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PUBLIC INTERNATIONAL

LAW
PROF. MERLIN M. MAGALLONA
Part I: Nature and Method of International
Law

political intolerance, and the pursuit of selfsufficiency o the part of sovereign States.
2. There must be a body of rules for human
conduct within that community.
An undeniable existence both of customary and
written laws is seen in International Law.

A. In General

3. There must be a common consent of that


community that these rules shall be enforced by
external power. Examples of this so-called
external power include:

Oppenheim, International Law, Vol. 1, pp. 423

a. Self-help and intervention on the part of other


States which sympathize with the wronged one.

Conception of the Law of Nations


Law of Nations or International Law is the body of
customary and treaty rules which are considered
legally binding by States in their intercourse with
each other.

b. Subject to certain conditions, war is the ultimate


instrument for defending violated legal rights vital
to the existence of States.

I. Concept and Nature of International Law

Universal International Law is such part of


International Law as is binding upon ALL States,
without exception. Particular International Law is
binding on 2 or a few States only while General
International Law are binding upon a great many
States, including the leading States.
Denial of the Legal Force of the Law of Nations
Austin and his followers defined law as a body of
rules for human conduct set and enforced by a
sovereign political authority. Following this
definition, International Law cannot be considered
law because there is not a sovereign political
authority above the sovereign States which could
enforce such rules.
A better understanding would be achieved if we
recognize that rules of law must be enforced by
external power. It should however be understood
that for the existence of law, neither a law-giving
authority nor courts of justice are essential. It is
the community itself, which decides a question of
law. The existence of legislature is only
necessitated by the expansion of primitive
communities. In more modern States, the
legislature makes law, which courts of justice
administer. However, this power still comes from
the common consent of the community.
What, then, are the essential conditions of Law?
Are these present in International Law?

c. The Charter provides for a system of sanctions


for repressing the violation of its principal
obligation.
Practice and the Legal Nature of the Law of
Nations
States are of the opinion that they are legally and
morally bound by the Law of Nations. They do not
deny that there is a law between themselves. The
States, in breaking the Law of Nations, never deny
its existence, but recognize its existence through
the endeavor to interpret the law of Nations as
justifying their conduct.
Common Consent as the Basis of International Law
Common consent only mean the express or tacit
consent of such an overwhelming majority of the
members that those who dissent are of no
importance as compared with the community
viewed as an entity in contradistinction to the wills
of its single members.
In International Law, common consent manifested
through customs, then mutual usage of certain
rules, and finally to the development of a
systematized body of rules which commended
themselves so much to the needs and wants of the
time that they became the basis of the
subsequent development (Hugo Grotius work, De
Jure Belli ac Pacis, librii iii).

1. There must be a community.


A community is a body of a number of individuals
more or less bound together through such
common interests as create a constant and
manifold intercourse between single individuals.

Even if it is not necessary to prove for every single


rule of International Law that every single member
of the international community has consented to
it, still, no State can declare that it will in future no
longer submit to a certain recognized rule of the
Law of Law of Nations. The body of this rules of
law can be altered by common consent only, not
by a unilateral declaration on the part of one state.

This power unifying factor, their common interests


(science, art, agriculture, industry, trade, etc),
create an international community vulnerable only
to occasional threats due to economic nationalism,

States as the Normal Subjects of the Law of


Nations
If International Law is based on common consent,
what then are the normal subjects of the Law of

Nations?
Primarily, International Law regulates the conduct
of States but we must not forget that the conduct
actually regulated is the conduct of human beings
acting as organs of the State. Individuals and other
persons may then be endowed directly with
international rights and duties and constitute them
to that extent, subjects of International Law.
Illustrations:
1. Jurisdiction of the Courts of Danzig
States may expressly grant to individuals direct
rights by treaty; such rights may validly exist and
be enforceable without having been previously
incorporated in municipal law.
2. Reparation for Injuries Suffered in the Service of
the United nations
Entities other than States may be subjects of
International Law. For the subjects of law in any
legal system are not necessarily identical in their
nature or in the extent of their rights, and their
nature depends upon the needs of the community.
NOTE: members of the international community are
equal to each other as subjects of International Law.
Brierly,
The
Basis
of
Obligation
in
International Law, pp. 9-18
Many accept the doctrine that consent may be a
basis of legal obligation. Sir John Salmond writes:
The law of nations is essentially a species of
conventional law- that it has its source in
international agreement- that it consists of the
rules which sovereign states have agreed to
observe in their dealings with each other.
However, what if a state refuses to consent to be
under the obligation of a previously entered into
treaty? Without its consent, is it still bound? If so,
does this challenge the validity of the doctrine that
consent may be a basis of legal obligation? What
are the ways by which a state comes under the
obligations of international law, aside from
expressly giving its consent to be bound by it?
1. A new state becomes subject to International
Law as a matter of course, without their consent
being either asked or given. This challenges the
consent theory because these States may
recognize International Laws obligatory force but
does not automatically mean that they have
consented to it.
2. Hegelian doctrine of self-limitation and Jellineks
theory of self-limitation assume that a state may
create law for itself both in internal and external
affairs. By this faculty, the state is able to subject
itself, when it thinks fit, to its own private law, to
recognize the personality of foreign states, and to
bind its own will by entering into the international
system.

3. States feel a sense of obligation, from the


feeling that a certain course of conduct is legally
incumbent upon itself, irrespective of its own
wishes or interests.
The author points out that the Court may derive
the law by which states will be bound from nonconsensual sources. Sometimes, there is a need to
find the relevant rule by a process of judicial
reasoning rather than relying on the consent of the
party litigant- States alone. In fact, Article 38 of
the Statute of the Permanent Court of International
Justice directs the Court to apply international
conventions, international custom, as evidence of
a general practice as accepted as law, the general
principles of law recognized by civilized nations
and on certain conditions, judicial decisions and
the teachings of the most highly qualified
publicists,
as
subsidiary
means
for
the
determination of rules of law.
Autograph question: who is the cutest person in
the block?

pp. 46-46
The State is an institution that claims the unique
characteristic of having the exclusive control of
the use of force. However, this feature is incapable
of being the explanation of the binding force of law
(as usually applied in international law). The
theory that law is binding because it is the word of
a sovereign
(usually applied to the law of the
state) is also insufficient to explain the binding
force of law, and is in fact a widely rejected theory.
Note: Author then proceeds to answer the
question: Does international law differ from the
law of the State?
1. Do they concern different subjects? Not really.
Primarily, International Law involves States while
the law of the State involves human beings. This
distinction is, however, artificial.
M. Saleilles presents a true system, which he calls
la theorie realiste.
Both the state and the individuals of whom it
consists are and remain equally real entities, we
may even say that they are equally real persons,
provided that we can keep the juridical sense of
that word uncontaminated by any of its nonjuridical associations.
There are 3 truths which support the system
presented by Saleilles:
1. that individuals who form an institution,
whether it be the state or any other institution, do
not disappear from the scene

2. an institution is a real and not a fictitious unity,


and by juridical personality the law recognizes, but
does not create, this unity

something imposed upon a social reality from


outside.

3. this unity which the institution has given to the


individuals does not embrace the whole
personality of each of them.

IL is a unit, an aggregate of legal norms in


interaction. It is a specific component of the intl
system which must not be confused with other
components of the system.

Conclusion: International Law and the law of the


state do not, in reality, involve different subjects.
The international juridical community has for its
unit of membership the state, but it is not true
that the unit is the state in abstraction from its
individual members; it is the state as expressing
their unity.

The unified system of contemporary IL


The traditional division of IL into law of peace &
law of war has been replaced by a new division of
contemporary IL into (1) the law of co-existence
governing diplomatic interstate relations and (2)
the law of cooperation governing pursuit of
common human interests (Friedmann).

2. Do they differ in the form of sanctions? Does


International Law provide for sanctions, in the first
place?
No marked difference in sanctions because
International Law, too, has sanctions. But there is
very little temptation to violate International Law,
because its yoke lies easily on the states and also
because to violate it habitually would invite
reprisals and would not be in the interest of any
state.

This transformation resulted in:


1. greater unity in the intl level, as
manifested in the ff. features of
contemporary IL:
no more difference in status of
States
no more division of IL into law of
peace & law of war
growing number of principles of jus
cogens contributing to unity; and
at the same time
2. greater diversity on a regional level

Conclusion:
The
real
difference
between
International Law and state law in respect of
enforcement lies not in any principle but in
organization.
1. State law interferes with the individuals
freedom of action that in the course of centuries
an organized system for the coercion of the
recalcitrant has been built up.
NA in International Law where the
sense of a common interest in the law
being enforced has been weak and
where the need for systematic
enforcement is less in proportion as
the temptation to violate the law is
weaker.
(hindi
extensive
ang
institutionalization)
2. International Law has less adequate legislative
and judicial machinery.
3. Power in the international sphere is still largely
unregulated by law.
(hmm, di ko lam bakit sinama tong pp. 46-56)
Tunkin,
International
Law
in
the
International System, 147 Recueil des Cours
78-84 (1975)
Is there a system of international law?
Tunkin says yes. He rejects the German doctrine
that a system of law requires the existence of a
supreme authority that creates the system. He
says this doctrine is completely divorced from
reality.
A system (IL) is a reality in itself. It is not

Universalism & Regionalism in the system of IL


There are two levels of IL: (1) universal and (2)
regional. Also, IL comprises of (1) General IL and
(2) Particular IL.
Difference bet GL and PL:
1.GL results from the co-ordination of the
wills of all or almost all States whereas PL
results from the co-ordination of two or
some States.
2.Norms of GL are created only by States
whereas norms of PL can be created by
other subjects of international law.
Similarities: They have the same legal
foundation the co-ordination of the wills of States
since even in GL there is no central legislative
authority both are considered as belonging to
corpus juris gentium.
What is the role of particular norms in international
law?
1. Particular norms solve particular problems
bec. general norms are not sufficient to
properly govern relations bet. individual
States
2. Particular norms provide for the proper
functioning of general norms. In most
instances, GL depends upon creation by
States concerned of particular norms
specifying rights & obligations based on
general intl law.
* see Art. 41 of the Vienna Convention
Brownlie, The Reality and Efficacy
International Law, 52 BYIL 1 (1981)

of

The reality of IL
The reality of IL cannot be denied on the excuse
that it is imperfect. The actual use by
governments of IL as part of the normal process of
decision-making only proves that IL is a reality.
IL confronts inescapable features of the political
landscape. [Like municipal law] Rules of IL are
essentially principles of self-limitation, addressing
the very agents who should apply the rules. They
are immanent and internal.
The efficacy of IL
Brownlie looks at the efficacy of IL vis--vis the
performance of national legal systems. Eccentrics
appear in IL just as much as individual criminals
exist in NLS. Compared to NLS, IL is not doing so
bad.
Why does IL appear to be ineffective?
1. IL depends upon the application of
standards within the natl legal & admin
systems. Thus, the inefficacy of IL is only a
consequence of the relative inefficacy of
domestic law in enforcing IL standards.
The
biggest
obstacle
to
treaty
administration is the inability of natl
administrations to cope with even minimal
burdens under their intl obligations.
2. There is constant inflation (exaggeration)
of
the
incidence
of
illegality
in
international
life.
People
fail
to
acknowledge that many cases of illegal
behavior on the part of States are really
only ultra vires acts of a public body or
minister. [It is not the States fault].
On Hart
Hart gives two specific qualities of the concept
of law:
1. existence of primary laws (concerning
human actions) & secondary
laws
(conferring powers to make and change
primary rules); and
2. existence of rules of recognition (provides
the system with a criteria for validity)
Brownlie criticizes Hart:
Hart puts misplaced emphasis on secondary rules
and the compulsory jurisdiction of courts &
legislature as normal marks of a legal system.
Secondary rules do not play that much of a
decisive role in maintaining the more basic forms
of legality in municipal systems. The operation of
secondary rules may break down (as in the case of
civil strife) without affecting the operation of the
primary rules to any great extent.
Thus, Hart is wrong in giving a low status to PIL
among other systems on the basis of the absence
of secondary rules.
POINT BEING: Whether, in a given situation, the
law is ultimately effective is a question of taste.

In other words, it is a matter of political and moral


evaluation.
When the law is seen to be ineffective, the
cause is not the law but the absence of
organization, political will, sufficient personnel or
funding, and so forth.
Law, whether national or international, is not a
source of alibis for politicians and administrators.
Higgins, Problems and Process: International
Law and How We Use It (1994), pp. 1-16
Intl law is not rules. It is a normative system
which makes possible that degree of order if
society is to maximize the common good.
Two Apparent points:
1. The role of law is to provide an operational
system for securing desired values
(security, freedom, etc)
2. Intl is no different from domestic law
What is Intl Law?
Intl Law is the entire decision-making process and
not just the reference to the trend of past
decisions which are termed rules. If it were rules,
then it would not be able to contribute to and cope
with a changing political world. Relying merely on
rules when the context to which they were
articulated has changed ensures that Intl Law will
not be able to contribute to todays problems and
it will be disobeyed for that reason.
Intl law is decision-making by authorized decisionmakers who are not simply finding the rule and
applying it. The determination of what is the
relevant rule is part of the decision-makers
functions. The judge does not find rules but makes
choices. When these authorized decision-makers
make decisions, what occurs is legal decisionmaking.
Policy considerations, different from rules, are an
integral part of the decision-making process called
Intl Law.
Policy
factors
are dealt with
systematically (properly considered and weighed)
and openly (open to public scrutiny and
discussion)
If law as rules requires the application of outdated
and inappropriate norms, law as a process
encourages interpretation and choice that is more
compatible with the values we seek and objectives
we seek to achieve.
In viewing Intl Law as a process, there are still
tools for authoritative decision-making on the
problem notwithstanding the absence of a precise
rule which must be applied. (by use of analogy, by
reference to context, by analysis of alternative
consequences)
Take Note: Law as a process does not entail a

rejection of that core of predictability that is


essential if law is to perform its functions in
society.
To whom does Intl Law apply?
states in their relationship with each other
intl organization
in
some
circumstances
directly
to
individuals (war crimes, rights, etc)
What is the basis of Intl Law?
1.
Some writers suggest that it is in the
natural order of things that certain matters
should be regarded in a compulsory manner.
An obligatory foundation to the basic precepts
of justice is to be found in natural law.
2.
Consent. Norms are binding because the
states consent that they should be. This view
is based on the concept of sovereignty that in
turn emphasizes their freedom to act
unilaterally save to the extent they agreed to
be constrained. Consent has gradually been
replaced by consensus
3.
Reciprocity: If consensus, often tacit and
unenthusiastic, is the basis of Intl Law, then
that consensus comes about because states
perceive a reciprocal advantage in cautioning
self-restraint.
Notes: Analyze IL as a process rather than a set of
rules. When the authorized persons or organs make
decisions, what occurs is a legal decision-making
process. IL is a continuing process of arriving at
authoritative decisions. This view rejects the notion of
law as merely the impartial application of rules.
B. Changing Structure and Dimension of
International Law
Magallona, The Concept of Jus Cogens in
the Vienna Convention on the Law of
Treaties,
in
International
Issues
in
Perspective (1996)
Jus Cogens (JC) are general norms of imperative
character which the subjects of law cannot modify
or set aside in their contractual relations;
constitute irreducible minimum principles in the
legal system; set above the wills of the parties to a
contract
Jus Dispositivum norms which can be derogated
by private contracts
The concept of JC is identified with the notion of
ordere public in municipal law which is the
aggregate of fundamental norms on public policy
and good morals which unify particular rules and
principles in the legal order.
It is argued that JC could not yet mature in the
field of Intl Law because this concept presupposes
the existence of an effective de jure order which is
envisaged in the model of the municipal legal
order.

The emergence of JC is defined by the condition


that in the international legal order, the subjects
(States) of the law are themselves the creators of
the law on the basis of legal equality.
The process of identifying a general norm as JC is
definitely a consensual mechanism. It is
determined by the very real and concrete interests
of States and therefore springs from the necessity
internal to the system of their inter-relationships.
Example of JC norms: Nuremberg Principles,
human rights, Sovereign equality of States, nonintervention , right of self-determination
Definition of JC under the Vienna Convention
(VC)
Art 53: A treaty is void if at the time of its
conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the
present convention, a peremptory norm of (1)
general intl law (2) is a norm accepted and
recognized by the intl 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 intl law having the
same character.
Art 64: If a peremptory norm of general intl law
emerges, any existing w/c is in conflict with that
norm becomes void and terminates.
1 and 2 in Art 53 are elements of JC which
projects the consensual nature of such norm.
However, the consensual nature should not lead to
the formalism that character of JC finds
explanation in mere expression of the States
consent. It is the particular nature of subject
matter with which it deals with that may give it JC
character.
JC is either customary or conventional rule. It is
also either universal or so recognized by a great
majority of States.
The words as a whole in Art 53 precludes the
possibility that an objection on any 1 State may
operate as a veto to the characterization of norm
as JC. Universal consent or unanimity is not
intended as a basis for the determination of JC
norm.
Function of Conventional Rules on JC
The specific function of JC norms is to limit the
freedom of the parties to a treaty in determining
the content of their agreement. Any treaty
provision that contravenes a JC is either declared
void under Art 53 or becomes void and terminates
under Art 64.
Under Art 45
the right to
terminating,
operation of

of the Convention, a State may lose


invoke a ground for invalidating,
withdrawing or suspending the
a treaty through confirmation or

acquiescence.
2.
However, Art 45 does not cover Art 53 and 64 w/c
points to the conclusion that the invalidity of a
treaty arising from the violation of JC norms cannot
be cured by confirmation or acquiescence of the
parties. This serves to reinforce the objective of
character of JC norms as criterion of Illegality and
to project their importance over the narrow
individual interests of the States.
Operation of Convention Rules on JC
A treaty in conflict with JC norm is invalid in Intl
Law but it can only be invalidated on that ground
w/in the framework of the VC.
Limitations: Invoked only by parties to the VC
Follow procedural requirement of VC
Procedure:
1. Written notification by contesting party to
other party stating grounds for invalidation,
termination, etc, measures proposed to be taken
and reasons therefor
2. Transmitted directly to the other party or
depositary
3. 3 months after receipt of notice, if no raised
objections, contesting party can effectuate the
invalidation/termination of treaty by a declaration
to that effect in an instrument communicated to
other parties
4. If objections were raised, settle dispute
through UN means (negotiation, mediation, other
peaceful means); resort to Intl Court of Justice in
case of failure to reach solution after 12 mos.
Non-retroactivity of Convention Rules on JC
Art 28: establishes non-retroactive operation of
treaties in general and provides for flexibility for
the parties to stipulate expressly the retroactive
effects of treaties
Treaties concluded after the entry into the force of
convention is which are in conflict with JC are void
under Art 53 or become void & terminate under
Art 64.
Treaties concluded before the Conventions entry
into force are saved from the operation of Art 53
even if they conflict with JC norm. But under Art
64, they are affected by the invalidating force of
the new JC norm when the norm is given binding
force as such by the entry into the force of the
Convention
The points of references for operation of Nonretroactivity rule:
Art 53: the date the Convention is enters into
force. Art 64: the time of emergence of the JC
norm.
2 categories of JC:
1. JC existing on the date of the VCs entry

into force
general norms becoming JC sometime
later after VC has come into force

Modification of JC
JC is not immutable. It is subject to change in
keeping with the societal developments of global
scale. But only a JC norm can supercede or
partially change an existing peremptory norm.
The process of modification follows the same
mechanism as its formation which is on the same
consensual basis as any other norm of general intl
law.
Conclusion
One of the most significant features of progressive
development in contemporary Intl law is that the
competence of States in treaty-making has ceased
to be unlimited. The introduction of JV in VC can
serve as transformative mechanism for discarding
out-moded rules in the old Intl Law and for
replacing them with progressive principles.
Notes:
PACTA SUNT SERVANDA: States or other international
persons are bound by treaties which have been
regularly concluded and have entered into force and
they must be carried out in good faith. The basis of the
obligatory character of conventional rules or what is
sometimes called sanctity of treaties is not clear.
Baxter, International Law on Her Infinite
Variety, 29 Intl & Comp. LQ 549 (1980)
As generally understood today: Principles of IL
have a real existence and create obligations for
states and individuals, even though they may not
be enforced by sanctions.
Baxters radical assertion to be defended: That
legal norms occupy a place in IL, even though they
do not create rights or duties.
A great majority of norms which are laid down in
international agreements are susceptible of
enforcement through mechanisms, including
resort to international tribunals and national
courts, which ensure respect for these obligations.
But there are norms of various degrees of
cogency, persuasiveness and consensus which are
incorporated in agreements between states, but
do not create rights and duties.
International Agreement refers not only to
treaties but used by Baxter in a wide sense as
comprehending all those norms of conduct which
states or persons acting on behalf of states have
subscribed to, without regard to their being
binding, or enforceable, or subject to an obligation
of performance in good faith.
I.

SOFT / WEAK Law recognized as


peculiar

e.g. treaties where states enter into an


allegiance, agree to coordinate military action,
declare neutrality of an area.
1.

Political Treaties There is an


awareness that these agreements are
vulnerable to the operation of rebus sic
stantibus in the sense of established
boundaries / status of territory. If a state
refuses to come to the aid of another, nothing
can force it to. The Vienna Convention does
not refer to Political Treaties because it
would add complexity and it would have
supplied a basis from escaping from treaty
obligations which is susceptible to abuse. But
these Political Treaties are nevertheless kept
alive by perceptions of mutual advantage and
by political and economic force (so long as the
states concerned see it to be in their natural
interest to concert their policies.)

2.

Other treaties regarding national


security the force making for compliance is
that violation of agreement may being the
whole structure tumbling down (agreements
where easy release is available).

Nuclear Test Ban Treaty (1963)


violation of the treaty, justify it in withdrawing
from the treaty. The right of denunciation is
the threat that holds the parties to their
obligation.

Geneva Protocol of 1925 for the


Prohibition of the Use in War of Asphyxiating
Poisonous or Other Gases, and of Biological
Methods of Warfare reserve the right to
employ chemical warfare against the one who
has violated, in effect brings the Protocol to an
end.

Numbers 1 and 2 do carry some measure of


obligation, although they may not be enforceable
in the strict legal sense.
The following types of norms in international
agreements have the common characteristic of
not
creating legal obligations
which are
susceptible of enforcement (soft law):
1.

2.

3.

Pacta de Contrabedo a provision of the


treaty which calls for negotiations looked to
the conclusion of further, more detailed
agreements. These provisions cannot be
enforced if the parties do not reach an
agreement (agreements cannot be forced
upon them, cannot be compelled to
negotiate), e.g Treaty of Rome established
European Economic Community
Norms of treaties which are non-self executing,
requiring further, more detailed treaties in
order to give effect to the principal treaty
Provisions which are Hortatory, calling for

cooperation by states to achieve certain


purposes. In the absence of institutional
machinery, a partys refusal to follow the
recommendations / exhortations of the treaty
cannot be met with any measures of
compulsion.

Executive Agreements
(difficult to fit in the existing structure) US,
after the Vietnam War, Congress found out
that the President made commitments which
were not submitted to the Senate for approval
(outcome was the enactment of legislation
which requires the Department of State to
transmit the test of any international
agreement (in writing), other than a treaty, to
Congress within 60days).

The
international
significance of the agreements which were
brought to enlighten is that there must be
a
vast
mass
of
agreements,
communications,
and
correspondence
between governments and its officials to
cooperate on some scientific work, to give
effect to a treaty, to exchange information,
etc.

Definition of treaty in
Vienna Convention is unclear on how far
international dealings should be codified
(result in immense masses of paper)

It is probably fair to say


that states
have no intention of
enforcing the forces that make for
compliance are manifold, but non-legal

These
arrangements
(executive agreements) are soft law
complied with in fact but not under the
coercion of the principle of pacta sunt
servanda

States do set up by
agreement, machinery of cooperation and
coordination which does not have the
complexity of international agreement (not
treaties but they soften the clash of
interests)

The soft laws have been


for about some time. But in recent years
states have undertaken the preparation of
instruments which deliberately do not
create legal obligations but which are
intended to create pressures and to
influence the conduct of states and to set
the development of IL in new courses
(legal impact unclear)

Treaties which purport to


lay down rules governing the behavior of

States towards their nationals / towards


aliens sometimes ambiguous and will do
nothing to control the conduct of states
unless fleshed out by the decrees of court
or other agencies.
Magallona, Towards the Consolidation and
Progressive Development of the Norms of
International Economic Law, in Magallona,
International Law Issues in Perspective
A.

2 major qualitative changes in the


historical development of the international
community of states:
a) Breakdown of medieval society
a. IL operated in a small circle of
Christian states in Western Europe
b. Peoples of Africa, Asia, and Latin
America were objects of colonial
exploitation
b) Emergence of independent states from the
breakdown of the colonial system together
with the rise of the socialist community

B.

C.

D.

Crisis between old and the establishment


of the new international economic order
a) Despite the collapse of the colonial
system, exploitation and dependency
continued between old colonial powers
and their former colonies.
b) Establishment of new economic order is
essential to the economic upliftment of the
developing countries.
Rationale and scope of international
economic law
a) IL law must now reflect the basic interests
and needs of the developing countries,
which constitute a majority of the
international community
b) Polarization of states on the basis of level
of development
c) IL deals with the public-international
aspect of one of the principal purposes of
the
UN:
to
achieve
international
cooperation
in
solving
international
problems of an economic character.
General content of international economic
law
a) principles and norms of international
economic
law
have
matured
and
constitute a stage in the progressive
development of:
a.
fundamental
principles and purposes of the UN
b.
specific orientation
of the general principles of law to the
economic relations of states with
different levels of development
c.
work of various
organs and agencies of the UN and of
international conferences

b) International Economic Law deals with the


regulation and coordination of economic
activities of states, particularly legal issues
relating to economic and technical
assistance.
Notes:
In theory, consent may be withdrawn as fast as it was
given but this results to instability of the legal order as
predicted by Brierly.
Why do States hesitate in withdrawing its consent?
Because in the first place, it gave its consent pursuant
to its desire to establish international rules that create
concrete relations to advance its concrete economic,
political, social, and financial interest as the subject
matter of the mutual exchange between states.
How do you know that a norm is a norm of
international law? Look at the norm-creating process.
2 categories of norms:
a. inter se: rules which govern the relations of
states among themselves
b. erga omnes: rules which govern the relations
of states in relation to the international
community
consensuality: element which controls norm-creating
process; when one speaks of consent, one pertains to
normative consent, a process is involved, it is not a
simple matter of saying yes
What are the legal bases of international personality?
1. the moment a state is conferred statehood, it
assumes international personality, primary
subject of law.
2. could also be created by state like the ILO
3. conduct between the states may become the
basis of personality, for example when the
action of the state becomes opposable to itself
as in recognizing passports and envoys, that
state cannot anymore deny recognition
The Principle of Attribution: for a stet to be
internationally responsible given the breach, the acts
or omission must be attributable to the state, not its
peoples.
Persistent Objection Rule: if a state persists in
opposing the application of a general norm to itself, at
the time when the norm was merely in the process of
formation, then even when that norm consolidates or
becomes binding law at later time, that state which
persisted in objecting is not bound. But if persistent
objection is only manifested the time when that norm
has already become binding law, then no amount of
objection will make it not bound.

II. International Law and the International


Community

H. Mosler, International Society as a Legal


Community, 140 Recueil des Cours 1 (1974)
1. CONDITIONS OF EXISTENCE OF AN INTL
LEGAL ORDER
International Law (IL) existed only when the 2
necessary elements existed: 1) factual-a certain
number of independent societies organized on a
territorial basis exist side by side, and 2)
psychological-a general conviction that all these
units are partners mutually bound by reciprocal,
generally
applicable
rules
granting
rights,
imposing
obligations
and
distributing
competencies. In the first element, there exists an
age-old tension between equality in law and
difference in actual power.
There is a continuing influence of European
tradition on current IL, emphasized by Mosler on 2
points: 1) the logical deduction from the nature of
things and the nature of IL still contributes to
current IL (e.g. by author) and 2) appreciation of
the expansion of IL in todays enlarged intl
society, w/c is no longer focused on Europe. This
point partly explains the acceptance of the new
members of the intl society of a large part of intl
law originating in Europe even without European
tradition. The extent of internal and external
sovereignty has been diminished by the
interdependence
of
the
states
(relative
sovereignty) and the general tendency of
centralization (because of the foundation of world
organizations). Note that todays IL takes into
account the formerly unknown existence of
international
organizations
(IO)
and
the
resurrection of the individual as a part of the intl
legal order (ILO).
2.
CHARACTERISTICS AND STRUCTURE
OF THE INTL SOCIETY
a) historical perspective
The predominant feature of the States existing
between the end of 18th Century and WW1, was
that it was a political unit of effective action,
consisting of a people conscious (derived from
either history, ethnic and linguistic unity etc) of
being a nation. This group of nation-States was a
closed community with a limited number of
members. Although each was sovereign, such
sovereignty has 2 meanings 1) political- acting
according to ones own will to the greatest
possible extent and 2) law- there is no legal
obligation on the State to show obedience to any
superior. Since a legal community of equals in law
and unequals in fact cant function without
political guidance, it is but natural that the task of
directing political devt in the framework of society
was assumed by the most powerful states. Since
no single power was able to gain an overwhelming
advantage, the result was the establishment and
maintenance of certain balance of power between
the great powers (see e.g by author). This led to a
combination for the 1st time of a balance of on a

higher greater power level , and the political


domination exercised by the great powers (that, as
a group, dealt with matters of general interest) on
smaller States within their sphere of influence. The
lower-level balance of power between medium and
small sized states (that participated in matters of
their own interest) was established on the
assumption that these groups belonged in a
sphere of influence of one or more (gasp! D.G. is
that you?) hegemonic powers. This practice
provided at a time which the theory of absolute
sovereignty prevented the rise of IO the
organizational element apparently indispensable
to society with members equal in law but not in
fact. This lesson in history (that a society
consisting of immensely different sovereign states
must pay a price for its continuing existence by
allowing major partners a greater influence in the
form of a hegemonic role) is still valid now. If
historical devt leads to this, then the equivalent of
an internal constl law arises.
b) in its present state of development
The new ILO began around the time of WWs 1 and
2. Such experience of a world-scale destruction led
to an the attempt to overcome, by means of
international organization, the anarchy caused by
the unlimited exercise of sovereignty. This was
followed by an increase in the number of members
of intl society which also resulted in the addition
of essential new characteristics: the
institutionalized cooperation in IO, increasing
interdependence in communications, economic
and technical matters, the position of a few
superpowers challenged by the non-aligned states
and the reappearance of the individual and of
human values in intl law.
3.
LEGAL
RELATIONS
BETWEEN
SOVEREIGN STATES
AND THE INTERNATIONAL
COMMUNITY
In the present, a horizontal legal relationship
existed between states. The only sanction for a
breach of these rules was the reaction of the
states injured by the act of another. In contrast,
the so-called classical period, the states formed a
legal community without any vertical element of
subordination.
4.
CONSTITUTIONAL ELEMENTS IN THE
INTERNATIONAL COMMUNITY
In spite of the lack of a general constitution for the
functioning of the intl community there are many
constl elements of varying form and importance.
Statues of IO have the essential features of a const
but it its object is limited vis-a-vis internal const..
These statutes taken as a whole amount to a
considerable element of constl life in the intl
community. IL developed through the consensus of
members of the intl society. Since the principle of
consensus is inherent in any kind of legal
community, there must be a legal rule as to how
the law is created and develops. This task is done
by a compeytent organ of the memebers

themselves develop the rules and principles they


are to be bound. It is this basic principle which
makes the international society a legal community.
5.
INTERNATIONAL PUBLIC ORDER AND
JUS COGENS
In any legal community, there must be a minimum
of uniformity to maintain the community. This
uniformity may relate to legal values, legal
principles or legal rules. The whole of this
minimum can be called the common public order.
The intl community cant dispense (or exist) with
this minimum of principles and rules. The public
order of the the intl community consists of
principles and rules of enforcement of which is of
vital importance to the international community as
a whole that any unilateral action or any
agreement which contravenes these principles
have no legal force.
The concept of a public order of the intl
community has a wider meaning than jus cogens.
The rules belonging to it apply not only to the
members of the intl community acting as
contracting parties but are also binding in relevant
legal situations other than treaty relations.
6.
GUIDING PRINCIPLES IN THE FORMATION
OF THE POLITICAL ORDER IN INTERNATIONAL
SOCIETY
The statement that principles and rules have
emerged as generally accepted IL is the work of
codification and interpretation; to define new
principles and rules appropriate to the to new
situations is the work of law creating. This 2 nd task
is a matter of policy, as something new is to be
created and a step forward is attempted.
1.

political doctrines and maxims


Balance of influence among superpowers
Right to self-determination
Political doctrine based on political
geographical
innovations-Doctrine
legitimacy/Doctrine of intervention

or
of

2.principles of friendly relations and co-operation


between states
This is the most interesting achievement of the UN
is the 7 principles of the declaration on principles
of IL concerning friendly relations and cooperation
among states as guidelines for the conduct of
states (see p41 of the article). These principles are
declared to be interrelated so that each principle
shall be construed in the context of others.
Reference to the legal effect attributed by the UN
Gen. Ass to the principles individually and
collectively is made in the final part of the
resolution. Each principle is developed by detailed
definitions w/c are in part contradictory, thus
revealing that they are the result of a compromise
of opposing views. Certain principles are nothing
more than abbreviations of existing principles
taken up the UN Charter. These and other
questions have divided the principal Western and

socialist states, the latter joined by the nonaligned states. The principles w/c were finally
accepted have the unanimous support of the UN
membership. This support is not weakened by the
fact it is the result of a compromise.
Bedjaoui, General Introduction, International
Law: Achievements and Prospects (1991)
1. International Law: A specific, unfinished and
changing construct
Fundamental characteristic of IL-functions to
regulate the relns bet. States or between those
known to be sovereign and which, in principle,
assert their full independence of any legal order.
This is possible because IL is largely based on
(express or implied) consent. Thus, IL is more of
law of coordination than subordination.
Such
coordination took on a significant lease of life
when it finally became institutionalized, which is
opposite of exclusive and unfettered State control.
This was accompanied by another step which
transformed this coordination into cooperation bet.
States through the emergence of international
organizations (IO), resulting in qualitative changes.
Later, the universal mission of these IOs and the
promotion of the right of peoples to selfdetermination became the primary source and
better organized intl community in which the
traditional unshared competencies of the States
were disciplined. This led to the emergence of new
subjects of IL (individual, people, the human race)
w/c figured as potential rivals to the State in the
intl order.
In sum, IL today is developing because of its
extension to new areas. These changes in intl
relns (IR) came about in intl society after the
upheavals of 2 world wars and decolonization
affected classical IL. Throughout history, IL faced 3
periods of challenge: 1) Geographical 2)
Ideological and 3) Economic.
2. From an Oligarchic law to a Law of community
Before the League of Nations came into existence,
IL was nothing other than a European law, born of
the marriage of a regional situation and a material
power, and transposed, as the dominant law
governing the entire range of IR. This classical IL
was a system of norms having a geographical
content (European-based), an ethical and religious
inspiration (Christian law), an economic motivation
(mercantilist)
and
political
objectives
(imperialistic). This IL worked on 2 distinct planes:
1) between civilized States and the rest of the
world and 2) between the civilized States to the
extent that each one of them enjoyed sovereignty
and independence on a basis of full reciprocity.
The Treaty of Westphalia (1648) replaced the
turbulent co-existence of Christian countries to a
European system of states w/c rested on a need
for every European state to respect the status of
the others.
However, classical IL placed
uncivilized (meaning non-Christian) outside the
scope of its protection. Its function was to be a law

10

of domination by exclusion of the intl


community, thus didnt acknowledge other States
as equals.
But this order, having been shaken by a number of
shockwaves was progressively replaced by a law
of intl community: 1) the advent of a large
number of new States made quantitative and
qualitative changes in the intl community which is
now open; the process of selection had been
replaced today by automatic or semi-automatic
acceptance to IOs; 2) the new intl legal order is
responsible for the task of accommodating the
devt of all peoples and of promoting intl
economic cooperation; and 3) the increased role of
IOs led to the States acceptance of an
institutionalized cooperation among themselves at
price of relinquishment of sovereignty. But this
democratization has only begun to win through
and a great deal remains to be done in a world in
which the economy plays an increasing role in
perpetrating situations of domination.
3. From a Law of states to a Law for people
Fundamentally, IL remains a law w/c disciplines
the jurisdiction of States in relns bet. them. But it
is also clear that it has begun to take an interest in
the States conduct towards individuals. The active
principle of this evolution was undeniably the right
of peoples to self-determination. It was gradually
discovered that the State is, in the final analysis,
no more than a community of peoples. This
discovery restores to IL its essential finality w/c is
the service of human beings. The State is not
alone in leading towards this goal: the intl
community also plays its part since the human
individual is the supreme common heritage of
mankind.
4. From a Law of coordination to a Law of
finalities.
The democratization of the intl legal order, an
objective in itself, would be purposeless if it did
not provide a means of putting the intl legal order
at the service of goals w/c address the needs of
the human race. This involves the assessment of
the priorities w/c the intl community should set
itself. Many of the finalities (ex. outlaw war or
guarantee a certain minimum in the conduct of
hostilities) w/c are proper to a juridical order of
coordination and have been pursued for centuries
as being of unquestionable validity will not be
abandoned. The preservation of these values cant
be called into question under the pretext that it
has been promoted since the remotest antiquity.
But the principal areas of confrontation are, of
course, those involving new finalities set by the
present international community. By asserting the
common
good
and
by
challenging
the
perpetuation of the logic of political, economic and
military domination, the majority of States have
set in train a process in which the emphasis is
placed on whatever may be expected to contribute
to the reducing the de facto inequalities between

States and to promote greater heed for the long


term interests of the globe. IL has been invested
with a task of transforming international society
and has been applied in the service o finalities
such as peace, devt, human happiness and the
ecological preservation of the planet.
O. Schacter, The UN legal order: An
Overview in CC Joyner (ed.) The United
Nations and International Law (1997)
Structure of the UN Legal Order
Ground floor: actions of states- including the demands
and goals of the governments and other organized
groups in furtherance pf their needs, wishes, and
expectations
2nd level: activities of a legal character- the formation
and invoking of legal norms, and their application to
particular situations.
3rd level: broad policy goals, aspirations, and ideals
that influence governments and the other actors
Law-making in the UN System
Neither the United Nations nor any of its
specialized agencies was conceived as a
legislative
body.
They
were
limited
to
recommendations aimed at coordinating the
actions of their member states. The authority to
impose mandatory rules was limited to the internal
administration of the organization in question.
However, most of these bodies have utilized their
recommendatory authority to achieve binding law
where that served their aims and had the requisite
political support.
Examples of Instrument of law-making in the UN
system:
1. multilateral norm-creating treaty
products of political process, usually
marked by conflicting interests and
concerns over grants of power
all member states have a right to
participate in the negotiation and
adoption process on the basis of
sovereign equality
2. resolutions that embody declarations of
principles and rules of international law considered
as authoritative evidence of binding international
law on the following grounds: (a response to felt
needs which must be addressed without the
complicated and often, slow procedures involved
in treaty making)
a. as authentic interpretations of the UN charter
agreed by all the parties
b. as affirmations of recognized customary law
c. as expressions of general principles of law
accepted by states

11

3. law governing the internal governance of the


international bodies
includes the rules of procedure
governing the conduct of principal
organs and the rights of members in
those organs
4. regulations applicable to the military forces
engaged in peace keeping or enforcement
activities: include rules of engagement, precepts
of command and control, privileges and
immunities
Interpreting and applying law
Arguments in the UN organs on interpretation fall
into 2 categories:
1. lays stress on the aims and ideals of the
institution as expressed in the Charter
2. argues on the basis of practice and precedent
UN interpretation does not usually have an
adjudicative character. Primarily, it is to prepare a
plan of action or to recommend state behavior to
achieve a goal. Interpretation is implicit in the
measures adopted, which are centered largely on
the relation between means and ends in the
specific contexts.
Controversies in interpretation are not the result of
defective drafting or even of political compromise;
it is, rather, a reflection of the plurality of values
and aims in the international society. How then are
these controversies resolved?PRINCIPLES OF INTERPRETATION
1. principle of effectiveness: priority to achieving
the major purposes of the Organization overriding
restrictive provisions of the Charter such that
interpretations that are generally acceptable
settle the issue
2. Interpretation by majority votes based on
political considerations: problematic for many
states who fear that the integrity of the Charter
may be impaired by political tendencies
fear leads to the revived interest in the
possibility of utilizing the International
Court to render advisory opinions on
the interpretation of the Charter by
political organs
o problematic because the IC
has not been given review or
appellate power to pass on
decisions
of
the
political
organs unless it is asked for an
advisory opinion by the organ
Compliance and enforcement
For a long time compliance and enforcement were
on the margins of UN concern. However, public
sentiment and the lengthening list of economic

and social ills brought pressures on international


bodies to give more than lip service to the
principles they had adopted and urged on the
states.
Categories of the Various Compliance
Enforcement Processes Used by UN Organs:

and

1. reporting and supervision procedures in


a
particular treaty or code of conduct
supervision includes the procedure for
individual or governmental complaints
of violations such as those brought
under the optional protocols to the
covenants
includes
fact-finding
by
an
international authority
2. Facilitative measures taken by the United
Nations to assist states in carrying out obligations
imposed by law or by specific decisions of the
organs
-

armed peacekeeping forces to assist


governments
to
comply
with
transborder truce and cease-fire
agreements, use of observers for
national elections

3. Direct penalty of expulsion from the


Organization or from taking part in some of the
latters activities
4. Nonmilitary enforcement action taken by the
Security Council under Article of Chapter 7 of the
Charter (imposing economic embargoes extending
to trade and financial relations on either a
comprehensive or selective basis)
5. Use of armed force
6. Judicial enforcement limited in respect of
binding adjudication of cases in which the parties
have accepted the Courts jurisdiction
7. Self-help measures
a. reprisals: generally permitted if they do not
involve the use of force and if they are directed to
obtaining redress for the wrong committed and
must not be disproportionate to the violations to
which they respond.
b. retorsion: legal WON responsive to a prior illegal
act. States are free to reduce trade, investment, or
aid with another state, whether or not the other
state acted illegally.
8. Public opinion (NGOs and civil society)
Patterns and Politics of UN Law
Two areas stand out: human rights law and the law
relating to peace and security.

