. To create a global framework designed to minimize economic conflicts
International Monetary Fund
o Function: to provide short-term financing to countries in balance of
payments difficulties

International Bank for Reconstruction and Development [World Bank] o


Provide long-term capital to support growth and development

International Trade Organization (ITO)


o Promote a liberal trading system by proscribing certain protectionist
trade rules

o ITO
General Agreement on Tariff and Trade (GATT)
World Trade Organization
(WTO)

WTO
o Oversees the operation of GATT and a new General Agreement on Trade
and Services

Key Principles of International Trade Law


1. Agreed Tariff Levels
o GATT contains specified tariff levels for each State o
However, these can be re-negotiated
2. Most Favored Nation Principle
o Embodies the principle of non-discrimination
o Any special treatment given to a product from one trading partner
must be available for like products originating from or destined for
other contracting partners
o Tariff concessions

3.

Principle of National Treatment


o Prohibits discrimination between domestic producers and foreign
producers
o Once foreign producers have paid the proper border charges, no
additional burdens may be imposed on foreign products
Principle of Tariffication
o Prohibits the use of quotas on imports or exports and the use of
licenses on importation or exportation
o Purpose: to prevent the imposition of non-tariff barriers
o Exception:

4.

GATT provides for a quantitative and temporary basis for balance of


payments or infant industry reasons in favor of developing states

Exceptions to Key Principles


General exceptions
a. Public morals
b. Public health
c. Currency protection
d. Products of prison labor
e. National treasures of historic, artistic or archaeological value
f. Protection of exhaustible natural resources
2.
Security exceptions
3.
Regional Trade exceptions
4.
Exceptions for developing nations [Tanada v. Angara]
1.

Dispute Resolution Body


Established by the WTO agreement
Consists of General Council of the WTO

Expanding Scope of International Economic Law

& DSP

Operates under the Understanding on Rules and Procedures Governing the


Settlement of Disputes 1994
a. Each State has a right to establish a Panel
b. It provided for a permanent Appellate Body consisting of persons with
recognized expertise in law

Uruguay Round of 1994 expanded the scope of the multilateral trade regime
It includes:
a. Intellectual property
b. Services
c. Sanitary and physiosanitary measures
d. Investment
e. Strengthening of the rules on subsidies, countervailing duties and atidumping
International Economic Law affects the sovereignty of States and their
capacity to give force to national policy objectives

Public International Law

P a g e | 35