12

In human rights law, it has been observed that the


economic
criteria
originally
applied
to
development have been supplemented with
criteria of human development that incorporate
many of the basic human rights, especially but not
only those of an economic, social, and cultural
character.
In the law of peace and security, the stakes are
the highest. WON a United Nations Legal Order
exists will be determined largely by the
effectiveness of its efforts to maintain peace and
security. Several concepts have to be discussed in
relation to the law of peace and security:
1. Veto or principle of unanimity: embodied for
political reasons by the permanent members
primarily in their national interests
2. interpretive resolutions on basic Charter
concerns: adopted by near-unanimity or consensus

Sources:
ML: custom grown up within the boundaries of the
State concerned and statutes enacted by the lawgiving authority
International Law: custom grown up among States
and law-making treaties concluded by them
Relations they regulate:
ML: between the individuals under the sway of the
State and the relations between the State and the
individual
International Law: relations between States
Substance of their law:
ML: law of a sovereign over individuals subjected
to his sway
International Law: between sovereign States

What then are the basic postulates of international


law?

The Monistic Doctrine:


some of the fundamental notions of
International
Law
cannot
be
comprehended
without
the
assumption of a superior legal order
from which the various systems of
Municipal Law are derived by way of
delegation

1. States are regarded as the principal actors in


creating and applying the law.
2. Independence and formal equality of States

1. Both regulate the conduct of individuals but in


the international sphere, the consequences of
such conduct are attributed to the State.

3. principles of territorial integrity and pacta sunt


servanda

2. In both sphere, law is essentially a command


binding
upon
the
subjects
of
the
law
independently of their will.

In international economic law, there is the


undertaking to give preferences to the lessdeveloped countries.

4. Basic divide between the international and


domestic domains
Characteristics of the UN system:
1. Decision-making in the UN are essentially
political processes shaped by the conditions of
quasi-parliamentary procedures and the mandates
of constituent instruments.
2. Substantive complexity of UN law-making and
law application: states are compelled to define
their national interest in relation to the collective
interests of various groups of states and, ideally, in
relation to the common interest of the whole
community of states.
3. relative transparency and linkages to nonstate
actors (experts, lobbyists, activists)
III. Relation of
Municipal Law

International

Law

and

3. Both are manifestations of a single conception


of law.
Law of Nations as Part of Municipal Law
1. In Great Britain:
a. customary rules are recognized and applied
b. Treaties affect private rights. The Crown is
willing to allow Parliament to approve treaties prior
to their ratification and that enabling legislation is
passed before the treaty is ratified.
c. English statutory law is binding upon English
courts, even if in conflict with International Law
but this does not mean that English law recognizes
in all circumstance the supremacy of International
Law.

A. In General

2. In the United States:


International Law is binding even if it
conflicts municipal law and vice versa.

Oppenheim, op. cit., pp. 35-47


Dualistic View
International Law and Municipal
essentially different.

Municipal Courts must apply International Law


even if it has not been expressly incorporated in
the
Municipal
Law
because
of
several
presumptions:

Law

are

13

1. presumption against the existence of a conflict


between ML and International Law
it is improbable that a State would
intentionally enact a rule conflicting
with the Law of Nations
2. In case of a gap between the 2 laws, it is
presumed that such privileges are tacitly granted.
3. Even if a State may renounce International Lawendowed rights, municipal courts ought to
presume that their State has tacitly consented to
make use of such rights.
Fitzmaurice, The General Principles of
International Law Considered from the
Standpoint of the Rule of Law, 92 Recueil des
Cours 5, pp. 68-94
Nature of the conflict problem
The fields in which DL and IL operate are distinct.
Two different sets of relations are involved. The
domestic field is the field of relations between
private persons inter se or private persons-State
whereas the intl field is the field of relations
between States.

Therefore, IL & DL as systems can never come into


conflict. What may occur is only a conflict of
obligations an inability of the State on the
domestic plane to act in the manner required by
international law.
Huh?
The fact that no one understands you doesnt mean
youre an artist.
Any connection between your reality and mine is
purely coincidental.
B. PRACTICAL
Practical principles:
1.

2.

3.

A. PHILOSOPHICAL
The monist-dualist controversy its artificial
& sterile character
It is useless to discuss the conflict bet DL & IL on
the basis of the monist-dualist debate because DL
& IL operate in different fields. They do not
operate in the same set of relations & transactions
there is no basis in which to even start an
argument.
IL is supreme in the intl field not because of any
inherent supremacy but because of the field of
operation. IL is not only the supreme system in the
intl field, it is the only system there is.
Difficulties of the view that the State is only
an aggregation of individuals
In order to create a common field bet DL & IL (and
thus be able to compare them), it would be
necessary to reduce the behavior of the State to
the behavior of individuals representing the State.
But individuals whose function it is the carry out
an obligation of the State does not act in any
personal capacity. They are acting on behalf of the
collectivity. Thus, the attempt to circumvent the
personality of the State merely results in its
reintroduction in some other form.
Resulting Position
Since IL & DL have no common field, it would be
meaningless to discuss whether their relationship
is one of co-ordination, or of subordination, or of
mutual subordination to a common superior order.

4.

The State cannot plead the provisions of


its national law, or of its constitution, as a
ground for the non-observance of its intl
obligations.
The State is under a general duty to cause
its law & consti to conform or to be such
as to enable the State to conform to its intl
obligations.
The State cannot plead changes, even
revolutionary changes in the States
government, admin, dynasty, political or
social system or regime, or in the
personality of the head of State as an
excuse for the non-performance of its intl
obligations. When there is a new govt,
there is no devolution of obligations or
rights. The State and its entity and
personality persist uninterruptedly.
When there is not merely a new regime
but a new State:
a. The new State becomes ipso facto
subject of general international
law rights and obligations.
b. As to obligations undertaken by
treaties, rights and obligations
devolve in accordance with State
Succession.

Brownlie, Principle of Public International


Law
Theoretical problems
Dualist: points to essential difference of IL and ML,
primarily to the fact that they legislate diff. subject
matter. IL is law bet. sovereign states. ML is law
within a state. Neither legal order has power to
create or alter rules of the other.
Monist: primarily asserts supremacy of IL over ML.
(Although Kelsen, a monist, does not support this).
It is IL which is ultimately concerned w/ the
conduct & welfare of individuals. The state is
disliked as an abstraction.
Monist-naturalist: IL & ML are subordinate to a 3 rd
legal order, usually postulated in terms of natural
law or general principles of law, superior to
both & capable of determining their respective
spheres.
[3 theories above assume that ML & IL operate

14

simultaneously in a common field in regard to the


same subject-matter]
Coordination: (Fitzmaurice) ML & IL dont conflict
in systems bec. they operate in diff. spheres. Each
is supreme in its own field. Their relation may only
result in a conflict of obligations.
The relation bet. obligations of States & ML
State cannot adduce its own Consti w/ a view to
evading obligations incumbent upon it under IL.
The Position of the Individual
The Intl Military Tribunal and many natl tribunals
do not admit pleas by persons charged w/ war
crimes that they had acted in accordance with
their national law.
Issues of ML before Intl Tribunals
Cases in w/c a tribunal dealing w/ issues of IL has
to examine ML of States:
1. As a matter of evidence, when tackling
spheres of competence claimed by states
issues relating to expropriation, fishing
limits, nationality etc.
2. When treaties contain provisions referring
directly to ML or employing concepts w/c
by implication are to be understood in the
context of a particular natl. law.
3. When Intl tribunal is faced w/ the task of
deciding issues solely on the basis of
municipal law of a particular state. (i.e.,
Serbian Loans case)
ML as facts before Intl tribunals
6 aspects:
1. ML as evidence of conduct in violation of
rule of treaty or customary law
2. Judicial notice does not apply to matters of
ML. Proof required.
3. Interpretation of their own laws by natl
courts is binding on an intl tribunal.
4. Assumption that for any domestic issue,
there must always be some applicable rule
of ML, which will be ascertainable in the
same way as other facts in the case.
5. Intl tribunals cant declare the internal
validity of rules of natl law. ILO must
respect the reserved domain of domestic
jurisdiction.
6. ML are merely facts.
Issues of IL before Municipal Courts
Before municipal courts] Rules of IL are accepted
as rules of law & are not required to be established
by formal proof [unlike rules of foreign law]. But
public policy requires special considerations in
procedure whereby the executive is consulted on
questions of mixed fact & law. This is in order to
avoid the embarrassment of conflict of opinion.
How IL are given effect in the intl sphere (the
English model)

Incorporation: Customary rules are to be


considered as part of the law of the land, with the
qualification that they are incorporated only so far
as is consistent w/ acts of the legislature & prior
judicial decisions of the State.
Transformation: IL is part of the law of the land
only in so far as the rules have been clearly
adopted & made part of the law of the State by
legislature, judicial decision or established usage.
Treaties: Become part of law if an enabling act of
the legislature has been passed. Statute prevails
over treaty. Resort to the text of a Convention may
be had under the condition that there be cogent
extrinsic evidence that the enactment was
intended to fulfill obligations under a particular
convention.
Self-executing treaties: Certain rules of IL dont
need incorporation in order to have internal effect.
Res judicata
There is no effect of res judicata from the decision
of a municipal court so far as an intl jurisdiction is
concerned. Although the subject matter may be
substantially the same, the parties and issues will
not be. However, considerations of admissibility
may have the effect of creating an exception to
this general rule.
Relation to sources of IL
Judicial decisions in municipal sphere provide
prima facie evidence of attitudes of states on
points of intl law and very often constitute the only
available evidence of the practice of states.
Conclusion
Factors that operate on the subject matter of the
relation between ML and IL:
1. Organizational to what extent are organs
of the states willing to apply rules of IL
internally and externally?
2. Difficulty of proving the existence of
particular rules of IL. In case of difficulty,
municipal courts may rely on advice from
the
executive
or
existing
internal
precedents.
3. Courts will often be concerned with the
more technical question as to which is the
appropriate system to apply.
Vienna Convention on the Law of Treaties
ART 27: A party may invoke the provisions of its
internal law as justification for its failure to
perform a treaty.
Art.46: Provisions of Intl law Regarding
Competence to Conclude Treaties
1. A State may not invoke the fact that its
consent to be bound by a treaty has been
expressed in violation of a provision its
internal law regarding competence to
conclude treaties as invalidating its
consent unless that violation was manifest

15

2.

and concerned a rule of its internal law of


fundamental importance.
A violation is manifest if it would be
objectively
evident
to
any
state
conducting itself in the manner in
accordance with normal practice and in
good faith.

IV. Sources of International Law


A. In General
Virally, The Sources of International Law, in
Sorensen
The basis and sources of law
As any other legal system, Intl Law invests its
subjects w/ rights and duties and the result is that
every such system and the rules composing it
stands above its subjects and has for them
obligatory character not affected by the fact that
the principal subjects of IL are sovereign political
units states.

For Virally, theres no need to answer the question


how can there be IL binding upon states. It suffices
that IL exists and it is universally agreed that
states are bound by it.
The problem is merely to determine upon given
facts what IL forbids, permits or requires to be
done. And when IL is invoked, it must be asked
WON it is in truth a rule of law, WON its endowed
w/ obligatory character that rules of IL possess or
WON it is a valid rule.
The solution is provided by the doctrine of the
sources of IL.
Where do IL derive their validity
1. Doctrine of Natural Law rules of natural
law are binding upon man because they
conform to the divine will or the dictate of
reason. Validity is independent of human
intervention.
2. Doctrine of Positive Law valid and
binding only if laid down in a manner
investing it w/ validity proceeds from a
recognized source.
The notion of sources of law
The term sources of law is traditionally confined to
the methods of creation of legal rules i.e. general
and permanent rules capable of repeated
application without any limit. It is not applied to
the methods of creation of particular regimes
involving rights and duties for individual subjects
of the law namely particular rules.
This view raises special problem in IL system
which contains few rules of general IL binding
upon all states forming part of the intl community.

The term international law not only connotes


general IL but other rules of general and
permanent character which are valid in relation to
certain stats only.
The question WON a given rule is one of general IL
may have great importance. If such, then its
sufficient to establish its existence since it will
bind every state. If not, then existence must be
established as well as how it have come into
existence in such a manner as to be binding upon
the particular state to which it is averred to apply.
Nevertheless, the very same source, custom can
give rise to both rules of general IL and to rules
applying to a few states. The source of law may be
relied upon both for formulation of general rules
and in providing for particular situation.
Art 38 of Statute of ICJ
The sources enumerated are those which the
parties to the statute recognize as creative of
international law.
There is a fairly general agreement that the
terminology Art 38 is purely descriptive and not
intended to circumscribe in any way the operation
of the sources which are described.
Every imaginable new source is indirectly
envisaged in the list in Art 38 and is simply the
product of the law emanating from the sources
which are mentioned in that list.
Statute of the International Court of Justice,
Article 38
1. The Court, whose function is, to decide in
accordance with international law such disputes
as are submitted to it, shall apply:
a. international convention, whether general
or particular, establishing rules expressly
recognized by contesting states;
b. international custom, as evidence of
general practice accepted as law;
c.
the general principles of law recognized
by civilized nations
d. subject to the provisions of Article 59,
judicial decisions and the teachings of the
most highly qualified publicists of the
various nations, as subsidiary means for
the determination of rules of law.
2. This provision shall not prejudice the power of
the Court to decide a case ex aequo t bono, if the
parties agree thereto.
Article 59 The decision of the court has no
binding force except between the parties and in
respect on that particular case.
Notes: Magi notes on Article 38
The word subsidiary in (d) may indicate that a-c are
the primary sources law whereas the 2 items in d are
merely subsidiary.

16

When we speak of sources of law, we are referring to


norm-creating mechanisms. In a-c, there is a creation
of norms while in (d), we have methods for proving or
indicating the roots of law that are already in
existence. (d) may be considered as evidence of law.
Article 59 emphasizes the fact that judicial decisions
and the works of publicists are not by themselves
intended to be operative as norms.
Article 38 seems to present a hierarchy, a-c over d but
this is wrong because a-c and d in fact do not belong
to the same category.
The application of the conventional rules is given
primacy even if this exists side by side with customary
norm of a general character. Why?
1. on account of the nature of those norms and
on account of the specific relationship of the
parties. Not parties to the treaty but parties to
the dispute. It is this principle that governs the
primary application of conventional rules.
If there is any hierarchy, it is on the basis of this
principle and not on the physical placement in the text
of Article 38.
B. International Custom
Wolfke, Custom in Present Day International
Law, 1964
The source of customary law is the community or,
more accurately, the way of life of the community.
The formation of custom is a continuous process
with the ff. main stages:
1)

moment of formation
when a certain practice becomes sufficiently
ripe to justify at least a presumption that it
has been accepted by other interested
states as an expression of law
corresponding
customary
rule
of
international law begins to have binding
effect
2)
ascertainment of an already existing
custom

the establishment of the existence


of an international custom (or the fulfilment
of its elements), the formulation of the
corresponding customary rule, and the fixing
of its range of validity
Mechanisms of formation:
1) analogy with custom in municipal law
misleading
and
somewhat
arbitrary
simplification
Fauchile: International custom arises like all
customs i.e. by repetition of actions in
similar situations
2) McDougals mechanism

a continuous process of raising

mutual claims and the adoption of an


attitude to such claims by competent state
organs (decision-makers)

States advance through their organs


unilateral claims and the other states
appraise these claims in terms of the
interests of the world community and
ultimately accept them (most often only
by means of tacit tolerance) or reject them
(above all by means of protest).
Elements of custom:
1) Practice (objective):
Practice constitutes the raw material of custom,
while the legal importance is added by the
element of acceptance as law
The rapid acceleration of the rhythm of
international life and improvement of the means
of communication has made possible the
formation of custom within a shorter time and
with quantitatively lesser practice.
Can abstention be a source of custom?
NO (Judge Altamira): a custom must by its
very nature be positive in character, and a
customary rule must be positively supported
by the acts which have occurred.
YES (Sorensen): abstention is often a result
of positive decision or actiondepends on
the kind of custom developing i.e. whether it
is simple inaction or abrogation of an existing
customary rule.
2) Acceptance (subjective):
Means of expressing acceptance:
1)
express
declarations

most
unequivocal
2)
tacit other individual or collective
verbal acts, depending on their content,
legal validity, and all other circumstances
In most cases the element of acceptance is
fulfilled tacitly, only by means of a presumption
based upon various kinds of active or passive
reactions to the practice by the interested
states.
Consensus is used mainly to facilitate the
reaching of an agreement during the phase of
negotiations of a draft preceding its final
acceptance. No objections are raised since they
are not binding anyhow.
Role of certain factors in formation of custom:
1) international usage

is, or at least should be,


considered as a sort of qualified practice
accepted, not as an expression of law, but as
a simple habit or, at most as a rule of
conduct of another kind: rules of comity,
international morality, etc.

distinction between usage and


custom is very difficult and possible only in
cases of international conflict, when a legal
claim, responsibility or sanctions come into
play

17

2) international agreements

WARNING: a treaty can never of


itself lead to the formation of an
international custom.
It is an outcome of the active will of
states to create mutual rights and
obligations of exclusively conventional
character.

Accession by way of custom:


Custom may extend the application of rules
contained in a treaty beyond the contracting
States.
Acceptance makes the treaty binding on
third States by way of custom, but the
treaty itself does not have legal effects
for such States.

Treaties may contribute to the formation


of customs as their elements: may
constitute custom-forming precedents, may
be evidence of practice.
3) courts and tribunals

a statement by the court that a


certain rule applies in settling a dispute
involves a law-creating factor.

decision may affect the further


development or extinction of a custom e.g.
declaration that there is no sufficient
evidence for admission of the existence of a
custom may paralyze development
4) opinions of publicists

consists of the analysis of facts and


opinions and in drawing conclusions on
binding customary rules and on trends in
their
evolution(which)
involves
unrestricted supplementation of elements
lacking.
5) national law

may be a serious factor in fields


concerning both national and international
relations

may initiate international practice


6) the rise of the great powers

power, wealth, sheer size, and


George W. Bush

presumed acceptance of great


powers frequently has a decisive effect
7) practice of international organizations

brings
about
an
enormous
intensification of international intercourse by
multiplication of contacts between states,
and, in general, a rapid development of
international practice. Souhhhcustom is
formed somewhere in between all that
ummmintercourse.
Whats Prof. Agabins
performance?

problem,

other

than

your

8) UN Gen Assembly Resolutions

2 types:
(1) acts of conduct regulated by rules of
procedure of organizations only

binding upon the organization and its


members
(2) binding/unbinding decisions the latter
do
not
constitute
evidence
of
acceptance of a practice as law, but only
of the existence of a presumption
thereof by member-states
Virally, op cit. pp. 128-143, supra
Cases:
(1) North Sea Continental Shelf Cases (1969)
The Equidistance Principle Not Inherent in the
Basic Doctrine of the Continental Shelf (paras. 3759 of the Judgment)

It had been maintained by Denmark and the


Netherlands that the Federal Republic was in any
event, and quite apart from the Geneva
Convention, bound to accept delimitation on an
equidistance basis, since the use of that method
was a rule of general or customary international
law, automatically binding on the Federal Republic.

One argument advanced by them in support of


this contention, which might be termed the a
priori argument, started from the position that the
rights of the coastal State to its continental shelf
areas were based on its sovereignty over the land
domain, of which the shelf area was the natural
prolongation under the sea. From this notion of
appurtenance was derived the view, which the
Court accepted, that the coastal State's rights
existed ipso facto and ab initio. Denmark and the
Netherlands claimed that the test of appurtenance
must be "proximity": all those parts of the shelf
being considered as appurtenant to a particular
coastal State which were closer to it than they
were to any point on the coast of another State.
Hence, delimitation had to be effected by a
method which would leave to each one of the
States concerned all those areas that were nearest
to its own coast. As only an equidistance line
would do this, only such a line could be valid, it
was contended.

This view had much force; the greater part of a


State's continental shelf areas would normally in
fact be nearer to its coasts than to any other. But
the real issue was whether it followed that every
part of the area concerned must be placed in that
way. The Court did not consider this to follow from
the notion of proximity, which was a somewhat
fluid one. More fundamental was the concept of
the continental shelf as being the natural
prolongation of the land domain. Even if proximity
might afford one of the tests to be applied, and an

18

important one in the right conditions, it might not


necessarily be the only, nor in all circumstances
the most appropriate, one. Submarine areas did
not appertain to the coastal State merely because
they were near it, nor did their appurtenance
depend on any certainty of delimitation as to their
boundaries. What conferred the ipso jure title was
the fact that the submarine areas concerned might
be deemed to be actually part of its territory in the
sense that they were a prolongation of its land
territory under the sea. Equidistance clearly could
not be identified with the notion of natural
prolongation, since the use of the equidistance
method would frequently cause areas which were
the natural prolongation of the territory of one
State to be attributed to another. Hence, the
notion of equidistance was not an inescapable a
priori accompaniment of basic continental shelf
doctrine.

A review of the genesis of the equidistance


method of delimitation confirmed the foregoing
conclusion. The "Truman Proclamation" issued by
the Government of the United States on
28 September 1945 could be regarded as a
starting point of the positive law on the subject,
and the chief doctrine it enunciated, that the
coastal State had an original, natural and
exclusive right to the continental shelf off its
shores, had come to prevail over all others and
was now reflected in the1958 Geneva Convention.
With regard to the delimitation of boundaries
between the continental shelves of adjacent
States, the Truman Proclamation had stated that
such boundaries "shall be determined by the
United States and the State concerned in
accordance with equitable principles". These two
concepts, of delimitation by mutual agreement
and delimitation in accordance with equitable
principles, had underlain all the subsequent
history of the subject. It had been largely on the
recommendation of a committee of experts that
the principle of equidistance for the delimitation of
continental shelf boundaries had been accepted
by the United Nations International Law
Commission in the text it had laid before the
Geneva Conference of 1958 on the Law of the Sea
which had adopted the Continental Shelf
Convention. It could legitimately be assumed that
the experts had been actuated by considerations
not of legal theory but of practical convenience
and cartography. Moreover, the article adopted by
the Commission had given priority to delimitation
by agreement and had contained an exception in
favour of "special circumstances".

The Court consequently considered that Denmark


and the Netherlands inverted the true order of
things and that, far from an equidistance rule
having been generated by an antecedent principle
of proximity inherent in the whole concept of

continental shelf appurtenance, the latter was


rather a rationalization of the former

The Equidistance Principle Not a Rule of


Customary International Law (paras. 60-82 of the
Judgment)

The question remained whether through positive


law processes the equidistance principle must now
be regarded as a rule of customary international
law.

Rejecting the contentions of Denmark and the


Netherlands, the Court considered that the
principle of equidistance, as it figured in Article 6
of the Geneva Convention, had not been proposed
by the International Law Commission as an
emerging rule of customary international law. This
Article could not be said to have reflected or
crystallized such a rule. This was confirmed by the
fact that any State might make reservations in
respect of Article 6, unlike Articles 1, 2 and 3, on
signing, ratifying or acceding to the Convention.
While certain other provisions of the Convention,
although relating to matters that lay within the
field of received customary law, were also not
excluded from the faculty of reservation, they all
related to rules of general maritime law very
considerably antedating the Convention which
were only incidental to continental shelf rights as
such, and had been mentioned in the Convention
simply to ensure that they were not prejudiced by
the exercise of continental shelf rights. Article 6,
however, related directly to continental shelf rights
as such, and since it was not excluded from the
faculty of reservation, it was a legitimate inference
that it was not considered to reflect emergent
customary law.

It had been argued on behalf of Denmark and the


Netherlands that even if at the date of the Geneva
Convention no rule of customary international law
existed in favour of the equidistance principle,
such a rule had nevertheless come into being
since the Convention, partly because of its own
impact, and partly on the basis of subsequent
State practice. In order for this process to occur it
was necessary that Article 6 of the Convention
should, at all events potentially, be of a normcreating character. Article 6 was so framed,
however, as to put the obligation to make use of
the equidistance method after a primary obligation
to effect delimitation by agreement. Furthermore,
the part played by the notion of special
circumstances in relation to the principle of
equidistance, the controversies as to the exact
meaning and scope of that notion, and the faculty

19

of making reservations to Article 6 must all raise


doubts as to the potentially norm-creating
character of that Article.

Furthermore, while a very widespread and


representative participation in a convention might
show that a conventional rule had become a
general rule of international law, in the present
case the number of ratifications and accessions so
far was hardly sufficient. As regards the time
element, although the passage of only a short
period of time was not necessarily a bar to the
formation of a new rule of customary international
law on the basis of what was originally a purely
conventional rule, it was indispensable that State
practice during that period, including that of
States whose interests were specially affected,
should have been both extensive and virtually
uniform in the sense of the provision invoked and
should have occurred in such a way as to show a
general recognition that a rule of law was
involved. Some 15 cases had been cited in which
the States concerned had agreed to draw or had
drawn the boundaries concerned according to the
principle of equidistance, but there was no
evidence that they had so acted because they had
felt legally compelled to draw them in that way by
reason of a rule of customary law. The cases cited
were inconclusive and insufficient evidence of a
settled practice.

The Court consequently concluded that the


Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of
customary international law enjoining the use of
the equidistance principle, its subsequent effect
had not been constitutive of such a rule, and State
practice up to date had equally been insufficient
for the purpose.

The Principles and Rules of


(paras. 83-101 of the Judgment)

Law

Applicable

The legal situation was that the Parties were under


no obligation to apply the equidistance principle
either under the 1958 Convention or as a rule of
general or customary international law. It
consequently became unnecessary for the Court
to consider whether or not the configuration of the
German North Sea coast constituted a "special
circumstance". It remained for the Court, however,
to indicate to the Parties the principles and rules of
law in the light of which delimitation was to be
effected.

The basic principles in the matter of delimitation,

deriving from the Truman Proclamation, were that


it must be the object of agreement between the
States concerned and that such agreement must
be arrived at in accordance with equitable
principles. The Parties were under an obligation to
enter into negotiations with a view to arriving at
an agreement and not merely to go through a
formal process of negotiation as a sort of prior
condition for the automatic application of a certain
method of delimitation in the absence of
agreement; they were so to conduct themselves
that the negotiations were meaningful, which
would not be the case when one of them insisted
upon its own position without contemplating any
modification of it. This obligation was merely a
special application of a principle underlying all
international relations, which was moreover
recognized in Article 33 of the Charter of the
United Nations as one of the methods for the
peaceful settlement of international disputes.

The Parties were under an obligation to act in such


a way that in the particular case, and taking all the
circumstances into account, equitable principles
were applied. There was no question of the Court's
decision being ex aequo et bono. It was precisely a
rule of law that called for the application of
equitable principles, and in such cases as the
present ones the equidistance method could
unquestionably lead to inequity. Other methods
existed and might be employed, alone or in
combination, according to the areas involved.
Although the Parties intended themselves to apply
the principles and rules laid down by the Court
some indication was called for of the possible
ways in which they might apply them.

For all the foregoing reasons, the Court found in


each case that the use of the equidistance method
of delimitation was not obligatory as between the
Parties; that no other single method of delimitation
was in all circumstances obligatory; that
delimitation was to be effected by agreement in
accordance with equitable principles and taking
account of all relevant circumstances, in such a
way as to leave as much as possible to each Party
all those parts of the continental shelf that
constituted a natural prolongation of its land
territory, without encroachment on the natural
prolongation of the land territory of the other; and
that, if such delimitation produced overlapping
areas, they were to be divided between the Parties
in agreed proportions, or, failing agreement,
equally, unless they decided on a rgime of joint
jurisdiction, user, or exploitation.

In the course of negotiations, the factors to be


taken into account were to include: the general
configuration of the coasts of the Parties, as well

20

as the presence of any special or unusual features;


so far as known or readily ascertainable, the
physical and geological structure and natural
resources of the continental shelf areas involved,
the element of a reasonable degree of
proportionality between the extent of the
continental shelf areas appertaining to each State
and the length of its coast measured in the
general direction of the coastline, taking into
account the effects, actual or prospective, of any
other continental shelf delimitations in the same
region.

Notes:
Lex lata- law as it is
Lex ferenda- law as it ought to be
De lege ferenda- experimental basis
Universality is not necessary to fulfill the
requirement of generality of law. Generality merely
makes an assumption of consistency of general
practice.
On why the equidistance principle is not normcreating, the ICJ said:
1.

2.
3.
4.

the primary rule is that there must be an


agreement among the parties as to how to
delimit. Equidistance is relegated to a
secondary position as a rule;
the
parties
may
derogate
from
the
equidistance principle by agreement;
art. 12 of the convention gives states the right
to reserve unilaterally, hence they can refuse
to agree to the principle;
special circumstances may be taken into
consideration, such as irregular coastlines.

Magi- by its very nature, a customary or


general law should not be subject to reservation
because this type of law should operate with equal
force on every state.
On Opinio Juris (recognition of a practice as
legally binding)- Denmark and the Netherlands
contend that proof of general practice should also be
taken as proof of opinio juris. However, the ICJs stand
is that opinio juris must be proved separately because
it could happen that states enter into agreement
merely for expediency.
On General Practice- it must be extensive and
consistent. The duration of time involved is not
decisive by itself.
(2)
Case
Concerning
Military
and
Paramilitary
Activities
In
and
Against
Nicaragua (1986)
On April 9, 1984, the Ambassador of the Republic
of Nicaragua to the Netherlands filed in the
Registry of the Court an Application instituting

proceedings against the United States concerning


responsibility fir military and paramilitary activities
in Nicaragua.
used military force
intervened in internal affairs
created an army of more than 10,000
mercenaries
to
harass
and
destabilize
the
Government of Nicaragua
Nicaragua claimed that Court had jurisdiction by
virtue Nicaraguas Declaration of 1929:
On behalf of the Republic of Nicaragua, I recognize
as compulsory unconditionally the jurisdiction of
the Permanent Court of International Justice.
Sgd. T. F. Medina
The United States opposed on the ground that:
Nicaragua never ratified the Statute of
the Permanent Court of International
Justice (files of the League of nations
contained no evidence that an
instrument of ratification had ever
been received)
1984
notification
denied
Court
jurisdiction: declaration shall not apply
to disputes with any Central American
State or arising out of or related to
events in Central America
Issue: WON Nicaraguas 1929 Declaration is valid
and binding
Held: No
Ratio:
did not accomplish the indispensable
step of sending its instrument of
ratification to the Secretary-general of
the League of Nations
HOWEVER, Court ruled that Nicaragua can still
invoke compulsory jurisdiction of the Court:
1. The essential validity of the Nicaraguan
declaration as an acceptance of the compulsory
jurisdiction is confirmed by the evidence of a long
series of public documents, by the general opinion
of States and by the general opinion of qualified
publicists.
2. Other Sates have never challenged the
interpretation to which the publications of the UN
bear witness and whereby Nicaragua was deemed
to be covered by Article 36 on compulsory
jurisdiction. Such States as themselves publish
lists of states bound by the compulsory jurisdiction
of the court have placed Nicaragua on their lists.
3. In effect, Nicaragua was placed in an
exceptional position, since the international organs
empowered to handle such declarations declared
that the formality in question had been
accomplished by Nicaragua.

21

United States raised another provision in its 1946


Declaration which said the it was to subject itself
to the jurisdiction of the Court only if all the parties
to the treaty affected by the decisions are also
parties to the case before the Court.(multilateral
treaty reservation)
-

Court ruled that this provision does not


deprive court of jurisdiction because
Nicaragua invokes a number of
principles of customary and general
international law that have been
violated by the US. (no need to bring
in parties to treaty if case involves
violation of customary law)
Principles such as those of the non-use
of force, non-intervention, respect for
independence and territorial integrity
of States, freedom of navigation,
continue to be binding as part of the
customary international law, despite
the operations of conventional law in
which they have been incorporated.

Notes:
Even if customary norms have been codified, they do
not cease to exist as customary norms, even to states
parties to the convention. CIL continues to apply
separately from IL even when the two have an
identical content.

Nicaragua laid down a limitation to the North Sea


holding when the ICJ here said: there are practices of
states that by their very nature may exhibit on their
face, opinio juris.

Magi- if you combine the 2 elements (general practice


and opinio juris), it will give you the juridical nature of
the practice of law. So it seems that the emphasis of
art. 38 (b) is the juridical character of practice and
therefore the emphasis is on opinio juris confirmed by
general practice.
(3) Asylum Case (1950)
Facts:
Act if Lima between the Colombian Government
and Peruvian Government: Colombian Embassy in
Lima requested for delivery of a safe conduct for
Msr. Victor Raul Haya de la Torre. The request was
based on the Convention on Asylum signed at
Havana and the Agreement on Extradition signed
in Caracas.
Colombia submits that it is competent to qualify
the offense for the purpose of asylum and that
such is by a unilateral and definitive decision
binding on Peru: based submission partly on rules,
resulting from agreement, partly on an alleged
custom peculiar to Latin American States.

to qualify the offense for the purpose of asylum


To qualify refugees as:
1. offenders for common crimes
2. deserters from the army or navy
3. political offenders
Issue: WON custom is a valid basis for Colombias
assertions
Held: NO
Ratio:
1. Colombia must prove that this custom is
established in such a manner that it has become
binding on the other party.
a. Rule is in accordance with a constant
and uniform usage practiced by States.
b. usage is the expression of a right
appertaining to the State granting asylum
and a duty incumbent on territorial states.
2. Only if above are proven can Colombia remain
consistent with Article 38 of SoC: international
custom as evidence of a general practice accepted
as law.
3. Montevido Convention of 1933: limited number
of States ratified this convention and thus not
sufficient to prove international custom
even if there was such a custom, Peru
still would not be bound because it
repudiated
such
convention
by
refraining from ratifying it.
RULE: Colombia, as the state granting asylum, is
not competent to qualify the offence by a
unilateral and definitive decision, binding on Peru.
Notes:
Territorial asylum- there is no derogation of
sovereignty of the host state (the state to which the
offender escaped or sought asylum)

Diplomatic asylum- asylum is given by the embassy of


a foreign power in the territory of the host state

ICJ: diplomatic asylum is a derogation of the general


rule, therefore it was incumbent upon Colombia to
show that this rule exists and that is binds Peru.
Colombia failed in this respect.

Although the ICJ concedes that there may be


customary norms merely on a regional scope or
application as contended by Colombia, the court said
Colombia nonetheless failed to prove the existence of
such rule and failed to show that Peru was bound.

22

C. Treaties
Tunkin, Theory of International Law, 1974
Shortcuts:
IC International Conference
IT International Treaty
IO International Organization
IL International Law
ILC International Law Commission
I. TREATIES BET. STATES
Interstate treaty - as a method of creating norms
of IL, is a clearly expressed agreement bet. states
relating to the recognition of a particular rule as a
norm of IL or to the change or liquidation of
existing norms of IL
> Vienna convention, Art. 2: treaty (def) is
an intl agreement
concluded between
states in written form
> Conventional norm of IL result of an
agreement expressed in the form of
treaties bet. states
In 2nd half of 19th century, theories emerged that
only a certain group of intl treaties played a role in
norm-formation.
A. Bergbohm - two categories exist based on
difference in purpose, which contracting parties
set for themselves:
1. contract treaties dont go beyond
possible limits already granted to states
under prevailing IL; dont establish norms
of conduct for long periods of time; very
rarely are sources of IL
2. law-making treaties create abstract
norms which are recognized/established
by states as norms of conduct for the
future; sources of IL
B. N. Korkunov
1. constitutive regulate an individual
concrete relationship; do not establish a
legal norm as the general rule
2. regulatory have the purpose of
standardizing a whole series of uniform
relationships and establishing general
norms for all uniform relationships
C. F. Martens
1. treaties that formulate legal norms
2. contractual treaties concerning private
interests
D. Triepel distinction bet. norm-creating treaties
and other treaties:
1. Vertrag in treaty which doesnt create
norms, there is divergence of wills of
contracting parties
2. Vereinbarung in norm-creating treaties,
there is coincidence of wills and their
amalgamation into a common will
(Gemeinwille)

E. A. Ulloa: Majority of intl treaties are not a


source of IL. They simply arise out of prevailing IL.
F. A. Verdross, divides treaties into:
1. Vereinbarungen (law-making treaties)
includes multilateral and bilateral treaties
that establish general abstract norms
2. Rechtsgeschafte (contracts) includes
treaties pertaining to specific questions
G. Rosseau: Only law-making treaties (traites-lois)
are recognized as sources of IL
H. Jimenez de Arachaga: Although both lawmaking and contractual treaties create legal
norms, only those treaties which form general
norms are a source of IL.
Today, many writers reject this division.
A. Rosseau: Both types of treaties have the same
force in positive IL and no hierarchy exists
between them. The division is of interest only in
terms of description and classification.
B. Oppenheim- Lauterpacht: All treaties are
law-making inasmuch as they lay down rules of
conduct which the parties are bound to observe as
law.
C. C. de Visscher: Although both treaties play
unequal roles in the development of IL, both are
law for the contracting parties. Only difference:
1. law-making treaties relate to wider
sphere of relations and concluded for a
prolonged period
2. contractual treaties concluded w/ regard
to private questions, short-term, and after
being fulfilled, terminate their operation
D. Kelsen completely rejects the division; The
essential function of a treaty is to make law, to
create a legal norm, whether general or an
individual norm.
E. Guggenheim: The difference bet. normcreating and contractual treaties affects only the
content, and interpretation but not the legal
nature of intl conventions.
F. F.I. Kozhevnik: All treaties in principle have a
norm-formative charactersince they establish
rules of conduct which their parties are bound to
observe. Difference lies in treaties which establish
rules for:
1. whole sphere of relations among states
2. definite concrete questions
G. Korovin: Division is unfounded. Any treaty, as
an act originating with state-subjects of IL, has a
particular law-making significance.
H. Lachs: In realityan intl treaty, either bilateral
or multilateral, is a source of rights and duties,
even when it regulates very commonplace
questions of everyday life. Lachs divides treaties
into:
1. Treaties affirming or formulating certain
already existing binding principles and
norms of law for the purpose of greater
clarity;
2. Treaties creating new principles and
norms;

23

3.

Treaties applying existing principles or


norms of law ad casum.

Tunkin: Problem [of distinction] is exaggerated &


has no practical significance. Any valid intl treaty
has legally binding force for its parties & in this
sense is law-making.
Conclusion of a Treaty (def) is a process of bringing
the wills of States into concordance, the result of
which is an agreement that is embodied in the
norms of the treaty. The process embraces several
stages:
1. negotiations
2. initialing
3. adoption by IC or organ of IO
4. signature
5. confirmation
6. ratification
7. exchange/deposit of instruments
8. entry into force
It is, however, not obligatory that conclusion of
a specific treaty pass through all these stages.
When does process begin & end?
Fitzmaurice: Text Agreement. The drafting of
the text is a technical process irrelevant to the
agreement.
Tunkin: Fitzmaurices construction is artificial. One
cant distinguish between the negotiating process
among representatives of states and the
preparation of the draft treaty by experts who are
not plenipotentiary representatives of states.
The process of concluding a treaty commences
with
negotiations
among
official
state
representatives irrespective of the form/level
wherein these negotiations take place.
Process of Treaty Formation
1 Content of agreement is formed in the course of
working out a treaty text (during negotiations in
ICs etc.). Agreement is fixed in the text.
2 By initialing, signature or enactments of ICs or
IOs, the treaty text is established.
- Gen Rule: Once text is established, no participant
can insist on its being changed.
- Exception: When reservations are made.
ReservationObjectionEffect
Norm of IL result of completion of the process of
concluding an IT
Note: But it is necessary to distinguish bet. entry
into force and process of concluding a treaty
Rules:
1 treaty concluded before entry into force
norm emerges but still not a prevailing norm
2 treaty entered into force before concluded
norm exists & commences to operate but

n. a diplomatic agent having full power or authority.


The US, for example, has either an ambassador or a
minister plenipotentiary in most important countries.

operation is provisional (subject to ratification)


Until a treaty norm of IL has entered into force,
no legal obligations arise for the parties to the
negotiations on the basis of it. But this does not
affect obligations concerning negotiations.
the consent of states to enter into
negotiations doesnt in itself
impose an obligation to conclude a
treaty
Once process of concluding a treaty is complete,
the process of forming norm of IL is complete.
Modification/Liquidation of a Treaty Norm
1 Modification may occur by treaty or by custom
* By treaty occurs by concluding a supplemental
or new treaty
BUT any modification of a treaty requires the
consent of all parties unless the treaty itself
provides otherwise.
2 Liquidation also by treaty or custom
* By treaty expiration of the term of treaty,
agreement of parties, denunciation, abrogation
etc.
II. TREATIES BET. STATES CONCLUDED W/IN THE
FRAMEWORK OF IOs
IOs concentrate in their hands the organizing of
the conclusion of multilateral treaties among
states concerning questions w/c relate towards the
domain of their activities. Trend: towards
simplifying procedure of concluding ITs.
Example: In the Intl Labor Organization
Convention adopted by General Conference
signed by Conference Chairman & ILO DirectorGeneral certified copies sent to member-states
state ratifies & notifies Dir-Gen of ratification
no sigs of state representatives required or
deposit of instruments of ratification
IOs vs Normal Norm-Creating Process
There are two aspects of forming norms, whether
customary
or
conventional.
Norm-formation
consists of bringing into concordance the wills of
the states with respect to:
1 content of rules of conduct
2 recognition of rule as norm of IL
In IOs, these aspects never coincide.
Concordance of states as to:
1 content accomplished w/in the framework of
IO as in adoption of treaty text as final by the
organ of the IO or conference of plenipotentiaries
of States created by a decision of IO
2 recognition as norm of IL formed from
individual actions of states (signature, ratification
etc.) w/o w/c treaties adopted by IOs dont become
legally binding upon states

24

III. REGULATIONS ADOPTED BY SPECIALIZED IOs


* Examples of Specialized IOs :
Meteorological Organization, Universal
Union etc.

World
Postal

Why created
Specialized IOs create normative regulations
bec. of increase in quantity of primarily technical
questions w/ w/c the orgs had to occupy
themselves.
Simplified
procedure
required.
Technology moves rapidly norms must change
frequently.
How formulated
Regulations are adopted by plenary or lesser
organs. The charter come into force:
1 expressly subject to ratification or approval of
states
2 tacitly regulation regarded as accepted if state
does not object or does not refuse to accept a
particular regulation w/in a prescribed period
Legal Nature
Other writers (Guggenheim, Friedmann, Vellas,
Suba etc.) : These regulations are international
legislation. They are more acts of the organization
than an agreement bet. member- states &
resemble unilateral legislative acts enacted by
congress (in municipal law).
Tunkin: Regulations are not legislation but
International Treaties. Content of norms may have
already been finally determined [by IO] but to
become binding upon states, an expression of its
will is necessary to recognize such norms as IL
norms Binding force of forms of regulations is
based upon agreement & not upon legislative
power of IOs.
IV. TREATIES OF IOs
Why created
- result of development of IOs that are subjects of
IL
Two Categories
1 Treaties concluded by IOs with each other
ex. Standard Agreement on Mutual Assistance to
Jordan
2 Treaties concluded by IOs with states
- relate to location of organizations & their organs,
granting of assistance, privileges & immunities
etc.
Legal nature There are two views as to the
legal nature of treaties of IOs:
1 considered as treaties bet. States
This view arose out of a denial of the legal
personality of IOs. Treaties of IOs are considered
simply as variant forms of treaties bet. states. For
example, agreements concluded by the UN give
rise to rights & obligations not for the UN as such,

but for member states of the UN.


2 considered as treaties bet. IO and states
This view arose out of a confirmation that IOs have
legal personality. IOs are created by states but
they are organizations distinct from states. IOs
acquire rights & assume specific obligations,
separate from states.
The ILC initially proposed to include treaties of IOs
within the scope of draft articles on the law of
treaties, such that a treaty will be defined as an
agreement in writing bet. two or more states or
IOs. Even writers who consider treaties bet.
subjects of IL as not necessarily being ITs or who
do not have a definite position on this question
also
come
to
the
conclusion
that
the
overwhelming majority of treaties of IOs have an
intl character.
But the ILC eventually decided to work out a draft
having in view only treaties bet. states in order to
study later what modifications are required to be
introduced to make them applicable to treaties of
IOs.
Tunkin says this decision is correct. Because
Recognizing agreements of IOs as ITs in no way
signifies that such treaties can be equated to
treaties bet. states. Specific feature of IOs as
subjects of IL affects treaties which they conclude.
Norms of treaties concluded bet. IO-IO and IOStates always are of a secondary nature. The
validity of these treaties is always the charter of
the IO, which contains norms of primary order.
Notes:
2 kinds of treaties-

1.

contractual: contains provisions which do not


go beyond the possible limit already granted
to states under prevailing IL; rarely a source of
IL.

2.

law-making treaties: create abstract norms


recognized by states as norms of conduct for
the future.

Treaty-making process-

1.
2.
3.
4.
5.
6.
7.
8.

negotiations
initiating
adoption by the intl. Organ
signature
confirmation
ratification
exchange & deposit of instruments
entry into force

25

*** some of these stages my be skipped


*** the drafting of the text is a technical process which
has no relevance to agreeing to the treaty. Thus a
state may agree to the language of the draft, but may
later on refuse to accede to the treaty itself.
How treaties are modified1.
2.

by custom
by a new treaty

Jennings, Treaties in Bedjaoui


Note: This digest does not include PROVISIONS of
the VIENNA CONVENTION (to save on Xerox
space) but these are VERY IMPORTANT. Please
read them in the original, theyre in smaller fonts
in the material.
Shortcuts:
IC International Conference
IT International Treaty
IO International Organization
IL International Law
I. INTRODUCTION
The treaty is the most important instrument
known to ILand is also, in volume, range and
ubiquity, the most important source of IL.
The standard form of treatyis a
agreement between States, which
obligations & rights in IL[But] besides
bet. States, there are treaties bet. Statesbet. IO-IO.

written
creates
treaties
IOs and

IL prescribes no particular form or procedure for


the making of intl engagements: though Consti
Law of a State may and frequently does. Nor is
there any required order of the content of a treaty.
There are also many possible designations of a
treaty. It may be called: convention, declaration,
protocol, act etc.
II. CONCLUSION & ENTRY INTO FORCE
Two phases in conclusion & entry into force:
1. adoption of an agreed final draft of the
treaty text
2.
ways in which a party can thereafter
effectively indicate its consent to become bound
by the treaty
Phase 1: Vienna Convention Rules on the adoption
of an agreed text
1. In bilateral treaties or treaties between a few
States, unanimity remains the rule. Adoption
requires
the
consent
of
all
States
participating.
2. At
a
general
diplomatic
conference,
unanimity will be unrealistic. Adoption takes
place by the vote of 2/3 of the States present

and voting, unless by the same majority they


shall decide to apply a diff. rule.
Phase 2: Modes of expressing consent to become
bound
* Signature serves two diff. functions:
1. one
act
of
signature
may
both
authenticate the text and express finally
the consent of the signatory State to be
bound by the treaty or;
2. signature authenticates the text but
consent to be bound has to be expressed
by a second step, such as ratification,
approval etc.
* Ratification the exchange or deposit of a formal
instrument, by which a State signifies its
willingness to become bound by a treaty
1. bilateral treaty instrument normally
exchanged
2. multilateral treaty instrument normally
deposited with a designated depositary
power
* Acceptance & Approval less formal modes of
expressing willingness to become a party to a
treaty
* Accession an act whereby a State becomes a
party to a treaty already made and signed by
other States; or an act whereby a State may
become a party to a treaty made under the
auspices of an IO
Time of entry into force
* Bilateral treaty
- moment both parties validly express consent to
be bound or;
- subsequent date agreed upon by the parties for
entry into force
* Multilateral treaty
- desirable to postpone entry into force until the
convention has been accepted by a goodly
number of States
- but procedural provisions governing entry into
force etc. usually apply from the time of the
adoption of the text
III. RESERVATION
Legal Effect
1. Where treaty itself provides that a reservation
may or may not be made, follow the treaty.
2. Otherwise:
a. Traditional doctrine based on unanimity
principle
A reservation not expressly provided for
in the treaty, is in effect a new offer; and
accordingly a reserving State could not
become a party unless the reservation
received the express or tacit approval of
every other State party.
b. Object & Purpose Test
A State which has made & maintained a

26

reservationcan be regarded as being a


party to the Convention if the reservation
is compatible with the object and purpose
of the Convention.
If a party objected to a reservation as
not being so compatible, that party is
entitled to regard the reserving State as
not being a party to the Convention; and
conversely for a party taking the opposite
view.
c. Compatibility Test at the Vienna Conference
A State mayformulate a reservation
unless:
a. the reservation is prohibited by the
treaty
b. the treaty provides that only specified
reservations, which do not include the
reservation in question, may be made
c. or in cases not falling under (a) or (b),
the reservation is not compatible with the
object and purpose of the treaty.

Legal Effect of Reservations on existing parties to


a treaty
Gen Rule: Acceptance of a reservation by another
contracting State constitutes the reserving State a
party in relation to that other State.
An act expressing a States consent to be bound
by the treaty and containing a reservation is
effective as soon as at least one other contracting
State has accepted the reservation; and a
reservation is considered to have been accepted
by a State if it has not objected to it within
12months of its notification.
Scheme leans in favor of the reserving state.
Objectors have to take position action.

A reservation established with regard to another


party, modifies provisions of the treaty to the
extent of the reservation, in the relation between
the reserving State and the other party. However,
the reservation does not modify the provisions of
the treaty for the other parties inter se.

IV. OBSERVANCE, APPLICATION and


INTERPRETATION

Observance
The primary principle to be observed is pacta
sunt servanda: Every treaty in force is binding
upon the parties to it and must be performed by
them in good faith; A party may not invoke the
provisions of its internal law as justification for its
failure to perform a treaty.

Application
In point of time: A treaty is not retroactive.
Territorial application: A treaty will apply to the
whole territory of the State.
Conflicts of treaties relating to the same subject
matter:
* If all parties to treaty 1 are parties to treaty 2 >
Lex posterior principle will apply & treaty 2 will
prevail.
* If not all parties to treaty 1 are parties to treaty
2:
- as between States parties to both treaties > later
treaty prevails
- as between a State - party to both treaties and
another State - party to only one treaty > treaty to
which both are parties prevails
Interpretation
Gen. Rule: Where the meaning is clear, the
treaty should be applied accdng to its clear
meaning.
If interpretation is required, the Gen. Rule of
Interpretation is: A treaty shall be interpreted in
good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in
their context & in the light of its object & purpose.
primarily textual, but also incorporates
principles of object & purpose and intention of
parties
V. TREATIES & 3RD STATES
A treaty does not create obligations or rights for a
3rd State without its consent.
An obligation or right created may not be modified
or revoked without the consent of the 3rd State.
If a treaty rule is the same as an existing general
rule of customary law, the latter will still apply to
3rd States as custom States parties to the
treaties will be doubly bound: by custom in regard
to States generally, and also by treaty in regard to
the other parties.
Example of an indirect way by which a treaty may
affect the rights and obligations of 3 rd States: If a
treaty validly creates an IO with legal personality,
a 3rd State may not be in a position to deny the
objective and legal existence of that organization.
VI. AMENDMENT & MODIFICATION
Amendment & Modification distinguished
Amendment (def) a formal agreement to alter the
treaty with respect to all parties
Modification (def) an inter se agreement between
only some parties and intended to vary the treaty
bet. themselves alone
The Vienna Convetion lays down rules for the
amendment
of
multilateral
treaties
and
agreements to modify multilateral treaty as bet.

27

two parties. (pls. see p.149 of Jennings)


VII. INVALIDITY
Possible causes of invalidity:

6. Jus Cogens
A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general IL. (pls
see Art. 53, 64, 71 of UN Charter)

1. Breach of IL
Q: May the State be bound through a person
acting ultra vires, yet having ostensible authority
to deal in the eyes of the other party?
Rule: Consent on the intl plane binds.
Exception: Where the violation of the internal law
was manifest and the internal law rule violated
was of fundamental importance.

VIII. TERMINATION AND SUSPENSION OF


OPERATION

2. Error
Error may be invoked as a ground invalidating
consent only if the error relates to some fact or
situation which was assumed by the State
invoking the error to exist at the time when the
treaty was concluded, and that fact or situation
formed an essential basis of its consent to be
bound by the treaty.
Error may not be invoked by the State if it
contributed to the error by its own conduct or if
the circumstances were such as to put the State
on notice of a possible error.

1. Those logically linked with the notion of


agreement as the basis of treaties.

3. Fraud
If a State has been induced to conclude a treaty
by the fraudulent act of another negotiating State,
the State may invoke the fraud as invalidating its
consent to be bound by the treaty.
Manipulation of a State representative through
corruption may also be invoked as invalidating the
States consent.
4. Coercion
a. employed against the representative of the
State
- consent shall be without legal effect;
except when the State concerned has
already ratified the representatives act
b. employed against the State itself
- A treaty is void [in its entirety] if its
conclusion has been procured by the
threat or use of force in violation of the
principles of IL embodied in the Charter of
the UN.
- Q: What uses of force are in violation of
the principles of IL?
A: Force in any form, whether military,
political or economic.
5. Registration & Publication
Art. 102 UN Charter requires: Every treaty and
every intl agreement entered into by any Member
of the UNbe registered as soon as possible with
the Secretariat and published by it.
The sanction, however, is not invalidity, but that
the unregistered treaty or agreement may not be
invoked before any organ of the UN, including the
ICJ.

Termination deals with a valid treaty which has


been in force for the parties. It is not the same as
invalidity.
Grounds for termination or suspension:

Treaty may terminate where


- this is in conformity with the provisions of the
treaty, or where all parties are consulted and
agree to it.
- the treaty does not have such provision, but
parties nevertheless intended such a possibility or
the right of withdrawal can be implied in the
nature of the treaty.
- termination is a necessary implication of the
conclusion of a later treaty between the same
parties, relating to the same subject-matter.
2. Those outside any area of agreement
a. Breach
Gen Rule: A sufficiently impt breach of an
agreement by a party, gives a party suffering from
the breach the option to abrogate the
arrangement, as well as a claim to appropriate
reparation for damage caused to him.
What makes a particular breach important
enough? The kind of breach that can justify an
option to abrogate must be one in an essential
respect, going to the root or foundation of the
treaty relationship bet. the parties and calling in
question the continued value, or even the
possibility of that relationship.
But the effects of a material breach of a bilateral
treaty are the different from the effects of a
material breach of a multilateral treaty. Effects of
the latter are more complicated.
Finally, breach must be distinguished from justified
non-performance (i.e., as a legitimate retaliation
for a prior wrong).
b. Supervening Impossibility of Performance
Impossibility of performance
physical removal of an object
execution of the treaty.
impossibility of performing
heading of

is confined to the
indispensable to the
Subtler kinds of
fall into the next

c. Fundamental Change of Circumstances


In domestic law, a common device to deal with a

28

frustration of the purpose of an agreement is


the implied term, according to which the parties
are supposed, by an implied but tacit term of their
agreement, to have agreed that the continuance
of certain key circumstances was essential to the
operation of the agreement; therefore a frustrating
and unanticipated change of those circumstances
would void the agreement.
In IL, the problem of frustration of the purpose of
agreement is dealt with under the rubric of an
implied so-called clausula rebus sic stantibus, like
the implied term devise in domestic law.
The Vienna Convetion presents this concept as an
exception to the superior concept of pacta sunt
servanda.
BUT there are cases where the plea of
obsolescence may not be used at all:
1. boundary treaty where permanence and
stability, even though circumstances
change, is of the essence of the matter
2. where the party seeking to invoke the
change has himself wrought it
IX.LEGAL CONSEQUENCES OF INVALIDITY,
TERMINATION OR SUSPENSION
Gen. Rule: The provisions of a void treaty have no
legal effect.
Specific Rule: If acts have nevertheless been
performed in reliance on a void treaty
1. each party may require any other party to
establish as far as possible in their mutual
relations the position that would have
existed if the acts had not been performed
2. acts performed in good faith before the
invalidity was invoked are valid
but these rules do not apply in cases where
there is fraud, corruption or coercion, with
respect to the party to which the fraud, act of
corruption or the coercion is imputable.
X. SEPARABILITY OF TREATY PROVISIONS
AND THE INVOKING OF INVALIDITY OR OF A
GROUND FOR TERMINATING OR SUSPENDING
Gen. Rule: Grounds for termination etc. may be
invoked only with respect to the whole treaty.
Exception: If ground relates solely to particular
clauses, it may be invoked only with respect to
those clauses where:
1. said clauses are separable from the
remainder of the treaty with regard to
their application
2. it appears that acceptance of those
clauses was not an essential basis of the
consent of the party to be bound

a radical change of circumstances which makes an


agreement into something essentially different from
what was contemplated by the parties at the time
they made it

3.

continued performance of the remainder


of the treaty would be injust (!)
Specific Rules:
* A party must denounce the whole of the treaty or
refrain from denouncing any part of it.
* Only a material breach will create the option of
termination. A material breach affects the whole of
the treaty, therefore termination in case of breach
may be in respect of the whole, as well as of the
parts.
* In cases of coercion of a representative, or the
use of unlawful force or threat of force against a
State, or of conflict with a peremptory norm, the
whole treaty is affected and no separation of
clauses is permitted.
* Where the ground of invalidity is fraud or
corruption affecting a States consent to be bound,
termination must be with respect to the whole
treaty; But where clauses are severable, the
ground invoked may be limited to particular
clauses only. (see Gen. Rule and Exception above)
XI. PROCEDURES IN CASES OF DISPUTE
The ff. are complementary procedural rules for
dealing with disputes:
Art. 65 lays down a requirement of due notice: A
party invokingany defectmust notify in writing
the other parties of its claim, indicating the
measure proposed to be taken and the reasons
therefor.
Art. 33 lists possible means of pacific settlement of
disputes such as negotiation, enquiry, mediation
etc.: If an objection is raised by any other party
against the proposed measure under Art. 65,
parties may seek a solution through means
indicated in Art. 33.
Art. 66 provides a procedure to be followed where
procedures under Art. 65 have produced no
solution within 12 months of the objection: Any
one of the parties may submit the dispute to the
ICJ by written application, when the parties by
common consent agree to submit the dispute to
arbitration
Magallona, A Primer on the Law of Treaties
(1997) (see primer itself)
Vienna Convention on the Law of Treaties, 63
Am J. Intl L 875; 8 DFATS 96 (1969)
Cases:
(1) North Sea, supra
(2) Nicaragua, supra
D. General Principles of Law
Brownlie, Principles of Public International
Law, supra
Cheng, General Principles of Law as Applied
by International Courts and Tribunals (1953)
(NOT AVAILABLE)

29

E. Judicial
Publicists

Decisions

and

Writings

of

Brownlie, Principles of Public International


Law (1985), supra
F. Problems
1. The Question of UN General Assembly
Resolutions
Magallona, Some Remarks on the Legal
Character of the United Nations General
Assembly Resolutions: in International Law
Issues in Perspective (1996)
There are some provisions in the UN Charter that
provide the binding effect of certain resolutions of
the GA even those who voted against. BUT Art 10
provides that the GA may discuss within the scope
of the Charter or relating to the functions and
powers of the UN organs. The legal effect of such
resolutions may depend on specific circumstances
attending each resolution. Landes suggest some
variable affecting effectiveness: (1) fundamental
issues lying at the root of the resolutions; (2) the
time at which the resolution was passed; (3) the
vote taken on the resolution; (4) language of the
resolution; (5)methods and means used by the GA
to implement resolutions; (6) expectations of
member-states
UN GA resolutions are still not in a form of
international legislation. Recommendations may
deal within the scope of the Charter or its powers
and organs of the Charter.
The GA determines the scope at each particular
point in time through the interpretation subject or
embodied in the resolution. Resolutions may be
considered as an authoritative interpretation of
the treaty :
(1) it embodies any subsequent
agreement between the parties regarding the
interpretation of the treaty or the application of
the provisions; (2) it expresses any subsequent
practice
in the application of the treaty w/c
establishes the parties agreement
There is no way w/c a resolution interpreting the
Charter can be assailed constitutionally if the
resolution has been adopted in unanimity or by
consensus. The GA may have gone beyond the
literal terms of the Charter but the Charter is
nothing but what the Member-States say it is. The
collective of coordinated wills of the MemberStates cannot be said to have been exhausted in 1
single expression in the conclusion of the treaty as
a Charter. Rather, such collective expression
continues as a process throughout the lifetime of
that constituent instrument. A declaratory
resolution becomes an institutional means for
registering consensus, at the same time it
constitutes a medium for articulating their
acceptance of the practice as law, or indicating at
the least, the direction of the progressive devt of

law. The consensus operates as a pactum tacitum.


The GA performs the role of applying law in the
intl society.
There are declaratory resolutions whose law
creating or law-declaring character cannot be
adequately explained by an approach to Charter
interpretation for their legal significance is defined
w/in the international customary law (ICL). The
question of how the formation of ICL should be
conceptualized is raised. The conditions for ts
emergence are radically different than before
A declaratory resolution of the GA may have a
moral or political character. But w/in that intl legal
order, it is only in the abstract that it is possible to
distnguish sanction in the technical sense,
directed towards the observance of pre-existing
judicial obligations, fr. political pressure intended
to
compel
a
non-mandatory
conduct
recommended by an intl organization.
In effect, GA resolutions may embody general
principles of law recognized by civilized nations or
may constitute subsidiary means for the
determination of rules if law as used in Art 38 of
the ICJ Statute. Remember that the fundamental
concept of IL as rooted in the agreement of States
(aka consent). Consent is equated w/ formalities
associated with the sources of law, no other
formulation may be seriously treated as law. But
as IL develops, such sources that it recognizes
may change not merely in relative importance, but
in effective existence. More in keeping with the
reality is the attitude that the binding force of all
rules of IL ultimately rests on their consent,
recognition, acquiescence, or estoppel, and as to
States w/c consider themselves bound by given
rules of IL, it is difficult to see why it should not be
treated as such insofar as those States are
concerned.
Cases:
(1) Western Sahara Case (1975) ICJ Reports
Question 1: "Was Western Sahara (Rio de Oro and
Sakiet El Hamra) at the Time of Colonization by
Spain a Territory Belonging to No One (terra
nullius)?"

(paras. 75-83 of Advisory Opinion)

For the purposes of the Advisory Opinion, the


"time of colonization by Spain" may be considered
as the period beginning in 1884, when Spain
proclaimed its protectorate over the Rio de Oro. It
is therefore by reference to the law in force at that
period that the legal concept of terra nullius must
be interpreted. In law, "occupation" was a means

30

of peaceably acquiring sovereignty over territory


otherwise than by cession or succession; it was a
cardinal condition of a valid "occupation" that the
territory should be terra nullius. According to the
State practice of that period, territories inhabited
by tribes or peoples having a social and political
organization were not regarded as terrae nullius:
in their case sovereignty was not generally
considered as effected through occupation, but
through agreements concluded with local rulers.
The information furnished to the Court shows (a)
that at the time of colonization Western Sahara
was inhabited by peoples which, if nomadic, were
socially and politically organized in tribes and
under chiefs competent to represent them; (b)
that Spain did not proceed upon the basis that it
was establishing its sovereignty over terrae
nullius: thus in his Order of 26 December 1884 the
King of Spain proclaimed that he was taking the
Rio de Oro under his protection on the basis of
agreements entered into with the chiefs of local
tribes.

The Court therefore gives a negative answer to


Question I. In accordance with the terms of the
request for advisory opinion, "if the answer to the
first question is in the negative", the Court is to
reply to Question II.

59. The validity of the principle of selfdetermination, defined as the need to pay regard
to the freely expressed will of peoples, is not
affected by the fact that in certain cases the
General Assembly has dispensed with the
requirement of consulting the inhabitants of a
given territory. Those instances were based either
on the consideration that a certain population did
not constitute a people entitled to selfdetermination or on the conviction that a
consultation was totally unnecessary, in view of
special circumstances.

80. Whatever differences of opinion there may


have been among jurists, the State practice of the
relevant period indicates that territories inhabited
by tribes or peoples having a social and political
organization were not regarded as terrae nullius. It
shows that in the case of such territories the
acquisition of sovereignty was not generally
considered as effected unilaterally through
occupation of terra nullius by original title but
through agreements concluded with local rulers.
On occasion, it is true, the word occupation was
used in a non-technical sense denoting simply
acquisition of sovereignty; but that did not signify
that the acquisition of sovereignty through such
agreements with authorities of the country was
regarded as occupation of terra nullius. On the
contrary, such agreements with local rulers,

whether or not considered as an actual cession of


the territory, were regarded as derivate roots of
title, and not originally titles obtained by
occupations of terra nullius.

Question 11: "What Were the Legal Ties of This


Territory with the Kingdom of Morocco and the
Mauritanian Entity?"

(paras. 84-161 of Advisory Opinion)

The meaning of the words "legal ties" has to be


sought
in
the
object
and
purpose
of
resolution 3292 (XXIX) of the United Nations
General Assembly. It appears to the Court that
they must be understood as referring to such legal
ties as may affect the policy to be followed in the
decolonization of Western Sahara. The Court
cannot accept the view that the ties in question
could be limited to ties established directly with
the territory and without reference to the people
who may be found in it. At the time of its
colonization the territory had a sparse population
that for the most part consisted of nomadic tribes
the members of which traversed the desert on
more or less regular routes, sometimes reaching
as far as southern Morocco or regions of presentday Mauritania Algeria or other States. These
tribes were of the Islamic faith.

Morocco (paragraphs 90-129 of the Advisory


Opinion) presented its claim to legal ties with
Western Sahara as a claim to ties of sovereignty
on the ground of an alleged immemorial
possession of the territory and an uninterrupted
exercise of authority. In the view of the Court,
however, what must be of decisive importance in
determining its answer to Question II must be
evidence directly relating to effective display of
authority in Western Sahara at the time of its
colonization by Spain and in the period
immediately preceding. Morocco requests that the
Court should take account of the special structure
of the Moroccan State. That State was founded on
the common religious bond of Islam and on the
allegiance of various tribes to the Sultan, through
their caids or sheiks, rather than on the notion of
territory. It consisted partly of what was called the
Bled Makhzen, areas actually subject to the Sultan,
and partly of what was called the Bled Siba, areas
in which the tribes were not submissive to him; at
the relevant period, the areas immediately to the
north of Western Sahara lay within the Bled Siba.

As evidence of its display of sovereignty in


Western Sahara, Morocco invoked alleged acts of

31

internal display of Moroccan authority, consisting


principally of evidence said to show the allegiance
of Saharan caids to the Sultan, including dahirs
and other documents concerning the appointment
of caids, the alleged imposition of Koranic and
other taxes, and acts of military resistance to
foreign penetration of the territory. Morocco also
relied on certain international acts said to
constitute recognition by other States of its
sovereignty over the whole or part of Western
Sahara, including (a) certain treaties concluded
with Spain, the United States and Great Britain
and Spain between 1767 and 1861, provisions of
which dealt inter alia with the safety of persons
shipwrecked on the coast of Wad Noun or its
vicinity, (b) certain bilateral treaties of the late
nineteenth and early twentieth centuries whereby
Great Britain, Spain, France and Germany were
said to have recognized that Moroccan sovereignty
extended as far south as Cape Bojador or the
boundary of the Rio de Oro.

Having considered this evidence and the


observations of the other States which took part in
the proceedings, the Court finds that neither the
internal nor the international acts relied upon by
Morocco indicate the existence at the relevant
period of either the existence or the international
recognition of legal ties of territorial sovereignty
between Western Sahara and the Moroccan State.
Even taking account of the specific structure of
that State, they do not show that Morocco
displayed any effective and exclusive State
activity in Western Sahara. They do, however,
provide indications that a legal tie of allegiance
existed at the relevant period between the Sultan
and some, but only some, of the nomadic peoples
of the territory, through Tekna caids of the Noun
region, and they show that the Sultan displayed,
and was recognized by other States to possess,
some authority or influence with respect to those
tribes.

The term "Mauritanian entity" (paragraphs 139152 of the Advisory Opinion) was first employed
during the session of the General Assembly in
1974 at which resolution 3292 (XXIX), requesting
an advisory opinion of the Court, was adopted. It
denotes the cultural, geographical and social
entity within which the Islamic Republic of
Mauritania was to be created. According to
Mauritania, that entity, at the relevant period, was
the Bilad Shinguitti or Shinguitti country, a distinct
human unit, characterized by a common language,
way of life, religion and system of laws, featuring
two types of political authority: emirates and tribal
groups.

Expressly recognizing that these emirates and

tribes did not constitute a State, Mauritania


suggested that the concepts of "nation" and of
"people" would be the most appropriate to explain
the position of the Shinguitti people at the time of
colonization. At that period, according to
Mauritania, the Mauritanian entity extended from
the Senegal river to the Wad Sakiet El Hamra. The
territory at present under Spanish administration
and the present territory of the Islamic Republic of
Mauritania thus together constituted indissociable
parts of a single entity and had legal ties with one
another.

The information before the Court discloses that,


while there existed among them many ties of a
racial, linguistic, religious, cultural and economic
nature, the emirates and many of the tribes in the
entity were independent in relation to one
another; they had no common institutions or
organs. The Mauritanian entity therefore did not
have the character of a personality or corporate
entity distinct from the several emirates or tribes
which comprised it. The Court concludes that at
the time of colonization by Spain there did not
exist between the territory of Western Sahara and
the Mauritanian entity any tie of sovereignty, or of
allegiance of tribes, or of simple inclusion in the
same legal entity. Nevertheless, the General
Assembly does not appear to have so framed
Question II as to confine the question exclusively
to those legal ties which imply territorial
sovereignty, which would be to disregard the
possible relevance of other legal ties to the
decolonization process. The Court considers that,
in the relevant period, the nomadic peoples of the
Shinguitti country possessed rights, including
some rights relating to the lands through which
they migrated. These rights constituted legal ties
between Western Sahara and the Mauritanian
entity. They were ties which knew no frontier
between the territories and were vital to the very
maintenance of life in the region.

Morocco and Mauritania both laid stress on the


overlapping character of the respective legal ties
which they claimed Western Sahara to have had
with them at the time of colonization (paragraphs
153-160 of the Advisory Opinion). Although their
views appeared to have evolved considerably in
that respect, the two States both stated at the end
of the proceedings that there was a north
appertaining to Morocco and a south appertaining
to Mauritania without any geographical void in
between, but with some overlapping as a result of
the intersection of nomadic routes. The Court
confines itself to noting that this geographical
overlapping
indicates
the
difficulty
of
disentangling the various relationships existing in
the Western Sahara region at the time of
colonization.

32

Freshman email: BUY/SELL: Quality Unedited VCDs.


Call Ed, 0919-3697487. "Ed saw, and it was good.
(2) Texaco Overseas Petroleum vs. Libyan
Arabic Republic, 17 Intl Legal Mat (1978)
This
specific
paragraph
concerning
nationalizations,
disregarding
the
role
of
international law, not only was not consented to
by the most important Western countries, but
caused a number of the developing countries to
abstain.
--Resolution 3201 (S-VI) was adopted without a
vote by the General Assembly, but the statements
made by 38 delegates showed clearly and
explicitly what was the position of each main
group of countries. The Tribunal should therefore
note that the most important Western countries
were opposed to abandoning the compromise
solution contained in Resolution 1803 (XVII).

--The conditions under which Resolution 3281


(XXIX), proclaiming the Charter of Economic Rights
and Duties of States, was adopted also show
unambiguously that there was no general
consensus of the States with respect to the most
important provisions and in particular those
concerning nationalization. Having been the
subject matter of a roll-call vote, the Charter was
adopted by 118 votes to 6, with 10 abstentions.
The analysis of votes on specific sections of the
Charter is most significant insofar as the present
case is concerned. From this point of view,
paragraph 2 (c) of Article 2 of the Charter, which
limits consideration of the characteristics of
compensation to the State and does not refer to
international law, was voted by 104 to 16, with 6
abstentions, all of the industrialized countries with
market economies having abstained or having
voted against it.
86. Taking into account the various circumstances
of the votes with respect to these Resolutions, this
Tribunal must specify the legal scope of the
provisions of each of these Resolutions for the
instant case.
A first general indication of the intent of the
drafters of the Charter of Economic Rights and
Duties of States is afforded by the discussions
which took place within the Working Group
concerning the mandatory force of the future text.
As early as the first session of the Working Group,
differences of opinion as to the nature of the
Charter envisaged gave rise to a very clear
division between developed and developing
countries. Thus, representatives of Iraq, Sri Lanka,
Egypt, Kenya, Morocco, Nigeria, Zaire, Brazil,
Chile, Guatemala, Jamaica, Mexico, Peru and
Rumania held the view that the draft Charter
should be a legal instrument of a binding nature
and not merely a declaration of intention.

On the contrary, representatives of developed


countries, such as Australia, France, Federal
Republic of Germany, Italy, Japan, United Kingdom
and United States expressed doubt that it was
advisable, possible or even realistic to make the
rights and duties set forth in a draft Charter
binding upon States (Report of the Working Party
on its 1st Session, U.N. Doc. TD/B/AC. 12/1 (1973),
at 6).
The form of resolution adopted did not provide for
the binding application of the text to those to
which it applied, but the problem of the legal
validity to be attached to the Charter is not
thereby solved. In fact, while it is now possible to
recognize that resolutions of the United Nations
have a certain legal value, this legal value differs
considerably, depending on the type of resolution
and the conditions attached to its adoption and its
provisions. Even under the assumption that they
are resolutions of a declaratory nature, which is
the case of the Charter of Economic Rights and
Duties of States, the legal value is variable.
Ambassador Castaneda, who was Chairman of the
Working Group entrusted with the task of
preparing this Charter, admitted that "it is
extremely difficult to determine with certainty the
legal force of declaratory resolutions", that it is
"impossible to lay down a general rule in this
respect", and that "the legal value of the
declaratory resolutions therefore includes an
immense gamut of nuances" ("La Valeur Juridique
des Resolutions des Nations Unies", 129 R.C.A.D.I.
204 (1970), at 319-320).
As this Tribunal has already indicated, the legal
value of the resolutions which are relevant to the
present case can be determined on the basis of
circumstances under which they were adopted and
by analysis of the principles which they state:
--With respect to the first point, the absence of any
binding force of the resolutions of the General
Assembly of the United Nations implies that such
resolutions must be accepted by the members of
the United Nations in order to be legally binding. In
this respect, the Tribunal notes that only
Resolution 1803 (XVII) of 14 December 1962 was
supported by a majority of Member States
representing all of the various groups. By contrast,
the other Resolutions mentioned above, and in
particular those referred to in the Libyan
Memorandum, were supported by a majority of
States but not by any of the developed countries
with market economies which carry on the largest
part of international trade.
87. (2) With respect to the second point, to wit the
appraisal of the legal value on the basis of the
principles stated, it appears essential to this
Tribunal to distinguish between those provisions
stating the existence of a right on which the

33

generality of the States has expressed agreement


and those provisions introducing new principles
which were rejected by certain representative
groups of States and having nothing more than a
de lege ferenda value only in the eyes of the
States which have adopted them; as far as the
others are concerned, the rejection of these same
principles implies that they consider them as
being contra legem. With respect to the former,
which proclaim rules recognized by the community
of nations, they do not create a custom but
confirm one by formulating it and specifying its
scope, thereby making it possible to determine
whether or not one is confronted with a legal rule.
As has been noted by Ambassador Castaneda,
"[such resolutions] do not create the law; they
have a declaratory nature of noting what does
exist" (129 R.C.A.D.I. 204 (1970), at 315).
On the basis of the circumstances of adoption
mentioned above and by expressing an opinio juris
communis, Resolution 1803 (XVII) seems to this
Tribunal to reflect the state of customary law
existing in this field. Indeed, on the occasion of the
vote on a resolution finding the existence of a
customary rule, the States concerned clearly
express their views. The consensus by a majority
of States belonging to the various representative
groups indicates without the slightest doubt
universal recognition of the rules therein
incorporated, i.e., with respect to nationalization
and compensation the use of the rules in force in
the nationalizing State, but all this in conformity
with international law.
88. While Resolution 1803 (XVII) appears to a large
extent as the expression of a real general will, this
is not at all the case with respect to the other
Resolutions mentioned above, which has been
demonstrated previously by analysis of the
circumstances of adoption. In particular, as
regards the Charter of Economic Rights and Duties
of States, several factors contribute to denying
legal value to those provisions of the document
which are of interest in the instant case.
--In the first place, Article 2 of this Charter must
be analyzed as a political rather than as a legal
declaration concerned with the ideological
strategy of development and, as such, supported
only by non-industrialized States.

--In the second place, this Tribunal notes that in


the draft submitted by the Group of 77 to the
Second Commission (U.N. Doc A/C.2/L. 1386
(1974), at 2), the General Assembly was invited
to adopt the Charter "as a first measure of
codification and progressive development" within
the field of the international law of development.
However, because of the opposition of several
States, this description was deleted from the text
submitted to the vote of the Assembly. This
important modification led Professor Virally to

declare:

"It is therefore clear that the Charter is not a first


step to codification and progressive development
of international law, within the meaning of Article
13, para. 1 (a) of the Charter of the United
Nations, that is to say an instrument purporting
to formulate in writing the rules of customary law
and intended to better adjust its content to the
requirements of international relations. The
persisting difference of opinions in respect to
some of its articles prevented reaching this goal
and it is healthy that people have become aware
of this." ("La Charte des Droits et Devoirs
Economiques des Etats. Notes de Lecture", 20
A.F.D.I. 57 (1974), at 59.)
The absence of any connection between the
procedure of compensation and international law
and the subjection of this procedure solely to
municipal law cannot be regarded by this Tribunal
except as a de lege ferenda formulation, which
even appears contra legem in the eyes of many
developed countries. Similarly, several developing
countries, although having voted favorably on the
Charter of Economic Rights and Duties of States as
a whole, in explaining their votes regretted the
absence of any reference to international law.
89. Such an attitude is further reinforced by an
examination of the general practice of relations
between States with respect to investments. This
practice is in conformity, not with the provisions of
Article 2 (c) of the above-mentioned Charter
conferring exclusive jurisdiction on domestic
legislation and courts, but with the exception
stated at the end of this paragraph. Thus a great
many investment agreements entered into
between industrial States or their nationals, on the
one hand, and developing countries, on the other,
state, in an objective way, the standards of
compensation and further provide, in case of
dispute regarding the level of such compensation,
the possibility of resorting to an international
tribunal. In this respect, it is particularly significant
in the eyes of this Tribunal that no fewer than 65
States, as of 31 October 1974, had ratified the
Convention on the Settlement of Investment
Disputes between States and Nationals of other
States, dated March 18, 1965.
90. The argument of the Libyan Government,
based on the relevant resolutions enacted by the
General Assembly of the United Nations, that any
dispute
relating
to
nationalization
or
its
consequences should be decided in conformity
with the provisions of the municipal law of the
nationalizing State and only in its courts, is also
negated by a complete analysis of the whole text
of the Charter of Economic Rights and Duties of
States.

34

From this point of view, even though Article 2 of


the Charter does not explicitly refer to
international law, this Tribunal concludes that the
provisions referred to in this Article do not escape
all norms of international law. Article 33,
paragraph 2, of this Resolution states as follows:
"2. In their interpretation and application, the
provisions of the present Charter are interrelated
and each provision should be construed in the
context of the other provisions". Now, among the
fundamental elements of international economic
relations quoted in the Charter, principle (j) is
headed as follows: "Fulfillment in good faith of
international obligations".
Analyzing the scope of these various provisions,
Ambassador Castaneda, who chaired the Working
Group charged with drawing up the Charter of
Economic Rights and Duties of States, formally
stated that the principle of performance in good
faith of international obligations laid down in
Chapter I(j) of the Charter applies to all matters
governed by it, including, in particular, matters
referred to in Article 2. Following his analysis, this
particularly competent and eminent scholar
concluded as follows:
"The Charter accepts that international law may
operate as a factor limiting the freedom of the
State should foreign interests be affected, even
though Article 2 does not state this explicitly. This
stems legally from the provisions included in other
Articles of the Charter which should be interpreted
and applied jointly with those of Article 2." ("La
Charte des Droits et Devoirs Economiques des
Etats. Note sur son Processus d'Elaboration", 20
A.F.D.I. 31 (1974), at 54.)

91. Therefore, one should note that the principle of


good faith, which had already been mentioned in
Resolution 1803 (XVII), has an important place
even in Resolution 3281 (XXIX) called "The Charter
of Economic Rights and Duties of States".
2. Unilateral Acts of States
Skubiswezski, Unilateral Acts of States
Shortcuts:
UA Unilateral Act
UD Unilateral Declaration
I. INTRODUCTION
Why are UAs impt in the intl community?
Because
1 Despite limitations by commands of intl
law, there still exists a domain where
States have exclusive competence, in
which they are free to act according to
their natl policies & arrive unilaterally at
decisions which affect their relations with
other States;
2 Customary & treaty rules provide a place

for unilateral acts in various legal


processes & authorize such acts in diff.
situations
Scope of Skubiszewskis article: only those UAs
that produce legal effects & are legally relevant in
intl relations
A UA of a State does not constitute a source of IL.
The fact that some UAs
have binding nature
are non-revocable
often influence the operation of sources of
law
are at the origin of customary rules and
treaty-making
does not confer upon UAs the status of a
source of law. They can give birth to legal
rights, obligations or relationships but this is
not the same as being a source of law.
II. LEGALLY RELEVANT UNILATERAL ACTS OF
STATES
Categories of UAs:
1 UAs in the nature of admissions relating to
various facts or matters that have relevance in IL
have bearing on application of, but do not
create, rights, obligations or legal regimes;
may define manner by which State will
interpret & exercise its existing rights &
duties
ex., State may admit it has certain duties
under IL, recognize validity of intl legal
instrument, declare that it recognizes a
claim of another State etc.
2 UAs that accept an intl legal obligation towards a
specific State, all States or towards other subjects
of IL (IOs)
as a result, addressee acquires a
corresponding right
3 UAs that create, modify or terminate intl legal
relationships, regime or status
4 As to degree of autonomy possessed by UAs:
-

UA whose final aim is to bring into


existence an act that is not unilateral (i.e.,
ratification of a treaty)
UA whose final aim is to produce legal
effects that are free of any link or relations
to a legal transaction in which another
State/s participates

III. DIFFERENT MANIFESTATIONS OF UNILATERAL


ATTITUDES
By Words
usually in the nature of statements or
declarations
made publicly known or communicated to
a specific addressee
may be oral or in writing
By Conduct
Representatives of States may not say or write
anything, but they may display an attitude by
various kinds of actions initiating, reacting to
activity of another state or remaining passive.
In certain situations, inaction is evidence of the
conduct of a State silence, absence of reaction,

35

acquiescence will occasionally have some legal


consequences.
IV. SOME CATEGORIES OF UNILATERAL ACTS
1. Unilateral Act as an Instrument
A. Declaration
can have any content; not limited to
stating something already existing, but
can create a new state of things
may be oral or written; if oral, usually
recorded into writing
may concern all States or may have
specific addressee/s
Some examples of UDs with legal effects (see
article for more examples):
The Ihlen Declaration Norwegian
Minister
for
Foreign
Affairs
Ihlens
declaration re: Danish sovereignty over
the whole of Greenland
UDs individually terminating state of war
with Germany bet. 1951-1955 in view of
the absence of a peace treaty with
Germany
Nuclear Test Cases France expressing
undertaking not to hold further nuclear
tests in the South Pacific
B. Notification
* Deftn: an act whereby one States informs
officially another State/s or IO of a fact, situation,
action or instrument.
* Purpose: To bring its contents to the official
knowledge of the addressee
* Effect: Addresses cannot invoke ignorance of
what has been notified, but may refuse recognition
of the notified fact etc.
Some examples of Notification (see article for
more examples):
Austria notifying all states as to its
permanent neutrality
Instances where general or treaty law
impose a duty of notification state of
war to be notified to neutral powers,
notification of declaration of naval
blockade etc.
2. Unilateral Act from the Standpoint of its Content
& Effect
A. Recognition
most impt unilateral legal act, finds wide
application in view of various situations
calling for recognition (birth of States, nonconstitutional change of govts etc.)
an action of those organs which represent
State in its external relations
vs. cognizance (def) an act of another
domestic organ, which consists in taking
note of a situation calling for recognition
and in allowing consequences to follow
therefrom within the domestic sphere of
competence of that organ not binding
on executive & is not recognition in intl
legal sense
acquiescence & silence may lead to
implied recognition

* Effect: Recognizing State cannot contest what


it has recognized.
B. Protest
* Deftn: an act whereby the State expresses its
opposition to a situation, claim, or generally, a
state
of
things
and
the
ensuing
legal
consequences.
* Purpose: [if anticipatory protest] To influence
the conduct of the addressee
* Effect: What is protested is brought into
question in the relations bet. the States
concerned.
Protest involves non-recognition but mere nonrecognition does not automatically amount to a
protest.
Protest must be explicit, maintained, and should
manifest itself in an active attitude. There must be
actual assertion of the position that finds
expression in the protest. A protest that is isolated
& is not repeated may lose its original effect.
Re: Effect of silence or failure to react No
general rule. There are some situations that call
for a reaction if some legal consequence is to be
avoided, while there are other situations where
silence does not prejudge anything.
C. Promise
* Deftn: an act whereby the State making it,
binds itself unilaterally to follow a certain course of
conduct.
* Requirement: an act whose effect does not
depend on the attitude of another State/s A
promise that is made in response to a demand by
another States, or made to secure its acceptance
by another State, or one which is made conditional
upon a reciprocal promise by another State is not
a unilateral promise.
D. Waiver
* Deftn: an act whereby the State gives up its
claim, right, competence, or power which
consequently cease to exist.
* Effect: Once made, is irrevocable. Waiver
produces its effect solely by virtue of the decision
of the renouncing State. Hence, if a waiver is
stipulated in a treaty, it loses its unilateral
character because its effect depends on the
treatys entry into force.
Waiver is not legally possible if the right,
competence or power is connected with a duty. It
cannot be presumed or inferred but implicit
renunciation is possible, provided it is unequivocal.
Non-exercise of a right, competence or power
does not amount to a waiver.
V. VALIDITY OF UNILATERAL ACTS
To be valid, any UA must:
1 conform to
substantive rules of IL
treaty commitments of their authors
enabling rule of law & requirements it lays
down, if the UA has been provided for or
authorized by custom or treaty
2 express the true intention of its author
UAs obtained by error, fraud, corruption of a
State representative are voidable, while those

36

which result from coercion are void.


3 be done by organ that has the power to speak in
the name or the State, generally or in a particular
field or matter, on the plane of IL (Competence).
Authority may be given
expressly
by general law, which considers various
State organs as competent i.e., heads of
States, ministers for foreign affairs etc.
Gen Rule: The addressee of the act cannot be
expected to inquire to deeply into matters of
internal powers & domestic law whenever
circumstances point to the competence of the
organ in a particular area. The addressee can
invoke the principle of good faith in
considering the organ as authorized.
Exception: Where the violation of the domestic
law was manifest and concerned a rule of
fundamental importance.
VI.BINDING FORCE OF UNILATERAL ACTS
Rule: The intention of the State is decisive the
State is bound by its unilateral act because such
has been its intent.
Specific rules:
If act is based on customary or treaty rule, it is in
that rule that one must look for the legal effects of
the act, including its binding force.
If act is not based on customary or treaty rule,
the State is granted more latitude. (?)
Principle of Good Faith
* Deftn: imposes upon the State the duty to
conform to its intention and to abide by the
unilateral act, though the act remains its own
creation
* Effect: governs effects of the act the moment
the act has been made public or has been
communicated to interested State/s. State cannot
anymore invoke its freedom of conduct.
The foundation of an acts binding force is not
any agreement with the States concerned, nor
offer and acceptance resulting in a contractual
relationship. The reliance on the unilateral act by
the interested State influences its application.
Agreement may decide questions of revocability
but it does not confer binding force upon an act.
VII. OPPOSABILITY OF UNILATERAL ACTS
* Deftn: an act is opposable to another State
when the act constitutes a restriction on the
latters freedom of action, andthe latter is
obliged to take cognizance of the act, to bring its
conduct into line with the act, and/or accept the
effects of the act and submit to them.
UAs cannot impose obligations on other States
but it can activate certain duties that these States
have under general IL or treaties. especially
because various matters in intl life are left by
custom & treaties to unilateral decisions by the
interested or competent State
when this happens, the duties of a State
can be traced to the UA of another State
and in this sense, the act is opposable to
the former

* Requirement: act must be known to the State


act either notorious or notified to the State
VIII. MODIFICATION & REVOCABILITY OF
UNILATERAL ACTS
Gen Rule: The State can modify or revoke its
unilateral act at will and at any time. This capacity
is presumed and need not be reserved.
Exception: When UA is governed by general IL or
treaties
Example of UA governed by general IL:
recognition de jure of a State or govt
once granted, cannot be withdrawn
When governed by treaties: revocability is
governed by the relevant treaties which
may impose some limitations
States enjoy more latitude in the modification &
revocation of acts not governed by customary or
treaty rules
Gen Rule: Principle of good faith speaks in
favor of maintenance of the act if another
State relies upon the act in its relations
with the acts author. There is room for
reliance on the act when its contents,
nature or purpose do not show that the
author of the act has kept his full freedom
of action. To the extent such reliance has
been established, the State is estopped
from modifying or revoking.
Exceptions [when revocable]: impossibility
of performance, fundamental change of
circumstances, emergence of a new
peremtory norm.
Case:
Nuclear Test Cases (1976)
France carried out nuclear atmospheric tests in the
territory of the French Polynesia in the years 196668 and 1970-72.
main firing site was the Mururoa Atoll,
6,000km east of the Australian mainland
Australia claims: French tests caused some fall out
of radioactive matter to be deposited in Australian
territory.
France
contends:
Radioactive
matter
so
infinitesimal and negligible that it does not
constitute any danger to the health of Australians.
In May 1973, Australia instituted proceedings
against France in the ICJ, asking the Court to:
adjudge & declare that the tests in the
South Pacific are not consistent with
applicable rules of IL; and
order France not to carry out further tests
France, in letter, said the ICJ did not have
jurisdiction & requested that the case be removed
from the list of the Court.
On June 22, 1973, the ICJ issued an order

37

indicating interim measures that France should


avoid further nuclear tests that cause fall out in
Australian territory.
Australia pointed out that even after this
order, France continued to perform
subsequent series of tests in the Pacific
Prior to and subsequent to the oral proceedings
before the ICJ, several authoritative statements
were made by the French government concerning
its intention as to future nuclear testing in the
South Pacific:
a. Communique issued by the Office of the
President of France, copy transmitted to
Australia (June 8, 1974) in view of
the stage reached in carrying out the
French nuclear defence programme,
France will be in a position to pass on to
the stage of underground explosions as
soon as the series of tests planned for this
summer is completed
b. Note from the French Embassy in
Wellington to New Zealand Ministry of
Foreign Affairs (June 10, 1974) Thus
the atmospheric tests which are soon to
be carried out will , in the normal course of
events, be the last of this type.
c. Letter from the President of France to the
Prime Minister of New Zealand (July 1,
1974)
d. Press Conference by the President of
France (July 25, 1974) I had myself
made it clear that this round of
atmospheric tests would be the last, and
so the members of the Govt were
completely informed of our intentions in
this respect
e. Speech made by the French Minister for
Foreign Affairs beore the UN Gen.
Assembly (Sept.25, 1974)
f. Television interview and press conference
by the Minister of Defense of France (Aug
11 and Oct 11, 1974)
Issue: WON a dispute exists so as to require
judgment from the ICJ - None
Held (by vote of 9-6):
1. The original and ultimate objective of Australia
is to obtain a termination of the nuclear tests.
(32-41)
2. France, by various public statements made in
1974, has announced its intention to cease the
conduct of such tests, following the completion of
the 1974 series of atmospheric tests. ( 32-41)
3. The objective of Australia has in effect been
accomplished, inasmuch as France has undertaken
the obligation to hold no further nuclear tests in
the South Pacific. (47-52)
4. The dispute has thus disappeared and there is
nothing upon which the Court can give judgment.
(55-59)

Other arguments:
1. A judgment would reinforce the position of
Australia in affirming the obligation of France.
ICJ: France has assumed an obligationno further
judicial action is required. Any further finding
would have no raison detre.
2. ICJ may select cases submitted to it which it
feels suitable for judgment and reject others.
ICJ: Art. 38 says the Court can exercise its
jurisdiction in contentious proceedings only when
a dispute genuinely exists bet. parties. In
refraining from further action in this case, the
Court is only acting in accordance with the proper
interpretation of its judicial function. Needless
continuance of litigation is an obstacle to harmony.
Note: Same ruling in Nuclear Test Case between
New Zealand and France.
Important paragraphs summarized:
24 The question that is essentially preliminary is
the existence of a dispute. The resolution of this
question exerts a decisive influence on the
continuation of the proceedings.
43 Unilateral acts may have the effect of
creating legal obligations. The intention of the
State to become bound according to the terms of
the declaration, confers on the declaration the
character of a legal undertaking, the State
thenceforth legally required to follow a course of
conduct consistent with the declaration. The
undertaking, if made publicly and with intent to be
bound, is binding. There is nothing else required
for the declaration to take effect.
44 Intention should be ascertained by
interpretation of the act.
45 Form is not decisive. The only relevant
question is whether the language employed
reveals a clear intention.
46 The binding character of an intl obligation
assumed by unilateral declarations is based on
good faith. Thus, interested States may take
cognizance of unilateral declarations and place
confidence in them, and are entitled to require
that the obligation thus created be respected.
3. Falk An Argument to Expand the
Traditional Sources of International Lawwith Special Reference to the Facts of the
South West Africa cases (1970)
I. Falks Theses:
Art 38 (1)- multilateral treaties should be
liberally interpreted to include w/in its sphere the
resolutions passed by the UN GA, especially those
made on a continuous basis and by near
unanimous vote.
Ratio: UN is created by a treaty, thus its
acts should likewise fall under this category.
II. Contra-argument: The GA is without any powers
to make International Laws

38

III. Factual background


Southwest Africa (SWA), now Namibia during the
Mandela days, was ruled by the white
administration by virtue of a Mandate handed to it
by the League of Nations and later on carried over
by the UN.
One provision of this Mandate states that the SWA
govt shall promote to the utmost the material &
moral well-being of the inhabitants therein. In view
of the apartheid policy adopted by such govt, the
GA continually and near unanimously passed
resolutions condemning such practice.
Ethiopia
and
Liberia
subsequently
filed
applications for the enforcement of the wellbeing provisions of the mandate using the UN GA.
Resolutions as the standard of interpretation i.e.
since the GA says apartheid is bad, then it must be
bad. The ICJ dismissed their claims for lack of legal
standing w/out ruling on the legality of the
apartheid policy. In short, ICJ said that what the UN
GA said is nothing.
Falk picks up the cudgels for Ethiopia and Liberia
and argues that UN GA Resolutions could in fact
serve as valid norms vs which the well-being
provisions of the mandate can be interpreted.
Preliminarily, Falk states that Art 38 is not an
exhaustive list of the sources comprising the
totality of the IL. It is rather a directive to the ICJ to
decide disputes before it in the light of these
sources.
The following are his arguments for the inclusion
of the UN GA Resolution within Art 38
enumeration:
Art 38 (a) Intl Conventions
-The mandate is an intl convention w/c came
under the auspices of the League of Nations, thus
the UN Resolutions pertaining to its provisions
should likewise be deemed as part of the
mandate.
-The UN GA Resolutions could also qualify as
interpretations of Human Rights provisions of the
Charter. These provisions are capable of
generating binding rules of IL and should have the
same force and effect as the Charter itself.
-Falk argues that the ICJ is w/out competence to
exercise judicial reviews over the legality of these
resolutions and should merely apply them as per
se IL on non-discrimination because they are value
judgment of the organized intl community w/c the
court cannot judge w/o making value judgment
themselves, a task for w/c the Court could not find
any applicable criteria to use.
Art 38(b) Intl Custom
-Falk: granting that the resolutions are not per se
binding, still the body of resolutions as a whole

undoubtedly provide rich source of evidence of


customary rule or norm v apartheid.
-Contra: One of the arguments relied upon by SWA
was the dicta contained in the Fisheries and
Asylum Cases namely that a State is not deemed
bound or exempt from the binding effects of any
customary rule if it had persistently and actively
made known its objection v the rule even at its
inception.
-Falkss response; The cited dicta, w/their
traditional listing of uniform practice, subjective
motive of compliance, etc, apply only the
customary rules arising out of practice of states
and not out of the norm setting procedures of the
organized intl community. Fisheries and Asylum
deal with the problem of adjusting competing
interests of States rather than enforcing world
community standards vs a dissenting stat. It is
precisely because there is an offender that there
is a drive to create a norm and if that offender is
allowed to prevent the legal condition of his action
by starting a protest, the IL is rendered impotent
in the face of the gravest challenges to the values
underlying the entire global order.
Art 38(c) General Principles of Intl Law
-The ICJ in its advisory opinion in the Reservation
to the Convention on the Prevention the Genocide
case ruled that genocide is contrary to IL. The
basis of the ruling was a UN GA Resolution which
condemned the practice long before the
convention came into force.
Since it is under this heading that the ICJ has
consistently introduced considerations of equity
and justice into its legal argument, at the very
least, this should have been used for the
interpretation of the Mandate. The substantial
repercussions between the subject matters
involved are certainly not different since they both
shock the conscience of mankind and ignore
minimum expectations about the intent of human
decency.
In sum, the ICJ should have ruled that the UN GA is
competent to generate norms of Il in the area of
human rights if it acts on the basis of virtual
unanimity. If the ICJ repudiates the norm of nondiscrimination after it had been so frequently
posited as authoritative by the organized intl
community, then it will create impression that the
intl judicial process is aloof from the share values
and policies of mankind.
IV. The Deans comments
With regard to the binding effects of the acts of
the organs of the UN, a distinction should be made
between the UN SC (Security Council) and the UN
GA Resolutions to wit:
UNSC Resolutions- these are always under IL under

39

Art 38 as authorized by Chapter 7 of the UN


Charter and binding on all members because the
UN SC is supposed to act on behalf of the whole
membership.
UN GA Resolutions these could either be IL or
mere recommendation depending on whether they
are construed under the Vienna Convention or the
Charter.
VC- Art3 in relation to Art 31 par 1 provides that
agreements and practices of parties form part of
the context. The UN GA declaration of Human
Rights could fall under this category.
UN Charter- under Art 10, UN GA Resolutions are
mere recommendations, thus not NIL.
The status therefore of any UN GA
Resolutions would really depend on the framework
(to suit ones needs).
V. Subjects of International Law
A. In General
Mugerwa, Subjects of International Law
The following subjects of law lack one or the other
of the essential requirements of sovereign state
(governmental authority, population, territory,
sovereignty esp in external relations)
DIMINUTIVE STATES
not typical full subjects of IL
dependent on to a greater or lesser extent
on a third state, esp. for the conduct of
their foreign relations
not members of UN
while possessing a defined territory, govt
and population, they do not possess the
full capacity to enter into foreign relations
examples: Andorra, Monaco, Liechtenstein,
San Marino
COLONIES,
CERTAIN
SELF-GOVERNING
TERRITORIES, PROTECTORATES
Colonies: internal and external sovereignty
is completely vested in the metropolitan
country. Together, they form a unit in IL
which continues as such until it suffers
reduction in size by the assumption on the
part of the dependent territory of full
responsibility. But this does not mean that
dependent people have no rights or that
they have no capacity to assume
obligations under it.
Some territories enjoy varying degrees of
internal autonomy, the metropolitan
country retaining control only of their
external relations or defense. But if such
colony
has
capacity
to
undertake
obligations,
which
are
normally
undertaken, by sovereign states like
entering into treaties, it may attract some

rules of IL and thus becomes subject of IL.


Protectorates: similar to a self-governing
colony (ex. Bhutan, Sikkim)
Usually retains or subsequently acquired a
large measure of independence in the
management of their internal affairs and
to some extent, foreign relations.
The subjects of protectorates/other forms
of
non-fully
independent
states
is
increasingly becoming of a merely
academic significance. Many have gained
independence. UN proclaimed the need to
bring speedy end to colonialism.

TRUST TERRITORIES
Question of Intl Personality has become
academic since these territories have
gradually acceded to full sovereign
independence except South West Africa.
The question of intl personality is bound
up with the question of where sovereignty
in such territory is vested.
Generally Accepted View: these territories
stand in a category apart by reason of the
international system which brought them
into existence, and for that reason they
possess
a
degree
of
international
personality even in those cases where
their inhabitants enjoy no authority over
the conduct of the internal and external
affairs of their territories.
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BELLIGERENT PARTIES
insurrection remains internal affair as long
as established govt
retains power to
control situation
when
insurrection
takes
on
such
proportions that the established govt is
no longer in a position to fulfill any state
responsibility,
different
considerations
arise which are the proper concern of IL
It often happens that (i) there exists w/in
the state an armed conflict of a general
character
(ii)
insurgents
occupy
a
substantial portion of natl territory and
(iii) they conduct the hostilities in
accordance with rules of war. In such a
case, there is present the necessary basis
for the recognition of the emergence of a
subject of IL to which belligerent rights
may be accorded.
This state of facts must be first formally
acknowledged before it can have effect
between state and the belligerent.
INSURGENTS
Where rebellious forces do not have
effective control over any substantial
portion of territory and are w/out
organized chain of command, other states
are in strict law entitled to disregard the

40

insurgents.
In practice, other states may and do
conduct their relations w/ the insurgents in
accordance with the rules of IL governing
neutrality and belligerency thus making
the insurgents subjects of some rules of IL
and thus subjects of IL.

INDIVIDUALS: ARE THEY SUBJECTS OF IL?


different views:
subjects of IL
subjects of IL but that subjectivity is not
possible without intervention of state of
that individual
failure to distinguish bet recognition of
rights enuring to the benefit of the
individual and enforceability of these
rights
incapacity to take steps to enforce his own
rights does not signify that he is not
subject of IL (analogy to infants who have
rights)
Present view
Generally speaking, individuals lack the procedural
capacity
to
espouse
their
claims
before
international tribunals and such claims can be
entertained only at the instance of the state of
which the individual is a national or in certain
circumstances by the international institution of
which he is a servant.
Characteristic trend of modern development of IL
is the granting of procedural capacity to
individuals for the protection of certain welldefined rights.
Cheng,
Introduction
to
Subjects
of
International Law
I. International Legal Personality
Subjects of International Law, also known as
international persons, are entities that are
endowed with international legal personality,
which is the capacity to bear rights and duties
under the international legal system.
They are the direct addressees of the rules of
international law. Thus,
1) Rights and duties have to be those under IL

Entities
enjoying
legal
personality in one or even several
systems of municipal law do not
necessarily enjoy legal personality in IL,
and vice versa.

In the Reparation for Injuries


Suffered in the Service of the United
Nations case, the ICJ had to find indices
of the intention of member states to
confer legal personality on the UN.
Based on the UN Charter, they
concluded that it was the necessary
intendment of such states to do so.

Existence or absence of legal


personality is based on concrete indices
of actual possession of rights and duties

under IL.
2) Legal rights and duties, not mere benefits
and burdens
3) Subject must be the direct and intended
addressee of the rights and duties

Rules are often stated in such a


manner that they transpose the rights
and duties from the subjects of the law
to the objects concerned.

What may appear to be rights


belonging to some inanimate objects
under rules of IL are in reality rights
belonging to States Parties to which
these objects internationally belong, and
not rights of these inanimate objects
themselves (e.g. right of innocent
passage under Art 17 of the UNCLOS).
II. Acquisition and Loss of International Legal
Personality
An international legal system requires a
minimum
of
two
parties,
who
acquire
international legal personality through mutual
recognition of each others capacity to enter into
such a relationship.
International legal systems can be created ad
hoc (e.g. agreements concluded between
international persons and private entities, called
quasi-international law).
The subjects of IL are its own lawmakers and
judges. WON a new member will bear legal
rights and duties under this system is dependent
on the mutual consent of existing members to
grant the former such a status.
In the absence of clear evidence of a rule to the
contrary having emerged, legal personality
remains essentially subjective and consequently
relative (e.g. UN as an entity possessing
objective international personality with respect
to a non-member state in the Reparation case).
Test of WON an entity possesses international legal
personality, if such has not been granted expressly
or impliedly: possession in fact of rights and duties
under IL.
B. States
1. General View
Broms, States
I. Criteria of a State
Taken from the Art 1 of the Montevideo
Convention and also found in subsequent
documents which have included definitions of
the State.
1)
Permanent population, though some
entities without permanent populations have
been recognized as States due to the nature
of such entity or its geographical position
which may be such that people cannot
permanently reside in the territory.
2)
Defined territory boundaries may be
disputed, but there must be a basic territory.

41

3)

Organized
government
that
should
function at all times
4)
Capacity to enter into treaties a latent
capacity which depends on the acceptance
of other States
Problem: no specific organ that determines by a
binding decision WON an entity meets the
requirements of statehood
II. Effect of Membership in the UN
Admission to the UN recognition of statehood
Art 4, par 1 of UN Charter: membership in the
UN is open to all peace-loving States which
accept the obligations contained in the present
Charter and, in the judgment of the
Organization, are able and willing to carry out
these obligations.
Statehood is the basic condition to which the
other criteria are attached.
Broms submits that, based on UN practice,
statehood is a condition sine qua non to
admission. It is not by itself, however, a
guarantee of admission.
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III. Recognition of States


The term signifies the decision of the
government of an already existing state to
recognize another entity as a state.
There is no principle of international law which
would oblige a State to grant recognition to a
new entity even if it would possess the criteria
which are normally required.
IV. Classification of States
1) Federal states and confederations
The Federal Union represents the entity as a
whole
Distinguished from confederations: the
power of central government does not
extend to the citizens of entities forming a
confederation;
States
forming
a
confederation do not lose their internal and
external sovereignty
2) Personal Unions and Real Unions

Have
historical,
rather than
actual, importance

Personal Union union between


two States under the same ruler; States
remain independent

Real Union based on an


agreement between two monarchies which
agree to have the same hereditary ruler
3) Protectorates
Status created by a weak state entering into

treaty with another State for protection.


3 types: protected state, international
protectorates, colonial protectorates
4) The Holy See
Italy recognized the sovereignty of the Holy
See under the name of the Vatican in the
Lateran Treaty.
The territory of the Vatican was declared to
be
neutral
and
inviolable
in
all
circumstances.
A
member
of
various
international
organizations, but has never applied for
membership in the UN.
5) Permanently Neutral States
A state that has bound itself to remain
neutral in any wars between other States.
Not allowed to enter into such military
alliances that could jeopardize its neutrality
should a state of war break out.
Status of permanent neutrality is always
based on the consent of the State in
question.
6) Micro-States
Characteristic feature is minimal territory
(e.g. Liechtenstein, Monaco, San Marino
V. The Doctrine of Fundamental Rights and Duties
Proposed by natural rights theorists: right to
independence,
local
jurisdiction,
selfdefence in against an armed attackduty to
respect human rights, pacta sunt servanda,
etc.
Legal value: has made States more willing
to accept the paramountcy of international
legal rules. It has, however, been used to
limit the sovereignty of States (e.g. loser
States in the Peace Treaties of Paris
concluded at the end of WWII).
Doctrine cannot be accepted because
fundamental
rights
do
not
have
corresponding duties.
Instead, legal
conclusions as to the nature of the
relationship between the members of the
international community will have to be
drawn on the basis of an in casu
examination
taking
the
special
circumstances into account.
Article made special mention of the principle
of peaceful cooperation, which evolved into
the Declaration on Principles of International
Law Concerning Friendly Relations among
States (please refer to UN Charter).
VI. The Principle of Sovereign Equality of States
Recognized in the second paragraph of the UN
Charters preamble: the equal rightsof
nations large and small.
The author submits that such statement
possesses legal force, in light of Committee I/1s
report which indicate that all provisions of the
Charter are equally valid and operative.
The preambular statement is not a strictly legal

42

statement about the equality of States, because


there is no mention of the corresponding
obligations of States. It nevertheless affirms
one of the ideals of the UN.
The operative part of the Charter contains
several provisions on equality of states: Art 2,
par 1 on sovereign equality of members, which
is affirmed by Art 78 on the principle of
trusteeship based on the principle of sovereign
equality.
Elements of sovereign equality, according to the
report of Committee I/1:
1) States are juridically equal

No specific interpretation of
juridically equal
2) Each State enjoys the right inherent in full
sovereignty
3) The personality of the State is respected, as
well as its territorial integrity and political
independence
4) The State should, under international order,
comply faithfully with its international duties
and obligations
Sovereign equality may be divided into
sovereignty and equality.
The former is
intended to protect members from arbitrary
treatment on the part of the UN itself or other
members.
1) Sovereign equality is also recognized in the
Declaration on Principles of International
Law Concerning Friendly Relations among
States, which adds the right to freely
choose and develop its political, social,
economic, and cultural systems to the
Elements supra.
Lachs, The Development And General Trends
Of International Law In Our Time
1. The State was, from the outset, a rationalized
abstraction
uniting
three
well-known,
determinative but not exhaustive, basic and
constitutive elements: the exercise of power within
a defined territory on a defined mass of
population.
2. Despite the changes of the States visage and
structure, sovereignty has become its most
characteristic and prominent feature. Although
there have been questions on its scope and
dimensions, it has been clear that it has 2 faces:
one directed inside the State and the other
directed outside.
3. Because of the swift growth in the number of
States, there is the consequent multiplication of
the potentials of conflict and cooperation; this
makes the State the central figure in international
relations. Note that the modern State is still a
sovereign state. Yet it is frequently assumed that
the relationship between international law and
sovereignty constitutes an antimony which could
be overcome only with great difficulty. This is
wrong for the very nature of international law is
decisively determined by independence of its
subjects (i.e., the State, is not its creature).
4. Thus, the question that remains is the scope
of sovereignty [see # 9, 2nd sentence for the

answer] (i.e. How independent are States?); there


must be obviously be a sense in which sovereignty
is subordinate to international law, in which the
subject of international law is also subject to
international law.
5. The idea the State sovereignty is absolute is
anachronistic. The recent evolution of international
law and the direction of its development indicate 2
trends which complement each other: 1) the
increased expansion of rights of individual States
the greater mutual sharing of rights (see pages
34-6).
6. States applies both domestic and international
law, but can it act at the expense of the other
States? Logically, No (but if the State is a
superpower or headed by a madman or both).
With so many States neighboring each other, it
becomes easy to violate the rights of other States.
Thus, it becomes clear of the necessity for States
to conclude treaties, and by doing so accept
obligations and restrictions on the exercise of their
sovereignty and acquire reciprocal rights from
other parties to the treaties (which most, if not all,
States do). This is not only in the States best
interest but also to fulfill its international
obligations. Here the integral link between
sovereignty and international law is fully
established.
7. States also confront each other within their
borders, where the rights and interests of other
States
are
concerned.
Here,
the
mutual
dependence is clearly manifest despite it being
easier to violate the rights of other States, as
determined by realities of geography, economics
and political factors (think of the European Union
as a concrete example-rainier).
8. This strong trend of interdependence does not
mean
the
waning
of
State
sovereignty.
Sovereignty, though conditioned or limited,
remains an essential element of decision-making
of the State.
9. The State has to adapt to the changing
conditions of history and life; But to continue its
existence it must retain control and freedom of
action of its security and basic rights; it thus must
remain a sovereign State.
2. Recognition
Brownlie, Principles of Public International
Law (1966), supra
3. State Territory in General
Brierly, The Law of Nations
Territorial Sovereignty when a state occupies a
definite part of the surface of the earth, with in
which it normally exercises, subject to the
limitations imposed by IL, jurisdiction over persons
and things to the exclusion of the jurisdiction of
other states

Modes of Acquiring Territory

43

occupation means of acquiring territory


not already forming part of the dominions
of any state

in principle, area to which the legal effects


of an occupation extend should be simply
the area effectively occupied

since actual, physical occupation is


impracticable, extension of area allowed
such that a settlement is entitled, not only
to the lands actually inhabited and
brought under its immediate control, but
to all those which may be needed for its
security, and to the territory which may
fairly be considered to be attendant upon
them

Occupation must be effective thus mere


discovery of an unappropriated territory is
not sufficient to create a title

Some weight given to mere discovery and


is regarded as giving an inchoate title, a
temporary right to exclude other states
until the state of the discoverer has had a
reasonable time within which to make an
effective occupation

2. Prescription where long possession may


operate either to confirm the existence of a title
the precise origin of which cannot be shown or to
extinguish the prior title of another sovereign

Peaceful and continuous possession raises


a presumption that the original
assumption of sovereignty was in
conformity with IL and has the effect of
consolidating the claimants title
Peaceful display of state territory over a
long period excludes the existence of any
valid prior title in another state and makes
it unnecessary to rely upon the principle of
extinctive prescription by long adverse
possession

3. cession mode of transferring the title to


territory from one state to another

Results sometimes from a war or from


peaceful negotiations and may either be
gratuitous or for some consideration

5. accretion addition of new territory to the


existing territory of a state by operation of nature,
as by the drying up of a river or the recession of
the sea

Dependent Territories (not important since most


are moot with the respect to contemporary IL)

Colonies and colonial protectorates

Colonies lands acquired by treaty of cession,


annexation, prescription, or conquest, which
become dependent possessions of the acquiring
state without being brought constitutionally under
the states own system of government

Colonial protectorate relation between a state


and a native community not sufficiently civilized to
be regarded as a state

Trust Territories

Territories surrendered by Germany and


Turkey to the Principal Allied and Associate
Powers which were inhabited by peoples
not yet able to stand by themselves

Well-being of these peoples forms a sacred


trust of civilization; and this trust was to
be carried out by placing them under the
tutelage of different members of the
League of Nations

Leases: diplomatic device for rendering a


permanent loss of territory more palatable to the
dispossessed state by avoiding any mention of
annexation and holding out the hope of eventual
recovery

Servitudes

4. conquest acquisition of the territory of an


enemy by its complete and final subjugation and a
declaration of the conquering states intention to
annex it

Constitutionally, inhabitants of a
protectorate do not take the nationality of
the protecting state

In Roman law, it is a right enjoyed by the


owner of one piece of land, the praedium
dominans, not in his personal capacity,
but in his capacity as owner of the land,
over land which belongs to another, the
praedium servinas

44

A right in rem, exercisable not only vs. a


particular owner of the servient tenement
by vs. any successor to him in title, and
not only by a particular owner of the
dominant tenement but also by his
successors title
Test of an international servitude: right
should be one that will survive a change
in the sovereignty of either of the two
states concerned in the transaction
No real evidence that any such right
exists in the international system

Maritime Territory

sovereignty of a state extends beyond its


land territory to certain areas of sea which
form part of its domain either as internal
waters or as territorial sea

internal waters state is entitled, which in


certain limits, to treat ports, estuaries,
bays and other enclosed areas of the sea
as subject to its sovereignty

problem before whether a state was


entitled to claim all the waters of its bays
as internal waters or whether in bays, as
on the open coast, it was to be limited to a
belt of territorial sea; and, if bays were to
be claimable as internal waters, there was
the further problem of what waters could
be said to fall within the concept of a bay

Geneva convention of 1958 on the


territorial Sea and Contiguous Zone if the
distance between the low-water marks of
the natural entrance points of a bay does
not exceed 24 miles, a closing line may be
drawn and the waters so enclosed are to
be considered as internal waters; if
however, the natural entrance points are
than 24 miles apart, a straight baseline of
24 miles may be drawn inside the bay in
such a way as to enclose the maximum
area of water that is possible with a line of
that length

territorial sea states sovereignty


extended as far out to sea as cannon
would reach; and the 3 mile limit has
traditionally been represented as simply
the rough equivalent of the maximum
range of cannon in the 13th century

contiguous zone zones of high sea


contiguous to the territorial sea

Continental Shelf: area from the seabed shelves


downward to the ocean depths

(if you have time, try to read the UNCLOS for


concrete information on MARITIME TERRITORIES
and the CONTINENTIAL SHELF)
Cases:
(1) Minquiers and Ecrehos case (1953)
The Minquiers and Ecrehos case was submitted to
the Court by virtue of a Special Agreement
concluded between the United Kingdom and
France on December 29th, 1950. In a unanimous
decision, the Court found that sovereignty over the
islets and rocks of the Ecrehos and the Minquiers
groups, in so far as these islets and rocks are
capable of appropriation, belongs to the United
Kingdom.

In its Judgment, the Court began by defining the


task laid before it by the Parties. The two groups of
islets in question lie between the British Channel
Island of Jersey and the coast of France. The
Ecrehos lie 3.9 sea miles from the former and 6.6
sea miles from the latter. The Minquiers group lie
9.8 sea miles from Jersey and 16.2 sea miles from
the French mainland and 8 miles away from the
Chausey islands which belong to France. Under the
Special Agreement, the Court was asked to
determine which of the Parties had produced the
more convincing proof of title to these groups and
any possibility of applying to them the status of
terra nullius was set aside. In addition, the
question of burden of proof was reserved: each
Party therefore had to prove its alleged title and
the facts upon which it relied. Finally, when the
Special Agreement refers to islets and rocks, in so
far as they are capable of appropriation, it must be
considered that these terms relate to islets and
rocks physically capable of appropriation. The
Court did not have to determine in detail the facts
relating to the particular units of the two groups.

The Court then examined the titles invoked by


both Parties. The United Kingdom Government
derives its title from the conquest of England by
William Duke of Normandy in 1066. The union thus
established between England and the Duchy of
Normandy, including the Channel Islands, lasted
until 1204, when Philip Augustus of France
conquered continental Normandy. But, his
attempts to occupy also the islands having been
unsuccessful, the United Kingdom submitted the
view that all of the Channel Islands, including the
Ecrehos and the Minquiers, remained united with
England and that this situation of fact was placed
on a legal basis by subsequent treaties concluded

45

between
the
two
countries.
The
French
Government contended for its part that, after
1204, the King of France held the Minquiers and
the Ecrehos, together with some other islands
close to the Continent and referred to the same
medieval treaties as those invoked by the United
Kingdom.

The Court found that none of those treaties (Treaty


of Paris of 1259, Treaty of Calais of 1360, Treaty of
Troyes of 1420) specified which islands were held
by the King of England or by the King of France.
There are, however, other ancient documents
which provide some indications as to the
possession of the islets in dispute. The United
Kingdom relied on them to show that the Channel
Islands were considered as an entity and, since the
more important islands were held by England, this
country also possessed the groups in dispute. For
the Court, there appears to be a strong
presumption in favour of this view, without it being
possible however, to draw any definitive
conclusion as to the sovereignty over the groups,
since this question must ultimately depend on the
evidence which relates directly to possession.

For its part, the French Government saw a


presumption in favour of French sovereignty in the
feudal link between the King of France, overlord of
the whole of Normandy, and the King of England,
his vassal for these territories. In this connection,
it relies on a Judgment of the Court of France of
1202, which condemned John Lackland to forfeit
all the lands which he held in fee of the King of
France, including the whole of Normandy. But the
United Kingdom Government contends that the
feudal title of the French Kings in respect of
Normandy was only nominal. It denies that the
Channel Islands were received in fee of the King of
France by the Duke of Normandy, and contests the
validity, and even the existence, of the judgment
of 1202. Without solving these historical
controversies, the Court considered it sufficient to
state that the legal effects attached to the
dismemberment of the Duchy of Normandy in
1204, when Normandy was occupied by the
French, have been superseded by the numerous
events which occurred in the following centuries.
In the opinion of the Court, what is of decisive
importance is not indirect presumptions based on
matters in the Middle Ages, but the evidence
which relates directly to the possession of the
groups.

Before considering this evidence, the Court first


examined certain questions concerning both
groups. The French Government contended that a
Convention on fishery, concluded in 1839,
although it did not settle the question of

sovereignty, affected however that question. It is


said that the groups in dispute were included in
the common fishery zone created by the
Convention. It is said also that the conclusion of
this Convention precludes the Parties from relying
on subsequent acts involving a manifestation of
sovereignty. The Court was unable to accept these
contentions because the Convention dealt with the
waters only, and not the common user of the
territory of the islets. In the special circumstances
of the case, and in view of the date at which a
dispute really arose between the two Governments
about these groups, the Court shall consider all
the acts of the Parties, unless any measure was
taken with a view to improving the legal position
of the Party concerned.

The Court then examined the situation of each


group. With regard to the Ecrehos in particular,
and on the basis of various medieval documents, it
held the view that the King of England exercised
his justice and levied his rights in these islets.
Those documents also show that there was at that
time a close relationship between the Ecrehos and
Jersey.

From the beginning of the nineteenth century, the


connection became closer again, because of the
growing importance of oyster fishery. The Court
attached probative value to various acts relating
to the exercise by Jersey of jurisdiction and local
administration and to legislation, such as criminal
proceedings concerning the Ecrehos, the levying of
taxes on habitable houses or huts built in the islets
since 1889, the registration in Jersey of contracts
dealing with real estate on the Ecrehos.

The French Government invoked the fact that in


1646 the States of Jersey prohibited fishing at the
Ecrehos and the Chausey and restricted visits to
the Ecrehos in 1692. It mentioned also diplomatic
exchanges between the two Governments, in the
beginning of the nineteenth century, to which
were attached charts on which part of the Ecrehos
at least was marked outside Jersey waters and
treated as res nullius. In a note to the Foreign
Office of December 15th, 1886, the French
Government claimed for the first time sovereignty
over the Ecrehos.

Appraising the relative strength of the opposing


claims in the light of these facts, the Court found
that sovereignty over the Ecrehos belonged to the
United Kingdom.

With regard to the Minquiers, the Court noted that

46

in 1615, 1616, 1617 and 1692, the Manorial court


of the fief of Noirmont in Jersey exercised its
jurisdiction in the case of wrecks found at the
Minquiers, because of the territorial character of
that jurisdiction.

Other evidence concerning the end of the


eighteenth century, the nineteenth and the
twentieth centuries concerned inquests on corpses
found at the Minquiers, the erection on the islets
of habitable houses or huts by persons from Jersey
who paid property taxes on that account, the
registration in Jersey of contracts of sale relating
to real property in the Minquiers. These various
facts show that Jersey authorities have, in several
ways, exercised ordinary local administration in
respect of the Minquiers during a long period of
time and that, for a considerable part of the
nineteenth century and the twentieth century,
British authorities have exercised State functions
in respect of this group.

respect of the islets.

In such circumstances, and having regard to the


view expressed above with regard to the evidence
produced by the United Kingdom Government, the
Court was of opinion that the sovereignty over the
Minquiers belongs to the United Kingdom.
Availing themselves of the right conferred on them
by Article 57 of the Statute, Judges Basdevant and
Carneiro, while concurring in the decision of the
Court, appended to the Judgment statements of
their individual opinions. Judge Alvarez, while also
concurring in the decision of the Court, made a
declaration expressing regret that the Parties had
attributed excessive importance to medieval
evidence and had not sufficiently taken into
account the state of international law or its
present tendencies in regard to territorial
sovereignty.
(2) Anglo-Norwegian Fisheries Case

The French Government alleged certain facts. It


contended that the Minquiers were a dependency
of the Chausey islands, granted by the Duke of
Normandy to the Abbey of Mont-Saint-Michel in
1022. In 1784 a correspondence between French
authorities concerned an application for a
concession in respect of the Minquiers made by a
French national. The Court held the view that this
correspondence did not disclose anything which
could support the present French claim to
sovereignty, but that it revealed certain fears of
creating difficulties with the English Crown. The
French Government further contended that, since
1861, it has assumed the sole charge of the
lighting and buoying of the Minquiers, without
having encountered any objection from the United
Kingdom. The Court said that the buoys placed by
the French Government at the Minquiers were
placed outside the reefs of the groups and
purported to aid navigation to and from French
ports and protect shipping against the dangerous
reefs of the Minquiers. The French Government
also relied on various official visits to the Minquiers
and the erection in 1939 of a house on one of the
islets with a subsidy from the Mayor of Granville,
in continental Normandy.

History
British fishing vessels began appearing off the
Coast of Eastern Finnmark (I suppose this is in
Norway, I couldnt find it in the map) in 1906.
The vessels increased in number from 1908
onwards, which led the Norwegian Govt to
prescribe limits within which fishing by foreigners
was prohibited.

The Court did not find that the facts invoked by


the French Government were sufficient to show
that France has a valid title to the Minquiers. As to
the above-mentioned facts from the nineteenth
and twentieth centuries in particular, such acts
could hardly be considered as sufficient evidence
of the intention of that Government to act as
sovereign over the islets. Nor were those acts of
such a character that they could be considered as
involving a manifestation of State authority in

Procedure before the Court


So on Sept. 28, 1949, UK and Ireland instituted
proceedings before the Court against Norway. The
issue in the proceedings was the validity, under
international law, of the lines of delimitation of the
Norwegian fisheries zone laid down by the 1935
Decree.

In 1911, a British trawler was seized and


condemned for violating these measures. This was
the first incident of arrest. In 1932, the number of
warnings and arrests increased.
The United Kingdom sent a memorandum to
Norway
complaining
that
Norway
used
unjustifiable base-lines in delimiting its territorial
sea.
On July 12, 1935, a Norwegian Royal Decree was
enacted delimiting the Norwegian fisheries zone
north of 6628.8' North latitude.
Pending the result of negotiations as to whether
or not the States should submit the dispute to the
ICJ, Norway made it known that Norwegian fishery
patrol vessels would deal leniently with foreign
vessels.
In 1948, however, since no agreement had been
reached, incidents of arrest again became more
and more frequent.

Nature of the Norwegian Coast


The coastal zone under dispute has a very

47

distinctive configuration. The coast is very broken


along its length, constantly opening out into
indentations that often penetrate great distances
inland. It includes Norways mainland as well as all
the islands, islets, rocks, and reefs known as the
skjaergaard (literally, rock rampart).

ISSUES:
UK asked the Court to:
a) declare the principles of IL applied in
defining base-lines;
b) award damages to UK in respect of all
interferences by Norway with British
fishing vessels outside the zone which
Norway is entitled to reserve for its
nationals
Subject: Delimitation of Norways territorial
waters
Both Parties agree that the breadth of the
territorial waters should be 4 miles from the baseline. They agree that the low-water 1 mark rule was
to be used as the base-point (low-water mark =
base-line w/c is the point from which 4 miles will
be measured to determine the width of Norways
territorial waters), but they disagree as to what
constitutes the relevant low-water mark.
UKs proposed delimitation
UK says the relevant low-water mark is Norways
mainland or permanently dryland. According to the
UK, the general rule is that a State may draw an
imaginary straight line to close the openings
between headlands of a bay, when the length of
such line does not exceed ten miles. This is known
as the 10-mile rule. In accordance with this rule,
Norway may draw imaginary straight lines as
base-lines (or base-lines over water) only across
bays, but not between islands, islets and rocks.
As an exception to the general rule, UK concedes
that Norway is entitled to claim, by historic title,
fjords and sunds as internal waters, and close
these waters with imaginary lines whether or not
the lines exceed 10 miles (these are known as
historic waters).
From this we glean that UK regards the 10-mile
rule as a rule of IL and Norways historic waters
only as an exception to the 10-mile rule.
Norways sytem of delimitation
On the other hand, Norway contends that the
relevant low-water mark should be the island or
islet farthest from the mainland not covered by the
sea. A Decree issued by Norway in 1812 did not
expressly say that the lines drawn must be in the
form of straight lines but this was how the 1912
Decree was invariably construed by Norway in the
1

Lowest level reached by a body of water

19th and 20th centuries. Norway further contends


that there should be no maximum length for the
straight lines drawn. (The lines drawn by Norway
in its delimitation actually ranged from 18 to 46.1
miles.)
ICJs methods of delimitation
The Court mentioned three methods to effect the
applicability of the low-water mark rule:
1 trace-parallele method where the line is drawn
following the coast in all its sinuosities (curves,
dents and bends). This method is inapplicable in
coasts that are too broken, such as Norways
coast.
2 arcs of circles method reviewer says imaginary
circles
are drawn with centers at designated
points along the coast. These circles have a radius
of 4 miles. The outer rings are then interconnected
to constitute the territorial sea.
3 straight base-lines method appropriate points
are selected on the low-water mark and then
straight lines are drawn bet. them. This is done
both in cases of well-defined bays and in minor
curvatures.
HELD: The 1935 Decree has not violated IL.
Norways delimitation upheld.
1) The 10-mile rule relating to bays has not
acquired the authority of a general rule of IL.
In any event, the 10-mile rule would appear
inapplicable as against Norway, inasmuch as she
has always opposed any attempt to apply it to the
Norwegian coast. (Norway was not a party to the
North Sea Fisheries Convention of 1882) p.6
2) Contrary to UKs claims, the delimitation
adopted by Norway is not an exception to a
general rule, but is only the application of GIL to a
specific case. (Reviewer says the Court failed to
mention what this GIL was and where it came
from, but the case mentioned several times the
principle that the belt of territorial waters must
follow the general direction of the coast.) p.6
3) The delimitation system was consistently
applied by Norway from 1869 until the dispute
arose. It encountered no opposition from other
States, including the UK. Therefore, the system, by
acquiescence, became enforceable against all
States. p.13 part V
UK did not contest Norways practice for
more than 60 yrs
UK could not have been ignorant of the
Decrees of 1869 (which provoked a
request for explanation by the French
Govt) and 1889, both constituting
application of the practice
Norway refused to adhere to the North Sea
Fisheries Convention, objecting to the
maximum length of lines adopted in it. UK
attempted to secure Norways adherence
to the Convention, indicating that it was

48

interested in the problem of Norways


coastal waters.
The
1.
2.
3.

notoriety of the facts


general toleration of the intl community
UKs prolonged abstention despite her
position in the North Sea The UK, while
being a coastal State greatly interested in
fisheries in the area and a maritime power
traditionally concerned with the law of the
sea, remained silent as to Norways
delimitation.
warrant Norways enforcement of her
delimitation system against the UK.
4) UK attempted to show, by several documents,
that Norway admitted by implication, some other
method necessary to comply with IL. Court held
that it is impossible to rely upon a few words
taken from a single note to draw the conclusion
that the Norwegian Govt had abandoned a
position which its earlier official documents had
clearly indicated. p.12
Important Statements
p.8 III 1 Although it is true that the act of
delimitation is necessary a unilateral act, because
only the coastal State is competent to undertake
it, the validity of the delimitation with regard to
other States depends upon IL.
p.8 III 3 onwards The ff. are basic
considerations inherent in the nature of the
territorial sea, which provide courts with basis for
their decisions:
1) general direction of the coast (close
dependence of territorial sea upon the
land domain) While a State must be
allowed the latitude necessary in order to
be able to adapt its delimitation to
practical needs and local requirements,
the drawing of base-lines must not depart
to any appreciable extent from the general
direction of the coast.
2) as to sea areas divided by lands the
question being, whether or not certain sea
areas lying within these lines are
sufficiently closely linked to the land
domain to be subject to the regime of
internal waters
3) economic considerations economic
interests peculiar to the region
Notes:
Magi
on
Britains
acquiescence
to
Norways
delimitation- they only time Britain protested against
Norways delimitation of its fishing boundaries was
when British fishermen were punished for poaching in
Norways fishing zone. Was the ICJ charging Britain of
estoppel?
In art. 38 (d) there is no reference to practice of states.
There were only two items referred to, judicial

decisions and works of well-known publicists. If by


these declarations, the ICJ is trying to imply the
application of principles of acquiescence or recognition
or estoppel, then it should have said so.
When we speak therefore of acts of states which might
have legal significance, as a unilateral act of
declaration, the term act should also include
abstention of absence of protest.
(3) Island of Palmas Case
On January 23, 1925, the United States of America
and the Netherlands signed an agreement relating
to the arbitration of differences respecting
sovereignty over the Island of Palmas (or
Miangas).
Both States agreed to refer the decision of the
abovementioned differences to the Permanent
Court of Arbitration at The Hague.
The arbitral tribunal shall consist of one arbitrator
whose sole duty shall be to determine whether the
Island of Palmas in its entirety forms part of
territory of the United States of America or of the
Netherlands territory.
The claim of the US to sovereignty over the Island
of Palmas were based on 3 grounds:
1. Based on titles of discovery
The US asserted that the Island of Palmas was
discovered by Spain and was deemed subject to
Spanish sovereignty. Consequently, by virtue of
the Treaty of Paris, all rights of sovereignty, which
Spain had on several regions including the Island,
were also ceded to the United States.
It was therefore necessary to resolve WON Spain
had rights over the Island, which it could have
legally transferred to the US by virtue of the Treaty
of Paris.
Arbitrator: No, mere claims of discovery are
insufficient.
1. International law lays down the principle that
occupation, to constitute a claim to territorial
sovereignty, must be effective, that is offer certain
guarantees to other states and their nationals.
Discovery alone, without any subsequent act,
cannot at the present time suffice to prove
sovereignty over the Island.
2. On the claim that discovery creates an inchoate
title: an inchoate title of discovery must be
completed within a reasonable period by effective
occupation of the region claimed to be discovered.
In the CAB, neither act of occupation nor any
exercise of sovereignty at Palmas by Spain has
been alleged.
an inchoate title could not prevail over the
continuous and peaceful display of
authority by anther state; for such display

49

may prevail even over a prior, definitive


title put forward by another State.
2. Based on the ground of recognition by
treaty
The US based its claim on the Treaty of Munster,
which established a state of peace between Spain
and the States General of the United Provinces of
the Netherlands. The treaty establishes as a
criterion the principle of possession to determine
which regions belong to one state and which
belong to the other.
Arbitrator: treaties invoked cannot support US
claim.
1. There is no proof to support a claim that Spain
ever had indirect possession of the Island of
Palmas.
2. As to the contention that there was a violation
of the Treaty of Munster when the Dutch took
possession of Tabukan (Island considered to be a
part of this region) in 1677: can be disregarded.
There is further no trace of evidences that Spain
ever claimed at a later opportunity the restitution
of territories taken or withheld from her in
violation of the treaties of Munster or Utrecht.
3. Based on the claim that title may arise out of
contiguity
states have in certain circumstance
maintained that islands relatively close to
their shores belonged to them in virtue of
their geographical situation
Arbitrator: The title of contiguity, understood as a
basis of territorial sovereignty, has no foundation
in international law.
1. It is impossible to show the existence of a rule
of positive international law to the effect that
islands situated outside territorial waters should
belong to a state from the mere fact that its
territory form terra firma (nearest continent or
island of considerable size).
2. The principle is by its very nature so uncertain
and contested that even governments of the same
state have on different occasions maintained
contradictory opinions as to its soundness.
3. Inadmissible as a legal method of deciding
questions of territorial sovereignty for it is wholly
lacking in precision and would in its application
lead to arbitrary results.
Conclusion: The Island of Palmas forms in its
entirety a part of Netherlands territory.
1. The peaceful character of the display of
Netherlands sovereignty for the entire period to
which the evidence concerning acts of display
relates must be admitted. It has been open and
public, that is to say it was in conformity with
usages as to exercise of sovereignty over colonial

states.
from 1677-1885, several conventions were
entered into by the Dutch East India
Company and the princes, radjas or kings
of Tabukan, Taruna and Kandahar
these conventions were based on the
conception that the prince receives his
principality as a fief of the company or the
Dutch state, which is suzerain.
These conventions granted the Dutch East
India Company (Netherlands) economic
advantages, commercial privileges, and
the right to exercise public authority in
regard to their own nationals and to
foreigners. The form of legal relations
created by such contracts is most
generally that of suzerain and vassal, or of
the so-called colonial protectorate.
US questions the power of the East India Company
to act validly under international law, on behalf of
the Netherlands, in particular by concluding socalled political contracts with the native rulers.
Arbitrator:
These contracts are not, in the
international law sense, treaties or conventions
capable of creating rights and obligations such as
may, in international law, arise out of treaties.
But contracts of this nature are not wholly void of
indirect effect on situations governed by
international law; if they do not constitute titles in
international law, they are nonetheless facts of
which that law must in certain circumstances take
account.
It is not an agreement between equals; it is rather
a form of internal organization of a colonial
territory, on the basis of autonomy for the natives.
(4) State Territory: Acquisition and Loss
Magallona, Acquisition and Loss of Territory
in International Law
MODES OF ACQUISITION
1. Occupation of territory
must be effective occupation since
mere discovery of territory does not
confer title.
Territory must be terra nullius never
been appropriated or not under
sovereignty of another State
* the degree & kind of possession effective to
create a title
2 elements which must exist:

intention (animus occupandi) &


will to act as sovereign

actual exercise or display of such


authority (titre de souverain
specific
manifestations
of
sovereignty)
The exercise of sovereignty must be:

50

a.
b.
c.

d.

peaceful not be usurpation nor contested


by other states
actual settlement and close physical
possession (not required if occupation is
effective)
continuous- degree of activity depends on
the circumstances of the territory
-loss of title by discontinuity may
result from intention to abandon
(express or tacit)
sufficient
to
confer
valid
title
to
sovereignty

Bare discovery merely gives an inchoate


title. It only creates an option or a priority as
against other states, to consolidate the first step
leading to an effective occupation which must be
done w/in reasonable time.
2. Cession
mode of transferring title to territory
from one state to another by a treaty
of cession whereby the ceding state
renounces its rights and title to the
territory in question
a derivative mode: its validity depends
on the valid title of the ceding state.
The cessionary state shall not have
more rights than what the ceding state
possessed.
2 elements:

agreement to cede
actual handing over of
territory to cessionary state

May a treaty of session be imposed by force of


arms in view of the prohibition vs use of threat
or force?
Intertemporal principle (IP) should be
considered. The effect of an act , such as the
decisive act in acquiring territory, is to be
determined by the law at the time it was done,
not by the law the claim is made.
Old titles resting on enforced treaty of
session must be held to be valid but even if
outside the framework of the Vienna
Convention and before its entry into force, the
prohibition of threat and use of force would
apply to prior treaties of cession as part of the
regime of UN charter.
3. Prescription
-title is acquired by effective
possession over a period of time.
Extinctive prescription- mode of losing
property since it extinguishes the former
owners right to recover possession of property
upon failure in time to present a claim.
Acquisitive prescription- creates a substantive
right, resulting at the same time in the
extinction of the right of the former owner

2 situations to acquire title through possession


a. immemorial possession where no original
source of proprietary right can be shown
to exist
b. adverse possession where possession in
the 1st instance being wrongful, the
legitimate possessor neglected or was
unable to assert his right; possession cures
the defect in title even if of wrongful
origin.
Conditions for acquisition of title
a. possession a titre de souverain the
display of authority must manifest a clear
intent to act as sovereign
b. peaceful and uninterrupted possession
generally presumed but only w/ respect to
maintenance of possession as
distinguished from taking of possession
c. public possession w/out knowledge,
there can be no acquiescence at all
d. possession must endure for a certain
length of time complete lack of
agreement as to the length of time
required for prescriptive title to ripen
Three forms
a. immemorial possession
b. prescription akin to usucopio on Roman
Law characterized by Justus titulus even if
defective, good faith & uninterrupted
possession for a period of time defined in
years
c. prescription under conditions of usucopio
but modified by elements of bad faith
4. Accession or accretion
-natural process of land formation resulting in the
increase of territory
Case:
Eastern Greenland Case
FACTS:
The Norwegian Government issued Proclamation
of July 10, 1931 confirming the occupation of Erik
Raides Land in Eastern Greenland and placed it
under Norwegian sovereignty. Norway was acting
on the theory that the territory was terra nullius.
As both Denmark and Norway made the same
declaration under Art 36(2) of the Courts statute,
The Danish government filed an application with
the Registry of the Court asking the Court to give
judgment on the issue that the action of Norway
constituted a violation of the existing legal
situation and was therefore unlawful and invalid.
Norway on the other hand claimed that Denmark
has no sovereignty over the area which the former
occupied as it was far from the Danish colonies
and that the Danish sovereignty applies only to

51

these colonies.
(1) In General
Issue: WON Norways acts (proclamation and
occupation) were invalid
HELD: Yes
RATIO:
The court pointed out that the Danish claim is
based merely upon the continued display of
authority. Such claim involves 2 elements:
a. intention or will to act as sovereign
b. some actual exercise or display of
authority.
In these words, the court was affirming the wellestablished principle that occupation, in order to
create a title to territory, must be effective
occupation. It must be followed up by action, such
as in a simple case, the planting of a settlement,
or building of a fort which shows that the state not
only desires to but can and does control the
territory.

Mann, The Doctrine of Jurisdiction in


International Law
1. Jurisdiction is by no means concerned only
with the problem of ascertaining the state
which, in a given case, has the sole right of
regulation. To a large extent, legislative
jurisdiction is concurrent rather than exclusive.
The existence of a States right to exercise
jurisdiction is exclusively determined by Public
International Law. Moreover, it will be
necessary to turn to PIL to ascertain the
consequences of the wrongful exercise of
jurisdiction. Joseph Beale made this very clear,
stating that the sovereign cannot confer
jurisdiction on his court or legislature when he
has no such jurisdiction according to the
principles of International Law.
2.

On the 1st element, the Court was satisfied by the


evidence that at any rate after a certain date,
1721, denmark;s intention to claim title to the
whole of Greenland was established.
On the 2nd element, it was necessary for the court
to examine carefully the evidence of actual
exercise of authority as the areas in dispute were
outside the settled areas of Greenland.
The Court pointed out that the absence of any
competing claim by another state is an important
consideration. A relatively slight exercise of
authority will suffice when no state can show a
superior claim. Until 1931, no state other than
Denmark had ever claimed title to Greenland.

Thus, it is obvious that a State, though entitled


to exercise its prescriptive jurisdiction, is by no
means necessarily entitled to enforce it.
3.

The problem of jurisdiction only arises in


MATTERS NOT EXCLUSIVELY OF DOMESTIC
CONCERN.
If there occurs in a State a certain set of facts
which involves only PERSONS WHO ARE
NATIONALS OF, and domiciled and resident in,
THAT STATE, and if these facts have to be
considered by a tribunal sitting within that
State, there is no room for any problem of
international jurisdiction.
It is only when there is some FOREIGN
ELEMENT, when the State purports to affect
person of foreign nationality, domicile or
residence in ACTS WHICH HAPPEN ABROAD
that the problem of international jurisdiction
makes its appearance.
Jurisdiction, it thus appears, is concerned with
regulating and delimiting the respective
competencies of States.

4.

Legislative jurisdiction should be distinguished


from sovereignty. The doctrine of legislative
jurisdiction answers the question of whether
and under what circumstances a State has the
right of regulation. If the right exists, it is
exercised by the State by virtue of its
sovereignty. The distinction is the same as that
between PIL and Municipal Law in general; the
former is the higher law which decides upon

The Court held too that the character of the


country must be regarded. The arctic and
inaccessible nature of the uncolonized parts of
Greenland made it unreasonable to look for a
continuous or intensive exercise of authority.
Denmark was able to show numerous legislative
and administrative acts purporting to apply to the
whole of Greenland, treaties in which other states,
by agreeing to a clause excluding Greenland from
their effects, had apparently acquiesced in her
claim, and in recent years an express recognition
of it by many states.
The Court held that in the circumstances, this was
sufficient evidence to establish Denmarks title to
the whole of the country.
Thus, the area claimed by Norway in 1931 was
therefore not at that time a terra nullius capable of
being acquire
(5) State Jurisdiction

Jurisdiction is concerned with the States right


of regulation. Regulation may occur in 2 forms:
a. PRESCRIPTIVE/LEGILATIVE
jurisdiction,
which designates a States international
right to make legal rules; and
b. ENFORCEMENT/PREROGATIVE jurisdiction,
which involves the right of a State to give
effects to its legal rules in a given case.

52

the rightful existence of a power; the latter is


the subordinate instrument whereby the State
as sovereign gives effect to the power allowed
to it.
Wherever its international implications are
concerned, jurisdiction is limited by rules of
International Law. No theory of sovereignty
can displace them.
5.

RELATIONSHIP BETWEEN JURISDICTION AND


CONFLICT OF LAWS
Conflict rules are a product of municipal law,
which has to stand the test of the international
doctrine of jurisdiction. In other words, it is the
function of jurisdiction to define the
international scope which the municipal
legislator is entitled to give to his enactments.
The conflict rule implements and gives effect
to the requirements of PIL.
However, PIL does not contain detailed rules
regulating the application of this or that legal
system. It merely provides the principles which
limit the freedom or competence of States in
enacting the conflict rule. In this sense, the
international rule of jurisdiction and the
municipal rule are complementary..

Mourning for California red: what was once a towering symbol of


goodwill, of sanity and good humor is now reduced to rubble... no
longer shall we witness sitro shake his booty. no longer shall we hear
mike ask cuando, cuando, "cuando" "?". no longer shall we have the
pleasure of seeing banuar...well...sleep. 'tis sad, i tell you. 'tis so
painfully heartbreaking indeed. but i urge you, friends, to remember
our beloved california red as she was once - as that undying symbol of
our most repressed fantasies. she will always be the place where
closet losers gather - to sing, to belch, to scream the universe's
curses, to forget that one battle fought has been lost and to hope that
in the next they wouldn't feel as inadequate. if only for these, i know
my beloved california red will always stay alive - maybe not in that
corner at the back of a gasoline station where no self-respecting
person would ever pass. but in my mind, beside the memory of my first
boyfriend whom i wish i could have killed but did not. in loving memory,
gladi*sniff,sniff*snort

Case:
S.S. Lotus Case
Facts:
The Lotus, a French
mail steamer, collided
with the Boz-Kourt, a
Turkish collier, in the
high seas. The latter
sank,
and
eight
Turkish nationals on
board perished.
Turkey
exercised
jurisdiction
over
criminal proceedings
against Demons, a
French national and
the Lotus officer of
the
watch,
and
sentenced him to 80
days
imprisonment
and a fine.

During the
first
hearing,
Demons
submitted that
the
Turkish
courts had no
jurisdiction.
This
case
was
submitted to the ICJ
pending the Turkish
Courts decision on
appeal.
Issue: Has Turkey,
contrary to Art 15 of
the Convention of
Lausanne
(CL)
respecting conditions
of residence and
business
and
jurisdiction, acted in
conflict
with
the
principles of IL and if
so, what principles,
by instituting joint
criminal proceedings
in
pursuance
of
Turkish law against
Demons?
If
yes,
what
pecuniary
reparation is due to
Demons, provided,
according to the
principles of IL,

reparation be made
in similar cases?
Held: NO
Main arguments
a.France (exclusive
territorial character of
law)
According
to
international law as
established by the
practice of civilized
nations,
in
their
relations with each
other, a state is not
entitled, apart from
express or implicit
special agreements
to extend the criminal
jurisdiction
of
its
courts to include a
crime
or
offense
committed
by
a
foreigner
abroad
solely
in
consequence of the
fact that one of its
nationals has been a
victim of the crime or
offense.

In
order to exercise JD
in this case, Turkey
must be able to point
out some title to JD in
its favor recognized
by IL.
b.Turkey (principle of
freedom)
Art 15 of the CL
refers simply and
solely
to
the
principles
of
international
law,
subject only to the
provisions of Art 16.
The former cannot be
read as supporting
any
reservation
whatever
or
any
construction giving it
another meaning.

Art 15
allows JD whenever
such JD is not in
conflict
with
any
principle of IL.

53

c. Article 15 of the CL:


Subject
to
the
provisions of Art 16,
all
questions
of
jurisdiction shall, as
between Turkey and
the other contracting
Powers, be decided
in accordance with
the principles of IL.

II. Decision of the


Court
a.
Gene
ral
consideration
s
Restriction
s upon the
independe
nce
of
states
cannot be
presumed.
Interna
tional
law is
a
produc
t
of
indepe
ndent
acts of
indepe
ndent
states.
The
first
and
foremost
restriction
imposed
by IL upon
States
is
that

failing the
existence
of
a
permissive
rule to the
contrary
a
State
may
not
exercise its
power
in
the territory

of another
state.
In
this sense,
JD
is
territorial.
It does not,
however,
follow that
states are
prohibited
from
exercising
JD in its
own
territory in
connection
with acts
that have
taken
place
abroad and
in which it
cannot rely
on
some
permissive
rule of IL.
IL
gives
States
a wide
measu
re
of
discreti
on to
extend
its JD,
which
is only
limited
in
certain
cases
by
prohibit
ive
rules.
In
exercis
ing
such
discreti
on, all
that
can be
require
d
of
States
is that

they
should
not
overste
p the
limits
on JD
impose
d by IL.
Within
these
limits,
its title
to
exercis
e
JD
rests
on its
soverei
gnty.
b.

Appli
cation
of
general
consideration
s to criminal
JD
The
territorial
character
of criminal
law, though
fundament
al, is not
an
absolute
principle of
IL and by
no means
coincides
with
territorial
sovereignty
.
Using
either
Frances or
Turkeys
theory
would lead
to the same
result: the
need
to
ascertain
WON there
exists
a
principle of
IL
which

prohibited
the
exercise of
JD in this
case.
c.

Does
general IL, to
which Art 15
CL
refers,
contain such
a prohibition?
Nationality
of
the
victim
is
not
the
only
criterion to
determine
JD.
No rule of
internation
al
law
prohibits
Turkey
from taking
into
considerati
on the fact
that
the
effects of
the offense
took place
in
a
Turkish
vessel
which, by
assimilatio
n,
is
Turkish
territory
over which
it
could
exercise its
JD.
Courts in
many
countries,
even those
that have
given
criminal
law
a
strictly
territorial
character,
interpret
criminal

54

law in the
sense that
offenses,
the authors
of which at
the
moment of
commissio
n are in the
territory of
another
State, are
neverthele
ss to be
regarded
as having
been
committed
in
the
national
territory if
one of the
constituent
elements
of
the
offense,
and more
especially
its effects,
have taken
place
there.
Principle of
freedom of
the seas:
absence of
territorial
sovereignt
y on the
high seas.
No
state
may
exercis
e any
kind of
JD
over
foreign
vessel
s
on
the
high
seas.
As
a
corollary to
the
principle of

the
freedom of
the seas, a
ship
is
assimilated
to
the
territory of
its
flag
state. It is
therefore
placed in
the same
position as
national
territory.
There is no
principle of
IL
which
prohibits a
flag State
from
regarding
the effect
of an act
committed
aboard its
vessel as
one
committed
within
its
territory
and
prosecutin
g
the
perpetrator
accordingly
.
THERE IS NO
RULE OF IL IN
REGARD
TO
COLLISION CASES
TO THE EFFECT
THAT
CRIMINAL
PROCEEDINGS ARE
EXCLUSIVELY
WITHIN THE JD OF
THE STATE WHOSE
FLAG IS FLOWN.
III. Other arguments
a.
Franc
e
The
substitution
of JD of
Turkish
Courts is

based on
consent
given
by
the Powers
in the CL.
Such
consent
with
respect to
criminal
proceeding
s has been
definitely
refused by
the Powers
and
France.
Interpr
et
based
on the
intent
of the
parties.
Court says:
There
is no
occasi
on to
have
regard
to the
prepar
atory
work if
the text
of the
conven
tion is
sufficie
ntly
clear in
itself.
The
phrase
should
be
constru
ed in
its
ordinar
y
meanin
g:
principl
es
which
are in

force
betwee
n
all
indepe
ndent
nations
and
which
therefo
re
apply
equally
to all
the
contrac
ting
parties
Art
15
could
only
refer to
principl
es of IL
relating
to JD.
The
propos
ed
limitati
on of
Turkish
JD to
crimes
commit
ted in
Turkey
itself
was
discard
ed by
the
Draftin
g
Commi
ttee.
Hence,
it
would
be
equally
justifia
ble to
assert
that
the
intentio
n was

55

not to
limit
Turkey
s JD in
any
way.

High Seas Articles


86-97, 105-111
(d)
Exclusive
Economic Zone, 5558, 70-73
(e) Continental Shelf

Case: Lotus Case


(1928), supra
State Jurisdiction
A. Immunities and
Privileges
of
3 aspects:
Foreign States
1. prescriptive- power or authority to prescribe
Brownlie,
Principles
norms of conduct within
its territorial
sphere
2. enforcement- power Ofto enforce Public
prescriptive
International
jurisdiction above or within
its territorial Law,
domain
supra
3. adjudicatory- power of
courts to interpret and
apply normative prescriptions.
Deak, Organs of
State
in
Their
Principles in Criminal Jurisdiction:
External Relations:
1. territoriality- does notImmunities
coincide with and
territorial
Privileges
State
jurisdiction; involves some
kind of of
extraterritorial
Organs and of the
jurisdiction
2. nationality- a person isState
subject to the laws of his
Law,
nationality. See art. 15International
CC.
Policyseeand
3. protective principle ofForeign
jurisdictionart. 2
Diplomacy
RPC.
Diplomacy
and
foreign
policy are
II.
2 Competing
Theories
related to, but distinct
IL. aILparticular
operates
France: burden is on Turkey tofrom
identify
rule of
within
IL supporting its stand. If Turkey
failsthe
to community
do so, its case
of sovereign states
must fail.
whose
foreign
policies shape
theirin its
Turkey: Turkey exercised a particular
jurisdiction
is no
statute book, a valid act relations,
because and
there it was
implemented through
prohibition in IL to do so.
diplomacy.
ICJ: restrictions to independence or jurisdiction of states
Foreign
Policy:
cannot be presumed. There
must be an
express
aggregate
of of
prohibition in IL to preclude
a states exercise
decisions
made by
a it is
jurisdiction. If there is no express
prohibition,
then
government
allowed.
regarding a states
vis--vis
Gen. Rule: jurisdiction of one position
state ends where
another
other states and its
begins.
posture
in
international
institutions
and
See Magallona, a
conferences.
Primer on the Law
of the Sea (1997),
Diplomacy:
for the following:
instrument
through
(a) Territorial Sea,
which
foreign
policy
is
Arts 27-32
implemented.
(b)
Archipelagic
Traditionally its most
Waters
important
functions
Notes:
I.

have
representation
negotiation.

been
and

The Foundations of
Diplomatic
Immunities
and
Privileges
International
law
confers on diplomatic
immunity from the
exercise
of
jurisdiction by the
receiving state. The
principles governing
diplomatic immunities
are among the most
ancient
and
universally
recognized rules of
international law.
Representational
theory:
the
ambassador
was
regarded
as
the
foreign
sovereigns
personal
representative;
impleading
or
arresting him was
tantamount
to
arresting
the
sovereign himself.
Functional theory: a
diplomat should be
free from interference
by local authorities so
that he can perform
his
duties
unhindered.
(grounded
on
principle
of
reciprocity)
Immunity here is from
exercise
of
jurisdiction,
not
immunity
from
jurisdiction itself.
Scope of Diplomatic
Immunities
1961
Vienna
Convention
on
Diplomatic relations:
immunity from civil
and
criminal

jurisdiction of the
receiving state, their
freedom of movement
and communication
and the inviolability of
the
missions
premises
and
archives.
Immunity from civil
and
administrative
jurisdiction does not
apply to the ff:
1. real property in the
territory of receiving
state and held by the
diplomat in his private
capacity
2.
succession
in
which the diplomat is
personally
involved
as
executor,
administrator, etc.
3. professional or
commercial activity in
which the diplomat
engages outside his
official functions.
Categories
of
personnel entitled to
diplomatic immunities
and privileges
Diplomatic personnel
of a mission and to
members of their
immediate
family,
regardless of rank, as
long as the diplomat
is a national of the
sending state.
Families
of
the
administrative
and
technical staff have
immunity if they are
not nationals of or
permanently residing
in the receiving.
Duration
of
Immunities
and
Privileges
From the moment the
diplomat enters the
territory
of
the
receiving state en
route to his post; or if
he is already in the

56

receiving state, from


the
moment
the
appropriate ministry
of that state is notified
of the appointment.
When
the
appointment
is
terminated,
immunities
and
privileges
normally
cease to apply when
the diplomat leaves
the receiving state, or
after a reasonable
period, even in the
case
of
armed
conflict.
Diplomatic Asylum
The inviolability of
mission premises is
the foundation of this
doctrine,
which
occurs
when
a
person seeks refuge
in the premises of a
foreign mission in the
receiving state. Such
doctrine
has
not
gained
general
acceptance in IL.
Diplomats in transit
Article 40: imposes
on 3rd states the duty
of
granting
inviolability and such
other immunities to
insure the transit of
diplomats and their
families,
whether
traveling with him or
separately.
Notes:
On State Immunity
2 schools of thought:
1. absolute
2. restrictive

Variations of State Immunity: of a State is an


1. act of state doctrine: that theessentially
Philippinerelative
court shall not
question;
depends
sit in judgment to consider the
legalityit of
an act of a
upon the
foreign government undertaken
in devt
its of
jurisdiction;
international
principle of self-restraint.
relations. Thus in the
present state of IL,
2. diplomatic immunities and privileges
questions
of N are,by
in ILCbody of customary norms
of IL codified
the opinion of
this remains
substance of these conventional
rules
as customary norm Court, in principle
this reserved
Vienna Convention onwithin
Diplomatic
Relations and
domain.
Consular relations

B. Nationality
Brownlie,
The
Relations
of
Nationality in Public
International Law
I. Introduction.
Mission: to estimate
the role which the
concept of nationality,
and the rules of
municipal law in this
sphere, have de lege
lata

II. Freedom of States


in Matters of
Nationality (N). The
accepted view:
Doctrine of Autonomy
Hudson: In principle,
questions of N fall
within the domestic
jurisdiction of each
State.

Locus Classicus of
the Permanent
ACTA JURE IMPERII: sovereign
governmental
acts
Courts
(PC) Advisory
ACTA JURE GESTIONIS:Opinion
commercial,
private,
on the Tunis
nongovernmental acts
& Morocco Nationality
Decrees: The
Incorporation of state immunity
in whether
Philippine
question
a legal
system is through the Consti certain
and notmatter
by declaration
is or is of
SC
not solely within the
domestic jurisdiction

But B said the above


are ambiguous (not
absolute), noting the
use of the term in
principle. Bs
provisional
conclusion is that the
questions of N are
not solely within the
domestic jurisdiction
of the State. Note that
the PC also states
the following in the
same Opinion:
in a matter
which, like that
of N, is not, in
principle
regulated by
IL, the right of
a State to use
its discretion is
nevertheless
restricted by
obligations
which it may
have
undertaken
towards other
States. In such
a case,
jurisdiction
which, in
principle,
belongs solely
to the State, is
limited by rules
of IL.
II. Principle Stated by
Oppenheim. N of an

individual is his
quality of being a
subject of a certain
State and therefore
its citizen. It is not for
IL but for Municipal
Law (ML) to
determine who is and
who is not to be
considered a
subject it matters
not, as far as the law
of Nations is
concerned, that ML
may distinguish
between different
kinds of subjects (ex.
A subject is a States
subject under IL
whether hes a full
British citizen or the
subject of a British
colony). For all
international
purposes, all
distinctions made by
MLs between
subjects and citizens
and between different
kinds of subjects
have NO theoretical
or practical value.
IV. Role of N in IL.
The principle of the N
of claims is allimportant. Thus, a
State, a national of
which has suffered a
wrong at the hands of
another State, has
the right to exercise
diplomatic protection.
N also provides a
normal (but not
exclusive) basis for
the exercise of civil
and criminal
jurisdiction, even in
acts done abroad. Ex.
extradition
V. Considerations of
Principle. Sovereignty
which is ex
hypothesis unlimited,

57

even by the existence


of other States, is
ridiculous whether
dominion is sought to
be exercised over
territory, sea,
airspace or
population. N is
problem of attribution.
Though natl law
prescribes it, this
prescription does not
preclude a forum
which is applying Il
from deciding
questions in its own
way, using criteria of
IL. To leave issues to
the unilateral
determination of
States is to give them
the power to contract
out the very system
of legal obligation
(i.e., as if States are
not subject to IL at
all).
VI. Systems of
accommodation.
Good faith and
comity. To say that a
State can make a
non-justiciable
unilateral
determination,
provided it is made in
good faith and in
accordance with IL, is
to produce a logical
circle. Also, none of
the alternative
systems of
accommodating state
policies (i.e.,
principles of comity,
natural law, etc.) is an
adequate substitute
for the use of
limitations derived
from the existing
rules of IL.
VII. General
Principles of IL. The
general principles of

IL (Art. 38.1.c ICJ


Statute) operate in
the field of N,
providing limitations
in the matter of the
conferment and
deprivation of N.
Example:
disregarding the
allegiance and loyalty
existing between
individuals and a
particular State
violates the territorial
sovereignty of the
state the population
of which is sought to
be annexed (like the
grant of asylum in an
embassy in the
Asylum case, or if the
UK suddenly
conferred British
citizenship on French
citizens living in
Brittany). There is this
no presumption vs.
the existence of
limitations in matters
of N.
VIII. Meaning of
Domestic Jurisdiction.
N isnt capable of
being confined to the
reserved domain (i.e.,
DJ) or the realm of
State relations. It has
2 aspects dominant
one depends on the
facts/ type of dispute.
The ICJ in the
Nottebohm case
stated: It is for
every sovereign
State, to settle by its
own legislation the
rules relating to the
acquisition of its N
But the issue which
the ICJ must decide
is not one which
pertains to the legal
system of
Liechtenstein
whether the State is
entitled to exercise its

protection. It is IL
which determines
whether a State is
entitled to exercise
protection.
IX. Opinions of Govts
on Autonomy. The
majority of replies to
the Preparatory
Committee for the
Hague Codification
Conference (HCC)
accepted the position
that the right to
determine N is not
unlimited. Further,
where a State adopts
legislation ex facie
contrary to its
international
obligations, the
legislation may itself
constitute the breach
of an obligation, but
potential plaintiff
States must await the
occurrence of actual
damage before
presenting a claim.
X. Hague Convention
on Certain Questions
Relating to the
Conflict of N Laws
(HCN). Art. 1 of the
Convention produced
by the HCC of 1930
states: It is for each
State to determine
under its own law
who are its nationals.
This law shall be
recognized by other
States in so far as it
is consistent with
international
conventions,
international custom,
and the principles of
law generally
recognized with
regard to nationality.
Lauterpacht notes
that some ideas
incorporated in the

HCN were followed


by States which did
and didnt ratify it. Ex.
Changes in laws on
the subordination of
married womens N to
husbands N.
XI. Opinion of Jurists.
Orthodox view
supports the
autonomy of States in
the matter of N. But
eminent jurists, such
as Lauterpacht,
Guggenheim,
Redslob, Fitzmaurice
and McNair, have
expressed the
opinion that IL
regulated the
question of N.
Cordova of the IL
Commission states:
xxx IL considers that
a certain natl
legislation is not legal
because it comes into
conflict with the
broader interests of
the international
community is
dependent upon and
subordinate to the
rules of IL
questions of N are
not entirely
reserved for the
exclusive jurisdiction
of the individual
States themselves.
XII. Nationality Rules
Commonly Adopted
by States. Certain
principles on the
conferment of N are
adopted in States
legislation often
enough to acquire the
status of general
principles:
A. Jus Sanguinis.
Attribution of N at

58

birth based on
descent generally
on the status of the
father, of either or
both parents, of
unmarried mother,
etc. Hudson & Weis
state that jus sang,
jus soli or a
combination of both
are the predominant
modes of acquisition
of N.
B. Jus Soli. Attribution
of N at birth based on
birth in the territory.
Predominant in the
world, though in
varying degrees the
most States laws rest
on both this and jus
sanguinis.
Exceptions:
1. established
rule of IL also
in Article 12
of HCN of
1930=
children born
to persons
with
diplomatic
immunity
wont
automatically
acquire N of
State where
the
diplomatic
agent is
accredited
when they
are born
there;
2. children of
enemy alien
fathers born
in territory
under enemy
occupation;
3. some States
exclude the
children of
aliens
passing thru

the country
C. Extensions of Jus
Soli. Applied to birth
on ships and aircraft
registered under the
flag of the State.
Does not apply ipso
facto in cases of birth
on a foreign ship in
territorial watersgeneral consensus
(but not de lege lata)
is that N is settled by
the laws of coastal
State that has legal
jurisdiction.
Extensions of jus soli
by treaty requires
notice.
D. Involuntary
naturalization. N is
automatically
conferred by
operation of law as
the effect of changes
in civil status: see (E)
to (H). recognized as
consistent with IL due
to consistent practice
of States.
E. Marriage. HCN of
1957 favors principle
of equality but
compromises=
celebration/dissolutio
n of marriage
between national and
an alien or change of
N by husband during
marriage shall not
affect the wifes N
automatically. But
alien wife may, at her
request, acquire
husbands nationality.
F. legal
recognition/legitimatio
n. Child follows the
fathers nationality,
but states are free to

grant or withhold N
despite legitimation.
G. Adoption. Minor
acquires adoptive
parents N.
H. Acquisition of
Domicile/Analogous
Links
Residence, domicile,
immigration animo
manendi, conferment
of N on members of
ethnic/other defined
groups belonging to s
Stets population,
general rule that a
Head of State has the
N of the State he
represents.
I. Voluntary
naturalization. Grant
of N based on an
explicit voluntary act
of the individual.
Requires prolonged
residence as a
precondition +
specific intent to
obtain N.
J. Nationality ex
neccessiiate juris.
Child of unknown
parents presumed to
have N of the State in
which it was found.
Minor children
naturalized together
with father or
responsible parent
though minor is given
an option when he
reaches majority.
XIII. Legal Status of
general Principle
Above. Principles
above are generally
recognized principles
in ML of various

states. Weis said


such concordance of
ML does not create
customary IL since
opinio juris et
necessitates is
lacking.
Brierly: 1) such
legislation of N can
be evidence of
international custom
and 2) lack of
uniformity in N laws
isnt lack of opinio
juris but due to
numerous
permutations (noted
in Nottebohm).
XIV. logical
Application of IL
Rules. Important
limitations on the
powers of individual
States in the
attribution of persons
for IL purposes.
A. Area of attribution
must have legal
personality., There
must be a state,
recognized as such
by the forum, or other
international person
having the capacity to
create a law of
attribution on the
basis of nationality
(Vatican). If the entity
has not developed a
stable personality, its
citizens may not be
regarded as having.
B. regimes of divided
sovereignty or
indeterminate status.
In international lease,
protected States,
condominium, status
of populations must
be regulated by IL.

59

There are also


territories, not res
nullius, which have
no determinate
sovereign, Formosa
which Japan
renounced its rights
to tin 1951. If N fails
to provide an answer,
residence or domicile
is a reasonable
substitute.
C. Mandated and
trust territories.
Status of inhabitants
of such territories
cannot be a domestic
question since neither
the Mandatory nor
the administering
authority,
respectively, has
sovereignty over the
territory, though the
administering power
may exercise the
right of diplomatic
protection in respect
of the population.
Inhabitants share the
status in rem of a
mandate d or trust
territory. The tests
are residence and
domicile.
D. Chapter 11 UN
Charter. Article 73
imposes the
obligation to ensure
the just treatment and
protection.
Conferment and
denationalization
limited.
E. Status without N
legislation. New
states automatically
confer N on their
inhabitants (Israel)
F. Persons Outside

National Legislation.
Legislation may
categorize the
population into
citizens with full
status and others, but
such persons have
the status of nationals
for IL purposes.
Distinguish this
internal regime of
status from
denationalization.
Deprivation of N
intended to have an
international effect.
G. State succession.
Population follows the
change of
sovereignty in
matters of N.
H. Illegal acts and onrecognition. N
conferred due to
illegal acts may arise:
1. by acts ultra
vires in that,
in the
absence of
an effective
link, a State
[purports to
give extraterritorial
effect to its
laws by
conferring N
or
2. by acts of
conferment
the
effectiveness
of which rests
on illegal
annexation of
territory or
the detention
of abduction
of aliens
within state
territory.

I. State responsibility
in Genuine Link
Doctrine. Sates
cannot plead internal
law to justify
international wrongs
and are responsible
for conditions on their
territory which lead to
harm of other states.
Thus, States are
responsible for
delinquents in its
territory WON
nationals, and has
the duty to admit its
nationals expelled by
another state + duty
not to exp[el
nationals. B
postulates a general
principle of genuine
link as to the causa
for conferment or
deprivation of N
which has the 2
considerations 1)
presumption of
validity of an act of
naturalization since
government acts
presumed to be in
good faith and 2) N is
a status, conferment
of N acted upon
shouldnt be
invalidated except in
very clear cases.
J. Nationality of
Claims. Principle of
diplomatic protection
rests on the fact that
N of the claimant
States existed in the
individual or
corporation at the
time of the breach of
duty and when the
claim was presented.
K. Diplomatic
protection. States
may only exercise DP
in respect to their
nationals. DP

depends on N, but in
the absence of formal
evidence of ties with
any State, the interest
of a government in an
individual and the
attempt to exercise
protection may
provide cogent
evidence of N.
Applying effective link
test, refusal to give
DP would be
regarded on the
international plane as
severing important
links with the State.
Persons not enjoying
the protection of their
State (by internal law)
are de facto
stateless.
L. Nationality by
Estoppel. Estoppel or
preclusion is a
principle of IL. Where
the basic facts
concerning the
individual are
ambiguous, the
governments conduct
will provide the
answer. But this
should not be used in
opposition to status
based on effective
links.
XV. Presumptions
and Policy Rules on
the International
Plane.
A. Presumption vs.
Statelessness. Article
15 par 1 of UDHR
states that everyone
has the right to N. But
factors of stability and
effectiveness must be
considered.
B. Presumption of

60

continuance.
Presumption of act as
a principle of
evidence, but easily
rebutted. No general
presumption of
continuance of
nationality since such
may result in multiple
N + goes against
general principles of
effectiveness and
effective link doctrine.
Different from
continuity of N
principle where loss
of N only admissible if
another N is acquired
simultaneously.
C. Deprivation of N. If
the denationalization,
particularly of a
group, is part of a
breach of
international duty, it is
illegal. If it only
involves citizens
domiciled within the
frontiers of a state
who lack any other
links, there is no
delict but such
deprivation is not
entitled to recognition
by others because it
disregards the
effective link doctrine
and attempts to avoid
responsibility of
territorial sovereignty
and statehood.
D. Compulsory
Change of nationality.
Some tribunals and
jurists have stated
that IL does not
permit this. Note that
IL does not permit
states to impose their
N on alien residents
abroad. The right of
option will be favored
where the law or
treaty is ambiguous,

or where principle of
self-determination
gives ethnic
minorities the right,
but such is not lex
lata.
E. Substitution of N.
Automatic
substitution principle,
where N is ipso facto
withdrawn upon
acquisition of foreign
N, is generally
favored since it
avoids statelessness
and dual nationality,
Rules of IL requires
for the new Ns
recognition the
establishment of
sufficient links.
F. Right of
expatriation. Change
of N may, depending
on the facts, place
other states under a
duty to recognize the
new N. Note that
there is no rule that N
of origin has more
strength than a
naturalization.
G. Racial laws.
Denationalization on
grounds of a policy of
racial inequality or
persecution is
contrary to IL and
elementary principles
of humanity, breach
of UL if such groups
are expelled.
XVI. Nationality as a
status.
Nationality involves a
question of status. It
is recognized in the
doctrines of effective

link and dominant


nationality, that
establishment in a
community gives
status; arbitrary
deprivation of
nationality may not be
recognized d by other
states. Notion of
status connotes
stability and
effectiveness. In
accordance with
stability. Instruments
affecting nationality
should not be
retroactive in general.
But when there is no
period of usurpation
and where nationality
law is introduced by
the successor state
into ceded or
annexed areas with
retroactive effect with
qualifications as to
residence abroad and
the existence of
domicile in the area,
such satisfies the
principles of
effectiveness and of
effective or real link.
XVII. Functional
Approach to
nationality
It is common for
legislation and judicial
decisions to create
functional authority,
whereby parts of
national law are
applied to aliens on
the basis of
allegiance, residence,
and other
connections. There is
also a tendency to
bypass the nationality
criterion for purposes
related to national
security or to
international public
policies.

Magallona,
On
Dual Allegiance and
Dual Nationality
General Categories
of Duality
How dual nationality
arises:
1.
A
person
whose
parents
come from a
municipal
law
system
of
nationality based
on jus sanguinis
is born in a State
that adheres to
the
jus
soli
system
of
nationality
Ex. Person born in
UK of Filipino parents
2.

Retention by
a person of the
nationality of one
State
&
his
naturalization as
a
citizen
of
another State

Note: nationalization
does
not
always
entail the loss of prior
nationality
3.

Assumption
of
a
new
nationality
by
naturalization
with the retention
of the previous
nationality
on
account of the
requirement
of
the State of origin
that the effectivity
of naturalization I
another State is
subject to its
consent. Denial
of such consent
results in dual
nationality.

Note: expatriation or
the right to change
nationality
is

61

recognized.
But
actually, it is left to
domestic jurisdiction
of States & no rule of
IL
requires
its
provision.
4.

Conflict
of
laws re treatment
of
married
women

2 factors:
a. There
are
states which
provide under
their
laws
that marriage
of
their
women
nationals to
aliens shall
not result in
the automatic
loss of their
nationality
b. There
are
states which
provide
for
the automatic
acquisition of
nationality by
alien women
upon
marriage to
their
nationals
Result:
the
married woman
retains her own
nationality, even
as
she
automatically
acquires
her
husbands
nationality.
General
basis
&
Problems of Dual
nationality

the basic rule in


IL
is
that
nationality
is
within
the
domestic
jurisdiction
of

every State
thus a person
may have more
than
one
nationality,
because both in
theory
and
practice, a State
may confer its
nationality
on
those who have
not sought it in
the first place
dual or plural
nationality
then
arises as a result
of
concurrent
operation of two
or more municipal
law systems of
nationality when
as
a
consequence a
person
is
ascribed
the
nationality
of
each
the solution to the
problem of dual
nationality
lies
primarily in the
conflict rules of
the municipal law
system involved.
However,
significant steps
have been taken
to unify rules on
this
question,
which is why dual
nationality
as
become
the
subject matter of
intl regulation
dual
nationality
breaks
the
exclusive
character of the
legal
tie
(i.e.
nationality) which
binds the national
to his State. The
national acquires
the right to seek
protection from a
second
state
which
can
likewise claim his

allegiance. This
creates
the
problem
of
divided allegiance
but
from
the
viewpoint of the
individual
national,
dual
nationality is not
altogether
undesirable since
he is able to seek
diplomatic
protection
from
more than State
& he becomes
less dependent
on the protection
of the State of his
first nationality
dual
nationality
imposes
a
restriction
on
diplomatic
protection which
each State of his
nationality
may
give him because
a. the doctrine of
master nationality
(Fitzmaurice):
its reason for
being: to avoid an
impossible
conflict
the rules;
1. when
a
dual
national
is
resident
or
present in the
territory of either
of
his
nationalities, the
nationality of that
territory for the
time being takes
precedence
&
prevails
2. the state of one
of his nationalities
can never give
him,
or
his
interests,
diplomatic
protection
or
support, or bring
intl claim on his
behalf, vs. the

State of his own


nationality, even if
he is not at the
time resident in
that state & is
resident in the
territory of the
State desiring to
claim
rationale of these
rules: a State
cannot
be
normally
responsible to its
own acts with
respect to its
nationals

Intl regulation of dual


nationality
the present state
of IL makes no
prohibition vs. the
acquisition of a
second
nationality
but
there are rules
which
are
intended to avoid
dual nationality
from the Hague
Convention
on
certain questions
Relating to the
Conflict
of
National laws: a
State may not
afford diplomatic
protection one of
its nationals vs. a
state
whose
nationality such a
person
also
possesses.
He
may
renounce
any
one
nationality,
but
such renunciation
requires
the
consent of the
state
whose
nationality
he
desires
to
surrender
Montevideo
Convention on the
Nationality of Women

62

neither matrimony nor


its dissolution affects
the nationality of the
husband
Convention on the
Nationality of Married
Women
marriage,
dissolution
of
marriage,
&
change
of
nationality of the
husband during
the marriage shall
not automatically
affect
the
nationality of the
wife
As can be seen,
dual citizenship is
an
intl
phenomenon
because
it
presents
problems in the
relationship
between
states
with respect to an
individual who is
both their national
or citizen, as well
as
in
the
relationship
between a state
& the persons
who it considers
citizens under its
law
Since each State
has the right to
determine
for
itself
what
persons are or
may become its
nationals,
from
the
viewpoint
solely of one
State, whatever
nationality
in
addition to its
own its citizens
may possess or
acquire
is
a
matter that is
completely within
its
domestic
jurisdiction

From
the
viewpoint
of
domestic
law,
strictly
there
cannot arise a
problem of dual
nationality
because
the
State
merely
gives full effect to
its own nationality
ties
However,
other
states may have
claims
over
persons who it
considers as its
own nationals
The problem that
may arise from
this situation is
that such person
may invoke &
receive
diplomatic
protection
from
one State (of
which he is a
national)
with
respect to the
assertion
of
jurisdiction by the
other State over
him also as its
national
Magi: the fact is
in asserting its
jurisdiction,
the
State concerned
is simply dealing
with
its
own
national
&
in
doing so it cannot
possibly
be
internationally
responsible even
as to the other
State of which
that person is
also a national.
Only exception; if
the
matter
is
covered by a
treaty.

Survey of Philippine
Law & Philippine Law
& Policy

1. Jurisprudence
a. Before: dual
nationality
OK (Parado
vs. Republic)
b. Now:
rejection
of
dual
nationality
(Oh Hek how
vs. Republic)
2. Legislation
Marked
by
schizophreni
a
A. No
dual
nationality
allowed
Ex.
Revised
naturalization
law:
requiring
oath of allegiance
before one can
become a Phil.
Citizen
CA 63: loss
of Philippine
citizenship by
naturalization
in a foreign
country
B. Express
recognition
of
dual nationality
RA
2639:
a
Philippine
natural-born
citizen
who
acquires
the
citizenship of one
of the berian &
friendly
democratic Iberomerican countries
shall retain his
Philippine
citizenship, basta
may reciprocity at
treaty
RA 3834: extending
same privilege to a
Filipino who acquires
British citizenship
CA 63: rare case
of
divided
allegiance
w/o
involving
the
question
of

divided
nationality:
Filipino may be
divested
of
citizenship
by
rendering
services to, or
accepting
commission
in,
the armed forces
of
a
foreign
country
Magi: this case
emphasizes that
dual
allegiance
should not be
interpreted
as
limited to cases
of dual nationality
A
Philippine
citizen can be a
national
of
another
State,
w/o his intending
to be so, since a
state is not in a
position
to
determine
the
membership
of
the
political
community
of
other states. In
which
case,
whatever
the
Philippines may
do
within
its
jurisdiction,
to
prevent duality in
nationality
can
only be binding
within its own
jurisdiction
Instances
in
which
a
Philippine citizen
acquires
a
second
nationality:
1. Under
the
present Consti, a
person
whose
father or mother
is citizen of the
Philippines is ipso
facto a Philippine
citizen. Or if born
in UK, he is also
a
British

63

nationality
by
birth. If his father
is French, a third
nationality
attaches to him
2. Also
in
the
Consti,
female
Phil.
Citizen
retains
her
citizenship
despite marriage
to
an
alien,
unless she is
deemed to have
renounced such
citizenship.
If
under the laws of
her
husbands
State
she
acquires
his
nationality
automatically by
virtues
of
marriage,
dual
nationality case
again.
3. Chinese nationals
who
acquired
Filipino nationality
by naturalization
under the Parado
rule
are
still
formally Chinese
citizens under the
laws of Taipei for
failure
to
renounce
their
citizenship
4. In
Phil.
Law,
adoption does not
affect
the
citizenship of the
adopted
Social relevance of
the
Constitutional
Policy
Re:
dual
or
multiple
nationality,
the
Phil. adopts a
policy
of
indifference, i.e. it
asserts
full
jurisdiction over
its national within
its
territory
without respect to
other nationalities

which they may


have.
Note that his policy is
in
form
a
constitutional
mandate lacking legal
implementation.
However, due to the
pronouncements of
the Supreme Court,
this policy should be
regarded
as
an
already operative rule
which has in the
meantime acquired a
constitutional status.
As such it must have
the
effect
of
supervening statutory
provisions
&
executive
acts
expressly recognizing
dual nationality &
other cases of dual
allegiance,
without
need
of
further
legislative action.

enemy alien, where


he was detained until
1946. G proceeded
against his property
as that of an enemy
alien.

Case:
C. Nottenbohm
Case (1955)
FACTS:
Nottebohm (N) was a
German
national,
born in Germany in
1881.
In 1905, he
became a resident of
Guatemala (G), which
has since become the
center of his interests
and
business
activities.

G contended that Ls
claim is inadmissible
bec. of lack of prior
diplomatic
negotiations,
on
grounds of nationality
of the claimant and
for failure to exhaust
local remedies.

In October 1939, N
applied
and
was
granted naturalization
by Liechtenstein (L).
He returned to G
shortly thereafter.
In 1943, N was taken
into custody as a
result
of
war
measures
(WWII
broke out in Sept.
1939 when Germany
attacked Poland). He
was removed to the
US as a dangerous

After his release, N


sought to return to G
but G refused to
admit him. L instituted
proceedings before
the ICJ, espousing
Ns claim.
L asked the Court to
declare that G acted
in breach of its
obligations under IL in
arresting, detaining,
expelling & refusing
to readmit N. L further
asked for damages &
restoration of Ns
property in G, or the
payment of the value
of such property.

ISSUE: WON the


nationality conferred
to N gave L sufficient
title
to
exercise
protection in respect
of N as against G in
justification
of
proceedings before
the Court
HELD: No. G is
under no obligation to
recognize
the
nationality granted by
L to N under the
circumstances in this
case. L has no title to
exercise protection
its claim bef. the
Court is inadmissible.

RATIO (Courts train


of thought):
1 We will decide
the issue on the
international plane.
The
question
of
nationality is within
domestic jurisdiction,
but to apply to the
Court places it in the
IL plane the Court
will not decide WON
Ns naturalization was
in accord with the law
of L.
ICJ said: It is for
every sovereign
State, to settle by its
own legislation the
rules relating to the
acquisition of its
nationality[bec]
nationality has its
most immediate,
most far-reaching
effects within the
legal system of the
State conferring it.
Nationality servesto
determine that the
person upon whom it
is conferred enjoys
the rights & is bound
by the obligations
which the law of the
State in question
grants to or imposes
on its nationals
Nationality is within
the domestic
jurisdiction of the
State[But] To
exercise protection,
to apply to the Court
is to place oneself on
the plane of IL. It is IL
which determines
whether a State is
entitled to exercise
protection and to
seize the Court.
2 In a situation where
two
States
have
conferred nationality

64

on the same person


(dual
nationality),
arbitrators & courts of
3rd States determine
whether
the
nationality invoked by
the applicant State is
one which could be
relied
upon
as
against
the
respondent State
Should full intl effect
be attributed to the
nationality invoked by
the applicant State?
Is G obliged to
recognize
the
nationality granted
to N?
3 To decide this
issue,
arbitrators,
courts of 3rd States,
writings of publicists
and State practice
have
given
preference to the
Real and Effective
Nationality (REN)
principle2.
What does REN say?
It says that nationality
is a legal bond having
as its basis a social
fact of attachment, a
2

REN/Genuine Link
principle
is
NOT
general
intl
law
used to determine
nationality. It is a
procedural
&
specialized
norm
used by the Court
only for purposes of
this case in respect
to Ls claim. The
Court was careful to
say that the issue of
recognition
of
nationality decided
in the case is not for
all
purposes
but
merely
for
the
purposes
of
admissibility of the
application and that
what is involved is
not the recognition
by all States but
only by G.

genuine connection
of existence, interest
&
sentiments,
together with the
existence
of
reciprocal rights &
duties. Nationality is
the
juridical
expression of the fact
that the individual
upon whom it is
conferredis in fact
more
closely
connected w/ the
population of the
State
conferring
nationality than with
any other State.
What factors are
considered? habitual
residence
of
individual concerned,
center
of
his
interests, family ties,
participation in public
life,
attachment
shown by him for a
given
country
&
inculcated
in
his
children etc.
Why is there a need
to
establish
the
genuine link bet. the
individual and the
State? Bec. by taking
up the case of one of
its subjects and by
resorting
to
diplomatic action or
intl
judicial
proceedings on his
behalf, a State is in
reality asserting its
own rights its right
to ensure, in the
person of its subjects,
respect for the rules
of IL.
4 REN is not
inconsistent with the
fact that IL leaves the
fixing of rules of
nationality within the
competence of
States. It just says
that a State cannot

claim that the rules it


has thus laid down
are entitled to
recognition by
another State unless
it has acted in
conformity with this
general aim of
making the legal
bond of nationality
accord with the
individuals genuine
connection with the
State which assumes
the defence of its
citizens
5 In the CAB, the
FACTUAL
ISSUE
them becomes At
the time of Ns
naturalization (period
preceding,
contemporaneous
and following such)
does N appear to
have been more
closely attached by
his
tradition,
establishment,
interests,
activities,
family ties, intentions
for the near future to
L than to any other
State?
No. Ns actual
connections with L
are tenuous. He had
no settled residence
in L at the time of his
application and no
intention of settling
there as proven by
the fact that he
returned to G shortly
after his
naturalization. The
requirement that one
must be a resident of
L for three yrs bef one
may be naturalized,
was waived in Ns
case but no reason
was given for such
waiver. N had no
economic interests in
L nor did he have any
intention of

transferring some of
his business activities
there.
The only links bet. N
& L were his short
trips to L in 1931 to
visit a brother who
lived there. It appears
that N sought L
citizenship to acquire
the status of a neutral
national (get rid of his
German
nationality
bec. of the war)
before returning to
Guatemala.
The
naturalization
granted by L was not
based on any real
prior connection with
L, nor did it alter the
manner of the life of
the
person
upon
whom
it
was
conferredit
was
lacking
in
the
genuineness requisite
to an act of such
importance, if it is to
be entitled to be
respected by a State
in the position of
Guatemala. It was
granted
without
regard to the concept
of nationality adopted
in intl relations.

Notes:
Nationality- this is the legal nexus t
exercise protection over subject ind
no genuine link between the individ
state has no locus standi to represe

A state may bring a claim to the trib

1. injury to itself
2. espousal of a case of one o
Diplomatic protectionsettlement of a dispute.

pursuanc

Espousal- under CIL, there is a du


exhaust local remedies as a cond
may espouse his case.

65

ISSUE:
Nationality- a juridical form that
reflects social,WON
economic
Belgium has the right
and political attachments.
to exercise diplomatic
protection
2 legal principles that determine
nationality:(DP) of
Belgian shareholders
in was
a borncompany
1. jus soli- where the person
in
2. jus sanguine- what theincorporated
nationality of his parents
Canada
are.
(the
measures
complained
of having
D. Barcelona
been taken in relation
Traction
Co.
not to any Belgian
Case (1964)
national but to the
FACTS:
The
company itself)
Barcelona Traction,
Light & Power Ltd is a
HELD: No
holding
company
incorporated
in
RATIO:
Toronto,
Canada
where it had its head
Obligations,
the
office.
performance of which
is the subject of DP
For the purpose of
are inter se which
developing an electric
means that in order to
power
and
bring a claim in
distribution system in
respect of the breach
Spain, it formed a
of such an obligation,
number
of
a state must first
concession
holding
establish its right to
subsidiary
do so. It must show
companies.
that:
a. the defendant
After
WW1,
state
has
Barcelonas
share
broken
an
capital came to be
obligation
largely
held
by
towards the
Belgian nationals.
national state
in respect of
In 1936, the payment
its nationals
of interest on bonds
b.
only the party
which Barcelona had
to whom an
issued
was
intl obligation
suspended by the
is due can
Spanish govt due to
bring a claim
the Spanish Civil War.
in respect of
Eventually,
the
its breach.
company
was
declared bankrupt .
Belgiums capacity is
to be determined by
Representations
in
the
behalf
of
the
existence/absence of
company
were
a right to protect the
initially made by the
rights its nationals
British, Canadian, US
suffered
as
and Belgian govt.
shareholders
in
a
Canadas
company
not
of
interposition ceased
Belgian
nationality.
entirely in 1955.
Theres no treaty on

the subject between


the parties, court said
it had to resort to
general rules on DP.
Theory of Corporate
personality
The concept of the
company is founded
on a firm distinction
between the rights of
company and those
of the shareholders.
Only the company,
which was endowed
with legal personality,
could take action in
respect of matters
that were of corporate
character. An act
infringing only the
companys rights did
not
involve
responsibility towards
the
shareholders,
even if their interests
were affected.
To
enable
shareholders to act
on their own, the
violation must be
against their direct
rights which is not the
situation in the case
at bar.
No
rules
of
IL
expressly confer a
right
on
the
shareholders State to
exercise DP. But the
court said that under
special
circumstances, State
may be allowed to
exercise DP which
are:
a. where
the
company
has ceased
to exist not
present
in
CAB because
a company in
a precarious
financial
situation
doesnt mean

that its dead.


Its
still
capable
of
defending its
own
rights
and that of its
shareholders.
b. Where
the
protecting
state of the
company
lacks
capacity to
take action
rebutted by
the fact that
Canada had
made
representatio
ns in behalf
of
the
company and
so
was
deemed
by
the court to
be the one
who should
file a claim.
In relation to this, the
court discussed 2
theories
of
incorporation or how
corporate nationality
is determined.
a. Incorporation
theory right
to
protect
falls on the
state under
which
the
corporation
was formed.
In CAB, its
Canada.
b. Siege Social
right to
protect is in
the state in
which
the
corporation
carries out its
main
operations
and
has
headquarters
. In CAB, its
Canada.

66

The court in CAB


adhered to the theory
of
incorporation.
Thus, its Canada and
not Belgium who has
the right to exercise
DP.
Other issues:
RE claim that state
can exercise DP if its
economic
interests
were prejudiced by
investments of its
nationals abroad
- allow
ed
only
if
there
s
a
speci
al
treaty
or
agree
ment
betw
een
the
partie
s. In
CAB,
no
such
thing.
RE equity
-

Court
didnt
want
to
use
this
beca
use it
woul
d
open
the
door
to
insta
bility
of
intern
ation
al
relati

ons.

that international orgs


have their own legal
personality under any
law and so are
Notes:
subjects
of it was
ICJ: a corporation is a national
of the state where
international
law
incorporated (doctrine of incorporation).
order.
In municipal law (which the ICJ considered), the
of from
personality of a corporation isTypes
separate and distinct
Intergovernmental
the personality of its shareholders.
Organizations
2 kinds of intl oblig:
1. Universal v Closed
Organization
1. inter se- between states
only
2. erga omnes- to the whole intl community
Universal strive at
membership
of doctrine
all
The ICJ in this case elevated the
incorporation
as
states a and
at even
a norm of IL. The Court assumed
high aims
position,
making principles.
rules for the
precluding the application of equitable
entire world e.g. UN
C.
International
Closed covers only
Organizations
a limited group of
states
who
have
Schermers,
The
similar
interests
or
International
cultural
and
political
Organizations
patterns; may be
A. CATEGORIES OF
closed
to
states
INTL
outside a particular
ORGANIZATIONS
group and usually
addresses
Non-governmental
themselves
to
a
Org

all
org
particular
region
e.g.
established
by
OEC, OIC
individual
citizens
even if they perform
2.
General
v
important govt tasks.
Functional
It must be established
under law of a State
General field of
to
obtain
legal;
operation is not
personality.
limited to one or more
special subjects; can
Governmental
discuss any subject
Organization
insofar as it has not
established by
been excluded; never
interstate agreement
has many powers cos
which is usually
of the width of field of
expressed in a treaty
operation, can draw
which is usually
attention to many
called the
problems but
Constitution of the
decisions of binding
Org.
nature are rarely
possible
this
constitutional treaty
Functional operate
distinguishes a govt
in a narrowly defined
org from an NGO
field
It is now recognized

3. Intergovernmental
v Supranational
Intergovernmental
intl orgs between
states; legally the
States are members
but in practice it is the
org which promotes
cooperation between
govts
Supranational have
real powers above
the level of the State;
charged w/ making
legislation applicable
to territory of member
states
- sovereignty
has been transferred
from the member
states
to
the
organization
(make
laws binding to indiv
citizens of member
states
w/out
involvement of natl
govt)
financially
independent; always
functional org e.g.
European Community
II. LEGAL STATUS
PERSONALITY
A. Capacity to Act
Under National Law
- provided for
by the orgs
constitution
- includes;
exercise of its
functions,
capacity
to
contract,
acquire
&
dispose
of
immovable
property,
institute legal
proceedings
- orgs
have
legal
personality=
foreign legal

67

person
B. Liability Under
national Law
- liable for their
contracts in
the
same
way as any
individual
citizen
and
for
noncontractual
obligations
- but in noncontractual
obligation,
orgs
may
claim
immunity w/c
makes
it
impossible to
establish
liability of an
intl org
C. Liability Under Intl
Law
- when liability
under
national law
cannot
be
established,
org can still
be
liable
under intl law
for damages
caused
to
indiv citizens
- if orgs dont
have
own
tribunals,
damages
have to be
settled along
diplomatic
channels
D. Capacity to Act
Under IL
1. General
- powers
are
limited
to
those
expressly
granted
by
their
constitution
- capacity
to
act
not

presumed but
has to be
demonstrated
ICJ accepted Intl
personality of UN
under ff grounds:
i.
t
o
a
c
h
i
e
v
e
e
n
d
s
o
f
U
N
,
a
tt
ri
b
u
ti
o
n
o
f
i
n
tl
p
e
r
s
o
n
a
lit
y
is
i
n
d
is
p
e
n
s
a
b
l

ii.

iii.

e
O
r
g
is
e
q
u
i
p
p
e
d
w
/
o
r
g
a
n
s
&
h
a
s
s
p
e
ci
a
l
t
a
s
k
s
C
h
a
rt
e
r
h
a
s
d
e
fi
n
e
d
p
o
si
ti
o
n
o
f

m
e
m
b
e
rs
t
a
t
e
s
i
n
r
e
l
n
t
o
o
r
g
b
y
r
e
q
u
ir
i
n
g
t
h
e
m
t
o
g
iv
e
e
v
e
r
y
a
s
si
s
t
a
n
c
e
a
n
d

68

t
o
a
c
c
e
p
t
t
h
e
d
e
ci
si
o
n
s
o
f
S
C
,
b
y
g
iv
i
n
g
o
r
g
l
e
g
a
l
c
a
p
a
ci
ty
,
i
m
m
u
n
it
y
a
n
d
p
ri
vi
l

iv.

e
g
e
s
O
r
g
e
n
j
o
y
s
f
u
n
c
ti
o
n
s
a
n
d
ri
g
h
t
s
w
/
c
c
a
n
o
n
ly
b
e
e
x
p
l
a
i
n
e
d
o
n
t
h
e
b
a
si
s
o

f
t
h
e
p
o
s
s
e
s
si
o
n
o
f
l
a
r
g
e
m
e
a
s
u
r
e
o
f
i
n
tl
p
e
r
s
o
n
a
lit
y
At present, it is
generally recognized
that all public S org
has some intl legal
personality limited to
the fields in w/c they
have competence to
operate. In practice,
virtually all intl orgs
perform acts under
intl law.
2. Right to Bring
Intl
claim
(Reparations
Case)

making
capacity
intl org has
power
to
conclude
treaty
w/
other
subjects
of
intl law
intl org has
not
been
accepted as
parties
to
large
multilateral
law-making
treties

4. Right
to
establish
diplomatic
relations
- normal role of
orgs
accredited w/
permanent
missions is
to
keep
contact
w/
Secretariat of
the org & w/
organs
in
session
- reps of orgs
to States &
Org perform
role
comparable
to that of
diplomat
5. Right
to
recognize
other
subjects of IL
- Intl
orgs
officially have
no power to
recognize
new subjects
of
law
(admission to
UN
is
of
greater
importance
than
recognition)
- Recognition

3. Treaty-

69

by intl org
cannot
be
seen
separately
from
recognition
by
other
states
DURATION
A. Establishment
- Intl org is
born
when
treaty
containing its
constitution
comes
into
force
B. Dissolution
- 2
reasons:
(1) task has
been
completed (2)
another org
has
taken
over
its
functions
- in
practice,
both are rare
- almost every
dissolution of
intl
org
contains
aspects
of
succession
and
termination
- Methods:
- consti can
empower
gen.
Congress
to
dissolve
org
by
qualified
majority
dissolved
after
certain
period of time
- provided for
in addl docs
upon
orgs
establishmen
t
- decision of
gen congress

even if no
consti
empowermen
t
Consequenc
es
of
Dissolution
o other
orgs
take
over
remai
ning
functi
on
even
w/out
offici
al
transf
er
o annul
s
certai
n
legal
acts
of
orgs
o bindi
ng
decisi
ons
of
orgs
will
proba
bly
not
lose
their
force
o orgs
w/c
are
mean
s of
coop
eratio
n:
inters
tate
agree
ment
w/c
will
conti
nue

witho
ut org
orgs
w/c
are
legisl
ating
body:
incor
porat
ed in
natl
legal
order
empl
oyee
s
lose
jobs
but
not
rights
prope
rty of
org
distri
buted
propo
rtiona
lly to
mem
ber
state
s
if
transf
erred
,
value
shoul
d be
credit
ed to
mem
ber
state
s

III. FUNCTIONS AND


POWERS
-

All Intl Org


(IO)
cam
make
recommendat
ions
to
member
states

All IO can
issue
declarations
All IO have
power
to
propose draft
conventions
General Org:
vaguer
functions
more
of
political
nature
Sec. Council:
can
issue
binding
decisions

IV. INSTITUTIONAL
STRUCTURE
Participation
A.
Categories
of
Participants
1. Full
members
usually
consti
provides
criteria
that
qualifies
one
for
members
hip
share
responsib
ility
for
decisionmaking,
bears
costs
2. Associate
Members

does
not fulfill
full
requirem
ents for
full
members
hip but is
sufficientl
y
intereste

70

d in the
work of
the
org
for some
form
of
participati
on
o same
rights
as
mem
bers
exce
pt
cant
vote
in
plena
ry
organ
&
cant
be
chos
en in
exec
utive
board
3. Partial
members

participat
es
in
some
organs
w/out
being
members
of the org
itself; no
vote; pay
contributi
ons; may
be
chosen in
executive
boards of
organs
w/c they
are
members
4. Affiliate
members

concerne
d w/ the

specializ
ed
interest
of the org
or related
activity;
represent
ed in at
least
1
organ of
org
5. Observer
s

usually
for nonmember
states;
allowed
by
org
pres
to
make
statemen
t; right to
receive
docs of
org
6. Consultat
ive
Status
usually
granted
to
NGOs;
less
rights
than
observer
s
Requ
ireme
nts:
1. h
a
s
a
n
e
s
t
a
b
li
s
h
e
d
h

e
a
d
q
u
a
rt
e
r
s
w
/
e
x
e
c
u
ti
v
e
o
ffi
c
e
r
s
2. h
a
s
a
d
e
m
o
c
r
a
ti
c
a
ll
y
a
d
o
p
t
e
d
c
o
n
s
ti
t
u
ti
o
n

3. h
a
s
a
u
t
h
o
ri
t
y
t
o
s
p
e
a
k
o
n
b
e
h
a
lf
o
f
it
s
m
e
m
b
e
r
s
B.
Duration
of
Membership
1. Entry
into
effect
of
membership
- orig
members:
when consti
obtained
sufficient
ratification
- when
both
org & states
has accepted
such
membership
- from date of
admission to
org
- officially
when act of

71

ratifying
consti
has
been
deposited

decision
leaving more
detailed tasks
to smaller org

2. termination of
membership
- withdrawal
from the org
of
the
member state
(unilateral
withdrawal
allowed)
- expulsion of
the member
state by the
org
(not
possible if no
consti
provision to
that effect)

B. Junior Congress
- secondary
plenary organ
composed of
lower ranked
civil servants
w/c
can
prepare the
meetings of
the ministers
and take the
minor
decisions

C.
Representation of
Members
1. by
sending
delegations
- each
delegation
has 1 vote
whatever the
no.
of
delegates
sent
- usually
required
to
be composed
of
cabinet
members
- prove
representatio
ns
by
presenting
credentials
PLENARY ORGANS
A. General Congress
- orgs
supreme
organ
in
which
all
member
states
are
represented
- takes
only
broad policy

C.
Specialized
Congresses
- handle very
technical
subjects
D.
Plenary
Commissions
- commissions
of the general
congress
meeting
during
the
time of the
congress and
preparing its
decisions
NON-PLENARY
ORGANS
A. Task
- for IO w/large
membership
- functions: (1)
Take
decisions of
such
minor
importance
that these do
not
require
the gathering
of reps from
all member
states
(2)
usually make
the
preparatory
act of the

general
congress
B. Composition
1. size:
most
universal
orgs have a
council
or
exec
board
composed of
delegation
1/5- 1/3 of
the
membership
of org
2. components:
gen
congress
appoints
the
member
states
entitled
to
compose
the
non-plenary
organ
- some constis
require
that
individual experts
instead of govt
rep be appointed
for
judicial
organs: individual
experts
since
independence is
important
for
highly
political organs:
govt reps due to
requirement
of
consistency
w/policy of other
organs
3.
equitable
representation of
interests
a. impt
that
the
main
intere
sts
repre
sente
d in
the
congr
ess
are
also
repre
sente

d in
the
nonplena
ry
organ
so as
to
guara
ntee
that
the
propo
sed
drafts
get
suffici
ent
supp
ort in
the
congr
ess.
b. Balan
ced
geogr
aphic
ally &
in the
techn
ical
intere
sts
the
org
has
to
look
after
4. election of Nonplenary organs
2 systems:
1. org as a
whole
selects
the
members
from all
regions
and
all
interest
groups
results:
org
will tend to
appoint those
member
states
or
persons

72

closest to the
average
opinion of the
org
as
a
whole
e.g.
World Bank
2. each
region or
interest
group
appoints
its
own
members
result:
the
region
or
interest group
will
take
those states
w/c are most
representativ
e
of
the
majority
of
the
region
e.g. UN
5. Replacements
- period after
w/c
the
members are
to
be
replaced
varies
according to
the task of
the organ.
- Most
periodically
replace part
of
their
membership
so
as
to
prevent
a
situation
where
all
members are
new
and
inexperience
d.
OTHER ORGANS
A.
Parliamentary
Organs
- background:
some states
form of govt
is one where

the executive
is controlled
by
a
parliament
elected
by
the
people.
When powers
are
transferred
from
these
States to an
IO, the natl
parliaments
lose control
over
these
powers.
Parliamentar
y organs in
the org are
then created
to
compensate
for this loss.
May either be
elected
directly
by
the people of
the member
states
or
appointed by
the
natl
parliaments
of
the
member
states
Usually can
make
only
recommendat
ions.

B.
Jurisdictional
Organs
- court charged
with
the
settlement of
disputes
between the
member
states,
w/judicial
control over
the legality of
decisions of
the org or w/
the
admin
jurisdiction
over
staff
matters

most IOs just


refer to ICJ
not limited to
courts,
can
be
w/
a
judicial
character
only
e.g.
Human
Rights
Committee
composition:
independent
legal experts
w/ long term
appointments
and
not
entitled
to
receive
instructions
from
their
governments.

SECRETARIAT
A. Task
- preparation
of
the
meetings of
the
organs
e.g.
proper
mgt,
admin
supervision,
infogathering, etc
- head:
Secretary
General
o appoi
nted
by
the
gener
al
congr
ess
o respo
nsibl
e for
the
appoi
ntme
nt of
other
civil
serva
nts
using

criteri
a of
comp
etenc
e +
equit
able
geogr
aphic
al
distri
butio
n
-

granted
certain
immunities &
privileges
such as tax
exemptions
to guarantee
independent
operation

B. Headquarters
- literally
the
building
which house
the
secretariat &
which often
hosts
the
meetings of
the org
- most org tend
to cluster in
Vienna and
Geneva since
neutral
territory
+
good
infrastructure
C. International Civil
Servants
- the
permanent
staff working
for the org
- must
be
professionally
qualified and
recruited on
an equitable
geographical
basis
- usually
immune from
local taxation

73

&
local
jurisdiction to
guarantee
their
independenc
e can be
waived
V. FINANCING
-

costs
are
paid by the
member
states
according to
capacity
to
pay
+
interests that
the
states
have in the
org
Rule:
No
state should
pay
more
than 25% of
the total cost
or less than
1%
Associate
and
partial
members pay
a lower rate
than
full
members
Contributions
must
cover
all
administrativ
e expenses,
e.g.
for
meetings,
salaries,
upkeep
of
buildings.
If
special
activity,
special
budgets
financed
through
voluntary
contributions
are
usually
created
Also receive
money from
private

sources
Tunkin, Theory of
International Law
E. Charters
of
International
Organizations:
Treaties
or
Constitutions?
I.

Constitutional
Theory

Charters
of
International
Organizations (Ios),
specially the UN, are
basically constitutions
and only partially
international treaties.
Therefore the law on
treaties
is
not
applicable to them.

to prove that this


practice (of treating
charters
as
constitutions)
conforms
with
international law and
is not a violation of
such.
II.

Treaty
Theory

Charters of IOs are a


special category of
international treaties.
The
attempt
to
ascribe
certain
features
of
state
constitutions to said
charters
has
no
justification, since IOs
are
qualitatively
different from states.
Tunkin:

Charters of IOs as
constitutions
are
flexible documents
from
whose
provisions one may
digress in practice,
and this digression
will not be a violation,
but a modification of
the charters.
Although by their
origin the Charters of
IOs are international
treaties, as regards
their operation, they
are
basically
not
treated as treaties.
Tunkins Critique:
Politically: this theory
is worked out and
propagandized
strenuously in the
West because it is
aimed at justifying the
numerous violations
of the charters of
general IOs, under
the
pressure
of
imperialist powers.
In re operation : fails

Said charters are


international treaties
having
certain
peculiarities, treaties
sui generis.
In
contrast to the usual
multilateral treaties,
such charters create
a
permanent
international
entity
which functions on its
basis. It defines not
only the rights and
duties of state-parties
to the treaty, but also
the purposes and
tasks
of
the
organization,
the
mutual relations by
which
the
organization and its
member-states, etc.
Conclusion: it is a
more
complex
phenomenon than the
ordinary multilateral
treaty. Therefore, it is
but natural that the
conclusion and the
operation of such
would be with certain
peculiarities. BUT, all
the basic provisions

of the law of treaties


are applicable to such
charters (albeit with
some
adaptations),
especially the ff:
1. conclusion
and
entry into force of
multilateral
treaties, except
some provisions
on reservation
2. invalidity
treaties

of

3. amendment and
interpretation of
treaties
4. operation
of
international
treaties,
especially pacta
sunt servanda
5. significance
treaties for
states

of
3rd

*Review Art. 5 of
Vienna
Convention
on
the
Law
of
Treaties
F. Jurisdiction
of
International
Organizations
I.

the inherent
jurisdiction
(competence
inherent) theory

Concept:
The
practice of the UN
and other Ios shows
that their activity goes
beyond the limits
provided by their
charters. This then
means that there
exists a generally
recognized norm of
international law to

74

the effect that IOs can


undertake activities
necessary to achieve
its
purposes
irrespective of the
specific provisions of
the
organizations
charter.
Definition: The legal
capacity of IOs to
perform sovereign
and international acts
is, like that of States,
not confined to what
can be positively
adduced from their
constitutions,
but
comprises all acts
which do not impose
new obligations upon
parties who are not
subject
to
their
jurisdiction.
If the organizations
constitution does not
define matters with
which
the
organization
can
deal, then it can deal
in any matter.
And if the constitution
does not preclude
certain types of acts
or
exhaustibly
enumerate the acts
which
the
organization
may
perform, then it can
perform any type of
acts.
Tunkins Critique:
1. Has no basis in
international law
They are correct in
saying
that
the
practice
of
contemporary
IOs
often goes beyond
the provisions of their
charters BUT the
conclusions
they
draw from this is
wrong. Just because

there exists a practice


of IOs going beyond
the limits of their
charters does not
automatically mean
that there also exists
a
generally
recognized norm of
international
law
regarding
the
inherent jurisdiction
of IOs. A customary
norm of international
law
arises
from
international practice
in consequence of
the recurrent action of
States. But practice
in itself is not yet a
norm of international
law. The process of
forming a customary
norm in international
law is completed only
with the recognition
by States of
a
customary rule as a
norm of international
law. Here, no such
recognition is shown.
2. has no basis in
charters
Also, this concept
does not find basis in
the
IOs charters
themselves.
There
are no IOs whose
charters
would
empower them to use
any means to achieve
the
purposes
stipulated in their
charters.
Contemporary
IOs
are created by states,
and only states may
define the character
of each organization
created by them, its
purposes, and the
means by which they
place at its disposal.
This is done by treaty
(the
organizations
charter)

3. Contravenes
Pacta
Sunt
Servanda
The
Inherent
Jurisdiction
Theory
assumes that an IO
created by treaty
between States is
immediately
separated from its
base. The concept of
Inherent Jurisdiction
then contravenes the
pacta sunt servanda
principle.
States
should fulfill their
obligations in good
faith according to the
Charter
of
the
organization,
more
should
not
be
required
of
the
member-states than
what is provided by
the Charter, and that
member -states have
the right to require
that the organization
act in conformity with
its charter.
4. Contravenes
principles
interpreting
international
treaties

in

Art. 31 of the Vienna


Convention on the
Law
of
Treaties
establishes that: A
treaty
must
be
interpreted in good
faith in conformity
with the ordinary
meaning
of
the
provisions
in
the
context of the treaty
and in the light of the
subject and purpose
of the treaty.
Meanwhile
the
concept of Inherent
Jurisdiction ascribes
a certain magical
force wrested from
the context of the

treaty, transforming
them into something
independent
and
essentially
superseding
the
entire treaty.
5. Contravenes
Legal Nature of
Contemporary
IOs
The
Inherent
Jurisdiction
theory
contravenes the legal
nature of IOs, as
interstate formations
of
peaceful
coexistence.
II.

The Implied
Powers
(Competence
Implicit)
Theory
Concept:
(as
formulated in the
Reparations
case)
Under
international
law, the organization
must be deemed to
have those powers
which, though not
expressly provided in
the
Charter,
are
conferred upon it by
necessary implication
as being essential to
the performance of its
duties.
Rationale:
presumption of the
conformity
of
jurisdiction to the
purposes
and
functions of an organ

principles
of
effectiveness
Meaning:
There
exists a norm of
international
law
according to which
one should imply that
member-states of an
international
organization
have

75

granted
it
that
jurisdiction which is
necessary
to
effectuate
the
purposes
and
functions
of
the
organization,
and
those powers which
may be reasonably
deduced from the
purposes and the
functions
of
the
organization.

of such jurisdiction in
each
individual
instance is a question
of interpreting the
charter
of
the
organization
with
those additions and
changes which might
have been formed in
the course of its
activity on the basis
of agreement of the
members of the given
organization.

Tunkins Critique:
Of course, in practice
it is impossible to
provide
for
all
possible instances of
future activity in the
charters of the IOs.
Therefore in working
out the charters the
parties
inevitably
presuppose that a
number of questions
of the activity of an IO
remain to be decided
on the basis of the
charter provisions in
the process of the
fixing
of
the
organization at this
level, there still are
implied powers.
But note:
implied
power is not a norm
of
general
international
law.
(see discussion on
formation of norms
under the IH theory,
which also applies to
this case). But here,
the question is the
creating
of
new,
subordinate and more
precise
norms
through
additional
agreements among
the members.
Thus: implied powers
of an organization
can occur.
The
question
of
the
existence and extent

Implied Power
Theory
Under
international
law, the UN must be
deemed
to
have
those powers which,
though not expressly
provided
in
the
Charter,
are
conferred upon it by
necessary implication
as being essential to
the performance of its
duties.
Tunkin:
Implied powers is
not a norm of general
international law. The
1949
Advisory
Opinion of the ICJ
goes farther than
what corresponds to
contemporary
international law. The
implied power of an
IO in reality exists
when in order to
exercise
the
jurisdiction
clearly
granted
to
the
organization, it is
necessary to resort to
actions which not
only
do
not
contravene
the
charter
of
the
organization but also
are customary in
international practice.
Case:
Reparation

for

Injuries Case (1949)


I. Issues
The ICJ rendered
this
advisory
opinion
in
response to the
ff. issues:
a) In the event
of an agent of
the UN in the
performance
of his duties
suffering
injury in the
circumstance
s
involving
the
responsibility
of a State,
has the UN,
as
an
international
organization,
the capacity
to bring an
international
claim against
the
responsible
de jure and
de
facto
government
with a view to
obtaining the
reparation
due
in
respect of the
damage
caused (a) to
the UN, (b) to
the victim or
to
the
persons
entitled
through him?
b) In the event
of
an
affirmative
reply on point
1(b), how is
action by the
UN to be
reconciled
with
such
rights as may
be
possessed by
the State of
which
the

victim is
national?

II. Capacity to bring


an international
claim on its own
behalf
a) Definition:
the capacity
to resort to
the
customary
methods
recognized
by IL for the
establishmen
t,
presentation,
and
settlement of
claims
e.g.
protest,
request
for
an
enquiry,
negotiation,
and request
for
submission to
an
arbitral
tribunal
b) Does the UN
possess
international
personality
i.e. capable
of
availing
itself
of
obligations
incumbent
upon
its
members?
i) Not
settled by
actual
terms of
UN
Charter:
look into
intent
ii) Nature of
subjects
of
IL
depende
nt upon
needs of
communit
y: But to
achieve
these

76

ends the
attributio
n
of
internatio
nal
personalit
y
is
indispens
able.
iii) Members
,
by
entrustin
g certain
functions
to it, with
the
attendant
duties
and
responsib
ilities,
have
clothed it
with the
compete
nce
required
to enable
those
functions
to
be
effectivel
y
discharge
d.
(1) Chart
er
requir
es
Mem
bers
to
give
it
ever
y
assist
ance
in
any
actio
n
under
taken
by it
(Art
2, par
5);
gives

UN
legal
capa
city,
privil
eges,
and
immu
nities
in the
territo
ry of
each
of its
Mem
bers;
provi
des
for
concl
usion
of
agree
ment
s with
betw
een
the
UN
and
its
Mem
bers.
(2) UN is
a
politic
al
body
charg
ed
with
politic
al
tasks
of an
impor
tant
chara
cter
(Art
1,
Chart
er) by
empl
oying
politic
al
mean
s.

iv) UN is an
internatio
nal
person,
subject to
internatio
nal
law
and
capable
of
possessi
ng
internatio
nal rights
and
duties,
and that
it has the
capacity
to
maintain
its rights
by
bringing
internatio
nal
claims.
(1) Not
the
same
as
sayin
g that
its
legal
perso
nality,
rights
, and
dutie
s are
the
same
as
that
of a
State
.
(2) Wher
eas a
State
poss
ess
the
totalit
y of
intern
ation
al

rights
and
dutie
s
recog
nized
by IL,
the
rights
and
dutie
s of
an
entity
such
as
the
UN
must
depe
nd
upon
its
purpo
ses
and
functi
ons
as
speci
fied
or
impli
ed in
its
const
ituent
docu
ment
s and
devel
oped
in
practi
ce.
(3) Mem
bers
have
endo
wed
the
UN
with
capa
city
to
bring
intern
ation

77

al
claim
s
when
nece
ssitat
ed by
the
disch
arge
of its
functi
ons.
c) Damage
caused to the
interests
of
the UN is a
breach of an
international
obligation,
and the UN is
justified
in
giving
its
claim
the
character of
an
international
claim.
III. Capacity
to
recover damages
on behalf of its
agents
a) Traditional
rule
of
diplomatic
protection
does not give
a
negative
answerso
pwede?
i) Present
claim not
brought
by
a
State
ii) Exceptio
ns
involving
claims
brought
by
a
State on
behalf of
persons
not
having its
nationalit
y

iii) Bases of
diplomati
c
protectio
n:
(1) Defe
ndant
state
s
breac
h of
oblig
ation
to
natio
nal
State
in
respe
ct of
its
natio
nals
(2) Only
the
party
to
who
m an
intern
ation
al
oblig
ation
is
due
can
bring
the
claim
b) Charter does
not expressly
confer upon
the UN the
capacity
to
include
damages to
its agents in
its claim for
reparation
i)

Under
internatio
nal law,
the
UN
must be
deemed
to have
those

powers
which,
though
not
expressly
provided
in
the
Charter,
are
conferred
upon it by
necessar
y
implicatio
n
as
being
essential
to
the
performa
nce or its
duties
(necessa
ry
intendme
nt).
(1) Appli
ed by
Perm
anent
Court
of
Intern
ation
al
Justic
e to
the
ILO
in its
Advis
ory
Opini
on
No.
13 of
July
23,
1926.
(2) Need
for
prote
ction
for
agent
s in
the
perfo
rman

ce of
offici
al
dutie
s
recog
nized
in the
Prea
mble
to the
Resol
ution
of
Dece
mber
3,
1948.
(a) E
c
h
o
e
d
i
n
C
h
a
rt
e
r
p
r
o
vi
si
o
n
s
a
n
d
c
o
m
p
l
e
m
e
n
t
a
r
y
a
g
r

78

e
e
m
e
n
t
s
(b) I
m
p
o
rt
a
n
c
e
o
f
d
u
t
y
t
o
r
e
n
d
e
r

e
v
e
r
y
a
s
si
s
t
a
n
c
e

(
A
rt
2
,
p
a
r
5
).
(3) Guar
antee
of

prote
ction
is
esse
ntial
to the
indep
ende
nce
of an
agent
in the
perfo
rman
ce of
his
duty
(funct
ional
prote
ction)
.
ii)

y
with
internatio
nal law,
to bring
into being
an entity
possessi
ng
objective
internatio
nal
personalit
y, and not
merely
personalit
y
recognize
d
by
them
alone,
together
with the
capacity
to bring
internatio
nal
claims.

UN
brings
action in
its
own
right for a
breach of
internatio
nal
obligation
s.

V. Reconciling the
rights of the UN
vis--vis State of
nationality

IV. Capacity to bring


an international
claim against a
non-member
a) UN
has
capacity
WON
defendant
State is a
member
of
the UN
i) Fifty
States,
represent
ing
the
vast
majority
of
the
members
of
the
internatio
nal
communit
y, had the
power, in
conformit

a) No rule of law
assigns
priority
to
one, to the
exclusion of
the other.
i) find
solutions
inspired
by
goodwill
and
common
sense
ii) eliminate
risk
of
competiti
on
by
conventio
n,
agreeme
nts, and
emergen
ce
of
practice
b) What if agent

bears
the
nationality of
defendant
State?
Nationality is not
pertinent
to
the
admissibility of the
claim: action based
on status as agent,
not on nationality.
Notes:

Magi- UN was accorded sui gener


ICJ.

On intl orgs as subjects of law: th


must first be established by their c
Their status then is determined by
by general of customary law.
Criteria of legal personality:

1. a permanent association o
subjects equipped with orga
2. a distinction in terms o
purpose between the org an
3. existence of legal powers e
plane and not solely within
one or more member states

VI. International
Responsibility
A.
State
Responsibility
Arechaga,
International Law in
the Past Third of a
Century (1978)
State
responsibility
occurs:
a) by a direct injury
to the rights of
another State; or
b) by a wrongful act
or omission w/c
causes injury to
an alien. In this
case,
the
responsibility is
owed to the State
of w/c the alien is
a national.

79

Constituent
elements:
1. Existence of an
act or omission
w/c violates an
obligation
established by a
rule of IL in force
between
the
State responsible
for the act or
omission and the
injured State
2. The unlawful act
may be attributed
to the State as a
legal person
3. Loss or damage
must
have
resulted from the
unlawful act. But
in
inter-State
relns even acts
affecting
tne
dignity of the
State must be
compensated by
adequate
reparation even if
no pecuniary loss
exist; damage is
not a separate
constituent
element
The failure to fulfil an
intl
obligation
is
necessary but not a
sufficient element in
the case of intl
delicts. To create an
automatic
link
of
responsibility
between the acting
and the claimant
State, an additional
condition
[damage
suffered by claimant
State] is required.
This requirement is
connected with the
2ndary rules of State
responsibility since it
concerns
its
implementation
on
the diplomatic and
judicial plane. It is
always the element of
damage suffered by

one State that entitles


that State to claim
against another State
w/c
caused
the
damage and demand
redress.

The Albanian
government
replied that
foreign
warships and
merchant
vessels had
not right to
pass through
Albanian
territorial
waters
without prior
authorization.

On
August
2nd, 1946, the
UK
replied
that if, in the
future,
fire
was opened
on a British
warship
passing
through the
channel, the
fire would be
returned.

Cases:
Corfu Channel Case
(1949)
On October 22nd,
1946, two British
cruisers
and
two
destroyers, entered
the North Corfu Strait.
The channel they
were following, which
was
in
Albanian
waters, was regarded
as safe: it had been
swept in 1944 and
check-swept in 1945.
One
of
the
destroyers, Sumarez,
when off Saranda,
struck a mine and
was
gravely
damaged. The other
destroyer,
the
Volage, was sent to
her assistance and,
while towing her,
struck another mine
and
was
also
seriously damaged.
45 British officers and
sailors lost their lives,
and 42 others were
wounded.
__
An
incident
had
already occurred in
these waters on May
15th,
1946:
an
Albanian battery had
fired in the direction
of 2 British cruisers.
The UK government
had protested, stating
that
innocent
passage
through
straits is a right
recognized
by
international law.

On
September
21st,
1946,
the Admiralty
in
London
had cabled to
the
British
Commanderin-chief in the
Mediterranea
n
to
the
following
effect:
establishme
nt
of
diplomatic
relations with
Albania
is
again under
consideration
by
His
Majestys
Government
who wish to
know whether
the Albanian
Government

have learnt to
behave
themselves.
Information is
requested
whether any
ships under
your
command
have passed
through the
North Corfu
Strait
since
August and, if
not, whether
you intend to
do
so
shortly.
__
After the explosions
on October 22nd, the
United
Kingdom
announced
its
intention to sweep the
Corfu
Channel
shortly.
The
International Central
Mine
Clearance
Boards
made
a
definite statement to
the effect that further
sweeps would have
to require the consent
of
Albania.
The
sweep effected by the
British Navy took
place on November
12th/13th 1946, absent
Albanian consent.
__
On March 25, 1948,
the parties concluded
a Special Agreement
asking the Court to
give judgment on the
following questions:
1. Is
Albania
responsible
for
the
explosions,
and is there a
duty to pay
compensatio
n?

80

2. Has
the
United
Kingdom
violated
international
law by the
acts of its
Navy
in
Albanian
waters, first
on the day on
which
the
explosions
occurred and

these
documents
show that the
minefield had
been recently
laid.
1. Albania could not
have laid down the
mines herself. That
suggestion was only
put
forward
pro
memoria,
without
evidence in support

No
proof
of
connivance
with
Yugoslavia. A charge
of such exceptional
gravity
against
a
State would require a
degree of certainty
that has not been
reached here, and
origin
of the
ISSUE: Is Albania responsible the
for the
explosions,
and is
mines laid in Albanian
there a duty to pay compensation?
territorial
waters
a matter
for
According to the UK, Albania isremain
responsible
because:
1. the minefield was laidconjecture.
by or with connivance or
knowledge of the Albanian government;
2. Did government
Albania know
2. alternatively, the Albanian
knew
of lying
the inminelaying
that said minefield was
a part of its
activities?
territorial waters
YES, did
the not
proofnotify
may the
3. the Albanian government
be
drawn
existence of these mines
as
requiredfrom
by the
OFwith
Hague Convention 8 ofINFERENCES
1907 in accordance
provided law
that and
the general principlesFACT
of international
they leave no room
humanity
reasonable
4. Albania, despite beingfor
in the
position doubt.
to observe
the approach of the British ships, failed to warn
- Great Britain,
them of the danger
the
5. existence of minefield in being
an international
victim themust
highway without notification violates
right of
be allowed a
innocent passage
more liberal
recourse to
inferences of
COURT:
fact
and
- first,
the
circumstantial
documents
evidence;
produced by
such indirect
the
UK
evidence
government
must
be
ad
the
regarded as
statements
of
especial
made by the
weight
when
Courts
based
on
a
experts and
series
of
based
on
facts, linked
secondly, on
November
12th and 13th,
when
it
undertook the
sweep of the
strait?

together and
leading
logically to a
single
conclusion.
So why did the court
say that Albania knew
of the minelaying
activities?
a.
because
of
Albanias
attitude
before or after the
catastrophe
i.
T
h
e
l
a
yi
n
g
o
f
t
h
e
m
i
n
e
s
t
o
o
k
p
l
a
c
e
i
n
a
p
e
ri
o
d
i
n
w
h
ic
h
it
h
a

d
s
h
o
w
n
it
s
i
n
t
e
n
ti
o
n
t
o
k
e
e
p
a
j
e
a
l
o
u
s
w
a
t
c
h
o
n
it
s
t
e
rr
it
o
ri
a
l
w
a
t
e
r
s
a
n
d
i
n
w

81

h
ic
h
it
w
a
s
r
e
q
u
ir
i
n
g
p
ri
o
r
a
u
t
h
o
ri
z
a
ti
o
n
b
e
f
o
r
e
t
h
e
y
w
e
r
e
e
n
t
e
r
e
d
:
a
ll
o
f
w
h
ic

ii.

h
r
e
n
d
e
r
t
h
e
a
s
s
e
rt
i
o
n
o
f
i
g
n
o
r
a
n
c
e
a
p
ri
o
ri
i
m
p
r
o
b
a
b
l
e
.
A
ft
e
r
k
n
o
w
i
n
g
a
b
o

u
t
t
h
e
m
i
n
e
fi
e
l
d
s
e
xi
s
t
e
n
c
e
(
p
o
s
tO
c
t
o
b
e
r
2
2
nd

i
n
ci
d
e
n
t)
,
it
p
r
o
t
e
s
t
e
d
s
tr
o
n

g
ly
a
g
a
i
n
s
t
t
h
e
m
i
n
e
s
w
e
e
p
i
n
g
o
p
e
r
a
ti
o
n
s
o
f
t
h
e
B
ri
ti
s
h
fl
e
e
t,
b
u
t
n
o
t
a
g
a
i
n
s

82

iii.

t
t
h
e
l
a
yi
n
g
o
f
t
h
e
m
i
n
e
s
S
h
e
d
i
d
n
o
t
u
n
d
e
rt
a
k
e
a
n
y
o
f
t
h
e
m
e
a
s
u
r
e
s
o
f
j
u
d
ic
i

a
l
i
n
v
e
s
ti
g
a
ti
o
n
w
h
ic
h
w
o
u
l
d
s
e
e
m
i
n
c
u
m
b
e
n
t
o
n
h
e
r
i
n
s
u
c
h
a
c
a
s
e
.
S
u
c
h
a
n
a

tt
it
u
d
e
c
o
u
l
d
o
n
ly
b
e
e
x
p
l
a
i
n
e
d
if
t
h
e
A
l
b
a
n
i
a
n
G
o
v
e
r
n
m
e
n
t,
w
h
il
e
k
n
o
w
i
n
g
o
f

t
h
e
m
i
n
e
l
a
yi
n
g
,
d
e
si
r
e
d
t
h
e
ci
r
c
u
m
s
t
a
n
c
e
s
i
n
w
h
ic
h
it
w
a
s
e
ff
e
c
t
e
d
t
o
r
e
m
a
i
n

83

s
e
c
r
e
t.
b. because a survey
of the Albanian coast
shows the possibility
of observing the mine
laying operations
i.
The
channel
is easily
watched:
it
is
dominate
d
by
heights
offering
excellent
observati
on points.
ii.
The
operation
s
cold
have
taken 2
to 2 and
a
half
hours
and if a
normal
lookout
was kept
in
the
surroundi
ng capes,
and if the
lookouts
were
equipped
with
binocular
s,
UNDER
NORMAL
CONDITI
ONS, the
minelaying
operation
s
must
have
been
noticed
by these
coastgua

rds.
(in the objectionable
language of the Court
(naks,
nagmamarunong),
from all the facts and
observations
mentioned xxx, the
Court
draws
the
conclusion that the
laying of the minefield
could not have been
accomplished
without
the
knowledge of the
Albanian
Government)
3. the Albanian
government did not
notify the existence of
these mines as
required by the
Hague Convention 8
of 1907 in
accordance with the
general principles of
international law and
humanity
and so because
Albania must have
known of the
existence of the
minefield, it had the
obligation to make
the necessary acts of
notification. See
discussion below.

Court: YES, Albania


had the duty to notify
xxx
The
obligations
consisted in notifying,
for the benefit of
shipping in general,
the existence of the
minefield
and
in
warning
the
approaching British
warships of imminent
danger to which the
minefield
exposed

them.
This however, is not
based on the Hague
Convention
as
claimed by UK but on
certain general and
well-recognized
principles,
namely
elementary
consideration
of
humanity, even more
exacting in peace
than in war; the
principle if freedom of
maritime
communication; and
every
States
obligation not to allow
knowingly its territory
to be used for acts
contrary to the rights
of other States.
Xxx ok so they should
have notified UK, but
was the possible?
Court: YES, it was
perfectly possible for
the
Albanian
authorities to use the
interval of almost two
hours (from the time
they saw the ships to
the time the ships
would have reached
the minefield site)
that elapsed before
the
explosion
affecting Saumarez to
warn the vessels of
the danger they were
running.
Xxx now that Albania
is responsible, is
there a duty to pay
compensation
and
can the Court fix the
amount?
Court: YES, Albania s
responsible for the
damage and loss of
human life which
resulted from them
and that there is a
duty upon Albania to
pay compensation to
the UK.

The
Albanian
Government has not
disputed
the
competence of the
Court to decide what
kind of satisfaction is
due
under
the
Agreement.
If
the
Court
is
component to decide
what
kind
of
satisfaction is due to
Albania under the
agreement,
it
is
difficult to see why it
should
lack
competence t decide
the
amount
of
compensation which
is due to the united
Kingdom under the
first part.
ISSUE2: Has the
United
Kingdom
violated international
law by the acts of its
Navy in Albanian
waters, first on the
day on which the
explosions occurred
and secondly, on
November 12th and
13th,
when
it
undertook the sweep
of the strait?
(UK says it was
simply exercising the
right
of
innocent
passage)
VII. was the October
22nd
passage
innocent?
Court: Yes.
The
North
Corfu
Channel belongs to
the
class
of
international
highways
through
which
passage
cannot be prohibited
by a coastal state in
time of peace.

84

The October 22nd


passage was not a
political mission as
asserted by Albania;
it was designed to
affirm a right which
had been unjustly
denied.
Albania claimed that
it was justified in
requiring
consent
because
of
exceptional
circumstances: it was
technically in a state
of war with Greece
which was claiming a
part of its territory.
Court:
The
circumstances would
have been justified in
issuing
REGULATIONS
in
respect
of
the
passage of warships
through the strait; but
not in prohibiting the
passage
or
in
subjecting it to the
requirement
of
special authorization.
4. Was Operation
Retail
(November
2/13th
British
minesweeping
operations) valid?
Court: NO, the action
of the British navy
constituted a violation
of
Albanian
sovereignty.
i.

ii.

It
was
against
the
clearly
expresse
d wish of
the
Albanian
governm
ent.
It did not
have the
consent
of
the
internatio

iii.

nal mine
clearance
organizati
ons.
It was not
an
exercise
of
the
right
of
innocent
passage:
object
was
to
secure
the mines
as
quickly
as
possible
a. UK
prese
nted
this
as a
new
and
speci
al
appli
catio
n of
the
theor
y of
interv
entio
n, by
mean
s of
which
the
interv
ening
State
was
actin
g to
facilit
ate
the
task
of the
intern
ation
al
tribun
al, or
as a
meth

od of
selfprote
ction
or
selfhelp
Court:
not
accepted.
Between
independent
States
the
respect
for
territorial
sovereignty is
an essential
foundation for
international
relations. To
ensure
respect
for
international
law, of which
it
is
the
organ,
the
Court
must
declare that
the action of
the
British
Navy
constituted a
violation
of
Albanian
sovereignty.
JUDGE KRYLOV
It was a mistake for
the Court to base its
decision on indirect
evidence.
-

I
do
not
believe that
international
justice could
be
content
with indirect
evidence of
the sort that
has
been
produced in
the present
case, which
affects
the
honour of a
State,
a
subject
of
international
law, and its

position
in
the
community of
nations.
That Albanian local
authorities must have
seen or heard the
minelaying operations
has
certainly
not
been proved.
- Even if the
Albanian
coastal
guards were
in
the
position
to
exercise the
necessary
vigilance over
the strait, that
in no way
excludes the
possibility of
a clandestine
operation.
Further, even
the
Court
experts said
that
under
less
favorable
conditions it
would
be
impossible to
hear
the
operation
from
all
points.
The culpa of Albania
has not been proved.
- One cannot
condemn
a
State on the
basis
of
probabilities/
To establish
international
responsibility,
one
must
have
clear
and
indisputable
facts.
- I cannot find
in
the
organization

85

and
functioning of
the Albanian
coastal
watchhaving
the
regard to the
limited
sources
of
hat
small
country

such a lack of
diligence as
might involve
the
responsibility
of Albania.
And even if
Albania
knew,
the
coastal
guards had
neither
sufficient time
nor
the
necessary
technical
means
for
giving such a
warning.

The Court has no


jurisdiction to assess
the
amount
of
compensation.
- The text in
the
Special
Agreement is
clear
such
that the court
may
give
judgment the
question on
principle.
It
does
not
follow at all
that the Court
has
jurisdiction to
fix
the
amount
of
compensatio
n.
The
passage
British
ships
October 22nd was
within
classification

of
on
not
the
of

innocent passage.
-

The question
of
innocent
passage
of
warships has
not
been
regulated by
convention
and
it
is
impossible to
say that an
international
custom exists
in regard to it.
As such, the
passage
of
foreign
warships thru
territorial
waters is to a
right but a
tolerance.
Accordingly,
the right to
regulate the
passage
of
warships thru
its territorial
waters
appertains to
the
coastal
state
(Albania). For
its failure to
obtain
the
necessary
consent, UK
misused the
right
of
passage and
for
that
reason, the
sovereignty
of Albania in
her territorial
waters was
violated.

British minesweeping
operations
was
nothing
but
the
intervention
of
a
foreign power in the
affairs of another
state. The claim to
exercise
judicial
action in the territory
of another state is

inadmissible because
it
violates
the
sovereignty of the
state in question.
-

Since 1945,
after
the
coming into
force of the
Charter, the
so-called
right of selfhelp
also
known as the
law
of
necessity
which need
to be upheld
by a number
of
German
authors can
no longer be
invoked.
It
must
be
regarded as
obsolete.

British actions in the


CAB involved the
international liability
of Great Britain and
must be described as
a
violation
of
International law.
JUDGE AZEVEDO
Breach of
international law has
foremost place in the
theory of
responsibility.
Approach suggested:
the victim has only to
prove damage and
the
chain
of
causation; and that is
enough to involve
responsibility, unless
the defendant can
prove culpa in a 3rd
party, or in the victim,
or force majeure; only
these can relieve him
from responsibility.
If the participation of

a 3rd country was


evident (Yugoslavia in
the case at bar) the
condemnation of the
respondent could still
not be founded on
that fact.
- The
international
judges
jurisdiction is
based on the
will of the
parties
in
virtue
of
Article 36 of
the
Courts
Statute; this
renders
a
mere allusion
to the acts of
a 3rd State
inadmissible.
A
country
which is not a
party to the
case and has
not
been
summoned
remains
unaffected
not only by
the judgment
itself, but by
an incidental
mention of it
as mandatory
or
as
performing
an unlawful
act.
Use
of
indirect
evidence
was
acceptable.
- It would be
going to far
for
an
international
court to insist
on direct and
visual
evidence and
to refuse to
admit, after
reflection, a
reasonable
amount
of
human

86

presumptions
with a view to
reaching that
state
of
moral, human
certainty with
which,
despite
the
risk
of
occasional
errors,
a
court
of
justice must
be content.

In the CAB, there is


no need to speak of
risk; the presumption
of culpa is sufficient
and is quite in its
place in a case of
recognized
and
admitted negligence.
Therefore,
in
international
law
Albania
is
responsibility.
re: assessment of
compensation
- Court should
not
have
decided
on
the issue. It is
not exactly a
question
of
competence,
but
of
determining
the content of
the petitum:
UK asked for
a
simple
declaration of
responsibility,
reserving
a
subsequent
settlement.
- The adoption
of a special
agreement
presupposes
mutual
renunciations
limiting
the
effect of the
Courts
decision
to
the main fact

of recognition
of
responsibility;
and
regarding
essentially
the purpose
of
international
justice
as
being
to
declare
the
right.
Additional
matters, such
as
the
estimation of
the loss and
the method of
payment,
have
been
left by the
parties
to
other
procedures,
more
favorable to
their
interests, and
to
be
determined in
the future.

DR. ECER
Criminal character of
the
incident
on
October 22nd
-

Great Britain
seems
to
base
her
submission in
regard
to
Albanias
responsibility
primarily on
the allegation
that Albania
laid
the
mines or took
part as an
accomplice in
laying them,
i.e., on an
accusation of
a
definitely
criminal
character.

However, the
International
Court is not a
criminal
court.
The
Special
Agreement
did not ask it
to
decide
whether
Albania has
committed
this crime. It
requires
Court to give
judgment as
to Albanias
responsibility
in
international
law, that is to
say without
describing it
either as a
criminal or as
a noncriminal
responsibility.

No direct evidence
has been produced to
establish the Albanian
cognizance of the
laying of the mines.
On international law,
there
is
a
presumption in favors
of
every
State:
presumptio juris that
a state behaves in
conformity
with
international law.
It was improper for
the court to base its
decisions on proof by
indications,
presumptions
and
even by conjecture.
It would perhaps be
desirable to state in
express terms that
the responsibility of a
state assumes either
dolus or culpa on its
part. An act of a state
injurious to another
state is nevertheless

not an international
delinquency
if
committed
neither
willfully
and
maliciously nor with
culpable negligence.
The
Special
Agreement did not
ask court to assess
the
amount
of
compensation.

ELSI
(1989)

Judgment

Jurisdiction of the
Court
and
Admissibility of the
Application; Rule of
Exhaustion of Local
Remedies (pares. 4863)

An objection to the
admissibility of the
present case was
entered by Italy in its
Counter-Memorial, on
the ground of an
alleged failure of the
two United States
corporations,
Raytheon
and
Machlett, on whose
behalf the United
States
claim
is
brought, to exhaust
the local remedies
available to them in
Italy. The Parties
agreed
that
this
objection be heard
and determined in the
framework of the
merits.

The United States


questioned whether
the rule
of
the
exhaustion of local
remedies could apply
at all, as Article XXVI

87

(the
jurisdictional
clause) of the FCN
Treaty is categorical
in its terms, and
unqualified by any
reference to the local
remedies rule. It also
argued that in so far
as its claim is for a
declaratory judgment
of a direct injury to
the United States by
infringement of its
rights under the FCN
Treaty, independent
of the dispute over
the alleged violation
in
respect
of
Raytheon
and
Machlett, the local
remedies
rule
is
inapplicable.
The
Chamber
rejects
these arguments. The
United States also
observed that at no
time until the filing of
the
Respondents
Counter-Memorial in
the
present
proceedings did Italy
suggest
that
Raytheon
and
Machlett should sue
in the Italian courts
on the basis of the
Treaty, and argued
that this amounts to
an estoppel. The
Chamber
however
found that there are
difficulties
in
constructing
an
estoppel from a mere
failure to mention a
matter at a particular
point in somewhat
desultory diplomatic
exchanges.

On
the
question
whether
local
remedies were, or
were not exhausted
by Raytheon and
Machlett,
the
Chamber notes that

the damage claimed


in this case to have
been
caused
to
Raytheon
and
Machlett is said to
have resulted from
the losses incurred
by ELSIs owners as
a
result
of
the
involuntary change in
the
manner
of
disposing of ELSIs
assets: and it is the
requisition order that
is said to have
caused this change,
and
which
is
therefore at the core
of the United States
complaint. It was
therefore right that
local remedies be
pursued by ELSI
itself.

After examining the


action taken by ELSI
in its appeal against
the requisition order
and, later, by the
trustee in bankruptcy,
who
claimed
damages
for
the
requisition,
the
Chamber considers
that the municipal
courts had been fully
seized of the matter
which
is
the
substance
of the
Applicants
claim
before the Chamber.
Italy
however
contended that it was
possible to cite the
provision
of
the
treaties themselves
before the municipal
courts, in conjunction
with Article 2043 of
the Italian Civil Code,
which was never
done.

After examining the


jurisprudence cited by

Italy, the Chamber


concludes that it is
impossible to deduce
what the attitude of
the Italian courts
would have been if
such a claim had
been brought. Since it
was for Italy to show
the existence of a
local remedy, and as
Italy has not been
able to satisfy the
Chamber that there
clearly
remained
some remedy which
Raytheon
and
Machlett,
independently
of
ELSI, and of ELSIs
trustee in bankruptcy,
ought
to
have
pursued
and
exhausted,
the
Chamber rejects the
objection of nonexhaustion of local
remedies.

Alleged Breaches of
the
Treaty
of
Friendship,
Commerce
and
Navigation and its
Supplementary
Agreement
(paras. 64-67)

Paragraph I of the
United States Final
Submissions claims
that:

(1) The Respondent


violated
the
international
legal
obligations which it
undertook by the
Treaty of Friendship,
Commerce
and
Navigation between
the two countries,
and the Supplement
thereto,
and
in

particular,
violated
Articles III, V, VII of
the
Treaty
and
Article I
of
the
Supplement . . .

The acts of the


Respondent
which
are alleged to violate
its treaty obligations
were described by
the
Applicants
counsel
in
terms
which it is convenient
to cite here:

First,
the
Respondent violated
its legal obligations
when it unlawfully
requisitioned
the
ELSI plant on 1 April
1968 which denied
the ELSI stockholders
their direct right to
liquidate the ELSI
assets in an orderly
fashion. Second, the
Respondent violated
its obligations when it
allowed ELSI workers
to occupy the plant.
Third,
the
Respondent violated
its obligations when it
unreasonably
delayed ruling on the
lawfulness of the
requisition for 16
months
until
immediately after the
ELSI
plant,
equipment and workin-process had all
been acquired by
ELTEL. Fourth and
finally,
the
Respondent violated
its obligations when it
interfered with the
ELSI
bankruptcy
proceedings, which
allowed
the
Respondent to realize
its
previously
expressed intention

88

of acquiring ELSI for


a price far less than
its fair market value.

The most important of


these acts of the
Respondent
which
the Applicant claims
to have been in
violation of the FCN
Treaty
is
the
requisition of
the
ELSI plant by the
Mayor of Palermo on
1 April 1968, which is
claimed
to
have
frustrated the plan for
what the Applicant
terms an orderly
liquidation of the
company. It is fair to
describe the other
impugned acts of the
Respondent
as
ancillary to this core
claim based on the
requisition and its
effects.

Article
Treaty
101)

III

of FCN
(paras. 68-

The allegation by the


United States of a
violation of Article III
of the FCN Treaty by
Italy relates to the
first sentence of the
second
paragraph,
which provides:

The
nationals,
corporations
and
associations of either
High
Contracting
Party
shall
be
permitted,
in
conformity with the
applicable laws and
regulations within the
territories of the other
High
Contracting

Party, to organize,
control and manage
corporations
and
associations of such
other
High
Contracting Party for
engaging
in
commercial,
manufacturing,
processing, mining,
educational,
philanthropic,
religious
and
scientific activities.

In terms of the
present case, the
effect of this sentence
is that Raytheon and
Machlett are to be
permitted,
in
conformity with the
applicable laws and
regulations within the
territory of Italy, to
organize, control and
manage ELSI. The
claim of the United
States focuses on the
right to control and
manage.
The
Chamber considers
whether there is a
violation of this Article
if, as the United
States alleges, the
requisition had the
effect of depriving
ELSI of both the right
and
practical
possibility of selling
off its plant and
assets for satisfaction
of its liabilities to its
creditors
and
satisfaction of its
shareholders.

A requisition of this
kind must normally
amount
to
a
deprivation, at least in
important part, of the
right to control and
manage.
The
reference in Article III

to conformity with
the applicable laws
and
regulations
cannot mean that, if
an act is in conformity
with the municipal law
and regulations (as,
according to Italy, the
requisition was), that
would
of
itself
exclude
any
possibility that it was
an act in breach of
the
FCN
Treaty.
Compliance
with
municipal law and
compliance with the
provisions of a treaty
are
different
questions.

The treaty right to be


permitted to control
and manage cannot
be interpreted as a
warranty that the
normal exercise of
control
and
management
shall
never be disturbed;
every system of law
must provide, for
example,
for
interferences with the
normal exercise of
rights during public
emergencies and the
like.

The
requisition was found
both by the Prefect
and by the Court of
Appeal of Palermo
not to have been
justified
in
the
applicable local law; if
therefore, as seems
to be the case, it
deprived
Raytheon
and Machlett of what
were at the moment
their most crucial
rights to control and
manage, it might
appear prima facie a

violation of Article III,


paragraph 2.

According
to
the
Respondent,
however, Raytheon
and Machlett were,
because of ELSIs
financial
position,
already naked of
those very rights of
control
and
management
of
which they claim to
have been deprived.
The Chamber has
therefore to consider
what effect, if any, the
financial position of
ELSI may have had
in that respect, first
as a practical matter,
and then also as a
question of Italian
law.

The essence of the


Applicants claim has
been throughout that
Raytheon
and
Machlett,
which
controlled ELSI, were
by the requisition
deprived of the right,
and of the practical
possibility,
of
conducting an orderly
liquidation of ELSIs
assets, the plan for
which liquidation was
however very much
bound up with the
financial
state
of
ELSI.

After noting that the


orderly
liquidation
was an alternative to
the aim of keeping
the place going, and
that it was hoped that
the threat of closure
might bring pressure
to bear on the Italian

89

authorities, and that


the Italian authorities
did not come to the
rescue on acceptable
terms, the Chamber
observes that the
crucial question is
whether
Raytheon,
on the eve of the
requisition, and after
the closure of the
plant
and
the
dismissal,
on
29
March 1968, of the
majority
of
the
employees, was in a
position to carry out
its orderly liquidation
plan, even apart from
its alleged frustration
by the requisition.

The
successful
implementation of a
plan
of
orderly
liquidation
would
have depended upon
a number of factors
not under the control
of
ELSIs
management.
Evidence has been
produced
by
the
Applicant
that
Raytheon
was
prepared to supply
cash flow and other
assistance necessary
to effect the orderly
liquidation, and the
Chamber sees no
reason to question
that Raytheon had
entered or was ready
to enter into such a
commitment;
but
other factors give rise
to some doubt.

After
considering
these other factors
governing
the
matter the
preparedness
of
creditors
to
cooperate in an orderly

liquidation, especially
in case of inequality
among them, the
likelihood of the sale
of the assets realizing
enough to pay all
creditors in full, the
claims
of
the
dismissed
employees,
the
difficulty of obtaining
the best price for
assets sold with a
minimum delay, in
view of the trouble
likely at the plant
when the closure
plans became known,
and the attitude of the
Sicilian
administration the
Chamber concludes
that all these factors
point
toward
a
conclusion that the
feasibility at 31 March
1968 of a plan of
orderly liquidation, an
essential link in the
chain of reasoning
upon
which
the
United States claim
rests, has not been
sufficiently
established.

Finally there was,


beside
the
practicalities,
the
position in Italian
bankruptcy law. If
ELSI was in a state of
legal insolvency at 31
March 1968, and if,
as contended by Italy,
a state of insolvency
entailed an obligation
on the company to
petition for its own
bankruptcy, then the
relevant rights of
control
and
management would
not have existed to
be protected by the
FCN Treaty. While not
essential
to
the

Chambers
conclusion
stated
above,
an
assessment of ELSIs
solvency as a matter
of Italian law is thus
highly material.

After considering the


decision
of
the
Prefect
and
the
judgments of the
courts of Palermo,
the
Chamber
observes
that
whether their findings
are to be regarded as
determinations as a
matter of Italian law
that
ELSI
was
insolvent
on
31
March 1968, or as
findings
that
the
financial position of
ELSI on that date
was so desperate
that it was past
saving, makes no
difference;
they
reinforce
the
conclusion that the
feasibility
of
an
orderly liquidation is
not
sufficiently
established.

If,
therefore,
the
management of ELSI,
at the material time,
had
no
practical
possibility of carrying
out successfully a
scheme of orderly
liquidation under its
own
management,
and
may
indeed
already have forfeited
any right to do so
under Italian law, it
cannot be said that it
was the requisition
that deprived it of this
faculty of control and
management. There
were several causes
acting together that

led to the disaster to


ELSI, of which the
effects
of
the
requisition might no
doubt have been one.
The possibility of
orderly liquidation is
purely a matter of
speculation.
The
Chamber is therefore
unable to see here
anything which can
be said to amount to
a violation by Italy of
Article III, paragraph
2, of the FCN Treaty.

Article V, paragraphs
1 and 3, of FCN
Treaty
(paras. 102112)

The Applicants claim


under paragraphs 1
and 3 of Article V of
the FCN Treaty is
concerned
with
protection
and
security of nationals
and their property.

Paragraph 1 of Article
V provides for the
most
constant
protection
and
security for nationals
of
each
High
Contracting
Party,
both
for
their
persons
and
property; and also
that, in relation to
property, the term
nationals shall be
construed to include
corporations
and
associations; and in
defining the nature of
the protection, the
required standard is
established
by
a
reference to the full
protection
and
security required by

90

international
law.
Paragraph
3
elaborates this notion
of protection and
security further, by
requiring no less than
the
standard
accorded
to
the
nationals,
corporations
and
associations of the
other
High
Contracting
Party,
and no less than that
accorded
to
the
nationals,
corporations
and
associations of any
third country. There
are,
accordingly,
three
different
standards
of
protection,
all
of
which have to be
satisfied.

A breach of these
provisions is seen by
the Applicant to have
been
committed
when the Respondent
allowed
ELSI
workers to occupy the
plant. While noting
the contention of Italy
that
the
relevant
property, the plant
in Palermo, belonged
not to Raytheon and
Machlett but to the
Italian company ELSI,
the
Chamber
examines the matter
on the basis of the
United
States
argument that the
property
to
be
protected was ELSI
itself.

The
reference
in
Article V to the
provision of constant
protection
and
security cannot be
construed as the

giving of a warranty
that property shall
never
in
any
circumstances
be
occupied
or
disturbed. In any
event,
considering
that
it
is
not
established that any
deterioration in the
plant and machinery
was due to the
presence
of
the
workers, and that the
authorities were able
not merely to protect
the plant but even in
some measure to
continue production,
the
protection
provided
by
the
authorities could not
be regarded as falling
below
the
full
protection
and
security required by
international law; or
indeed as less than
the national or thirdState standards. The
mere fact that the
occupation
was
referred to by the
Court of Appeal of
Palermo as unlawful
does not, in the
Chambers
view,
necessarily mean that
the
protection
afforded fell short of
the national standard
to which the FCN
Treaty refers. The
essential question is
whether the local law,
either in its terms or
in its application, has
treated United States
nationals less well
than Italian nationals.
This, in the opinion of
the Chamber, has not
been shown. The
Chamber
must,
therefore, reject the
charge
of
any
violation of Article V,
paragraphs 1 and 3.

The Applicant sees a


further breach of
Article V, paragraphs
1 and 3, of the FCN
Treaty, in the time
taken 16
months before the
Prefect
ruled
on
ELSIs administrative
appeal against the
Mayors
requisition
order.
For
the
reasons
already
explained
in
connection
with
Article
III,
the
Chamber rejects the
contention that, had
there been a speedy
decision
by
the
Prefect,
the
bankruptcy
might
have been avoided.

With regard to the


alternative contention
that Italy was obliged
to protect ELSI from
the deleterious effects
of the requisition,
inter alia by providing
an adequate method
of overturning it, the
Chamber
observes
that under Article V
the full protection
and security must
conform
to
the
minimum
international
standard,
supplemented by the
criteria of national
treatment and mostfavoured-nation
treatment. It must be
doubted whether in
all the circumstances,
the delay in the
Prefects ruling can
be regarded as falling
below the minimum
international
standard. As regards
the contention of
failure to accord a
national standard of

protection,
the
Chamber, though not
entirely convinced by
the
Respondents
contention that such
a lengthy delay as in
ELSIs case was quite
usual, is nevertheless
not satisfied that a
national standard of
more
rapid
determination
of
administrative
appeals has been
shown
to
have
existed. It is therefore
unable to see in this
delay a violation of
paragraphs 1 and 3
of Article V of the
FCN Treaty.

Article V, paragraph
2, of FCN Treaty
(paras. 113-119)

The first sentence of


Article V, paragraph
2, of the FCN Treaty
provides as follows:

2. The property of
nationals,
corporations
and
associations of either
High
Contracting
Party shall not be
taken
within
the
territories of the other
High
Contracting
Party without due
process of law and
without the prompt
payment of just and
effective
compensation.

The Chamber notes a


difference
in
terminology between
the two authentic
texts (English and
Italian); the word

91

taking is wider and


looser
than
expropriazione.

In the contention of
the United States,
first,
both
the
Respondents act of
requisitioning
the
ELSI plant and its
subsequent acts in
acquiring the plant
assets, and work-inprogress, singly and
in
combination
constitute takings of
property without due
process of law and
just
compensation.
Secondly, the United
States claims that, by
interference with the
bankruptcy
proceedings,
the
Respondent
proceeded
through
the ELTEL company
to acquire the ELSI
plant and assets for
less than fair market
value.

The
Chamber
observes that the
charge based on the
combination of the
requisition
and
subsequent acts is
really
that
the
requisition was the
beginning
of
a
process that led to
the acquisition of the
bulk of the assets of
ELSI for far less than
market value. What is
thus alleged by the
Applicant, if not an
overt
expropriation,
might be regarded as
a
disguised
expropriation;
because, at the end
of the process, it is
indeed
tide
to
property itself that is

at stake. The United


States had, however,
during
the
oral
proceedings,
disavowed
any
allegation that the
Italian
authorities
were parties to a
conspiracy to bring
about the change of
ownership.

Assuming,
though
without deciding, that
expropriazione
might
be
wide
enough to include a
disguised
expropriation,
account has further to
be taken of the
Protocol appended to
the
FCN
Treaty,
extending Article V,
paragraph
2,
to
interests held directly
or
indirectly
by
nationals
of
the
Parties.

The Chamber finds


that it is not possible
in this connection to
ignore
ELSIs
financial situation and
the
consequent
decision to close the
plant and put an end
to the companys
activities. It cannot
regard any of the acts
complained of which
occurred subsequent
to the bankruptcy as
breaches of Article V,
paragraph 2, in the
absence
of
any
evidence of collusion,
which is now no
longer even alleged.
Even if it were
possible to see the
requisition as having
been designed to
bring
about
bankruptcy, as a step

towards
disguised
expropriation, then, if
ELSI was already
under an obligation to
file a petition of
bankruptcy, or in such
a financial state that
such a petition could
not be long delayed,
the requisition was an
act of supererogation.
Furthermore
this
requisition,
independently of the
motives
which
allegedly inspired it,
being by its terms for
a limited period, and
liable
to
be
overturned
by
administrative appeal,
could not, in the
Chambers
view,
amount to a taking
contrary to Article V
unless it constituted a
significant deprivation
of
Raytheon and
Machletts interest in
ELSIs plant; as might
have been the case
if,
while
ELSI
remained solvent, the
requisition had been
extended and the
hearing
of
the
administrative appeal
delayed. In fact the
bankruptcy of ELSI
transformed
the
situation less than a
month
after
the
requisition.
The
requisition
could
therefore only be
regarded
as
significant for this
purpose if it caused
or
triggered
the
bankruptcy. This is
precisely
the
proposition which is
irreconcilable with the
findings
of
the
municipal courts, and
with the Chambers
conclusions above.

Article
I
of
Supplementary
Agreement to FCN
Treaty
(paras. 120130)

Article I
of
the
Supplementary
Agreement to the
FCN Treaty, which
confers rights not
qualified by national
or
most-favourednation
standards,
provides as follows:

The
nationals,
corporations
and
associations of either
High
Contracting
Party shall not be
subjected to arbitrary
or
discriminatory
measures within the
territories of the other
High
Contracting
Party
resulting
particularly in: (a)
preventing
their
effective control and
management
of
enterprises
which
they
have
been
permitted to establish
or acquire therein; or,
(b) impairing their
other legally acquired
rights and interests in
such enterprises or in
the
investments
which
they
have
made, whether in the
form of funds (loans,
shares or otherwise),
materials, equipment,
services, processes,
patents, techniques
or otherwise. Each
High
Contracting
Party undertakes not
to
discriminate
against
nationals,
corporations
and
associations of the
other
High
Contracting Party as

92

to their obtaining
under normal terms
the
capital,
manufacturing
processes, skills and
technology
which
may be needed for
economic
development.

The answer to the


Applicants claim that
the requisition was an
arbitrary
or
discriminatory
act
which violated both
the (a) and the (b)
clauses of the Article
is the absence of a
sufficiently palpable
connection between
the effects of the
requisition and the
failure of ELSI to
carry out its planned
orderly
liquidation.
However,
the
Chamber considers
that the effect of the
word
particularly,
introducing
the
clauses (a) and
(b), suggests that
the prohibition of
arbitrary
(and
discriminatory) acts is
not confined to those
resulting
in
the
situations described
in (a) and (b), but
is
in
effect
a
prohibition of such
acts whether or not
they produce such
results.
It
is
necessary, therefore,
to examine whether
the requisition was, or
was not, an arbitrary
or discriminatory act
of itself.

The United States


claims that there was
discrimination
in
favour of IRI, an

entity controlled by
Italy;
there
is,
however, no sufficient
evidence before the
Chamber to support
the suggestion that
there was a plan to
favour IRI at the
expense of ELSI, and
the
claim
of
discriminatory
measures in the
sense
of
the
Supplementary
Agreement
must
therefore be rejected.

In order to show that


the requisition order
was an arbitrary act
in the sense of the
Supplementary
Agreement,
the
Applicant has relied
(inter alia) upon the
status of that order in
Italian
law.
It
contends that the
requisition
was
precisely the sort of
arbitrary action which
was prohibited by
Article I
of
the
Supplementary
Agreement, in that
Under
both
the
Treaty and Italian law,
the requisition was
unreasonable
and
improperly
motivated; it was
found to be illegal
under
Italian
domestic
law
for
precisely this reason.

Though
examining
the decisions of the
Prefect of Palermo
and the Court of
Appeal of Palermo,
the
Chamber
observes that the fact
that an act of a public
authority may have
been
unlawful
in

municipal law does


not necessarily mean
that that act was
unlawful
in
international law. By
itself, and without
more, unlawfulness
cannot be said to
amount
to
arbitrariness.
The
qualification given to
an act by a municipal
authority (e.g., as
unjustified,
or
unreasonable
or
arbitrary) may be a
valuable
indication,
but it does not follow
that
the
act
is
necessarily to be
classed as arbitrary in
international law.

Neither the grounds


given by the Prefect
for
annulling
the
requisition, nor the
analysis by the Court
of Appeal of Palermo
of
the
Prefects
decision as a finding
that
the
Mayors
requisition was an
excess of power, with
the result that the
order was subject to
a
defect
of
lawfulness, signify, in
the Chambers view,
necessarily and in
itself any view by the
Prefect, or by the
Court of Appeal of
Palermo, that the
Mayors
act
was
unreasonable
or
arbitrary. Arbitrariness
is a willful disregard
of due process of law,
an act which shocks,
or at least surprises,
a sense of juridical
propriety. Nothing inthe decision of the
Prefect, or in the
judgment of the Court
of Appeal of Palermo,

conveys
any
indication that the
requisition order of
the Mayor was to be
regarded in that light.
Independently of the
findings of the Prefect
or of the local courts,
the
Chamber
considers
that
it
cannot be said to
have
been
unreasonable
or
merely capricious for
the Mayor to seek to
use his powers in an
attempt
to
do
something about the
situation in Palermo
at the moment of the
requisition.
The
Mayors order was
consciously made in
the context of an
operating system of
law
and
of
appropriate remedies
of appeal, and treated
as such by the
superior
administrative
authority and the
local courts. These
are not at all the
marks
of
an
arbitrary
act.
Accordingly,
there
was no violation of
Article I
of
the
Supplementary
Agreement.

Article VII of FCN


Treaty
(paras. 131135)

Article VII of the FCN


Treaty,
in
four
paragraphs,
is
principally concerned
with ensuring the
right to acquire, own
and
dispose
of
immovable property
or interests therein [in
the Italian text, beni

93

immobili o . . . altri
diritti real)] within the
territories of the other
High
Contracting
Party.

The Chamber notes


the
controversy
between the Parties
turning
on
the
difference in meaning
between the English
interests, and the
Italian, diritti reali),
and the problems
arising out of the
qualification, by the
Treaty, of the group of
rights conferred by
this Article, laying
down
alternative
standards,
and
subject to a proviso.
The
Chamber
considers, however,
that,
for
the
application of this
Article, there remains
precisely the same
difficulty as in trying
to apply Article III,
paragraph 2, of the
FCN Treaty: what
really
deprived
Raytheon
and
Machlett,
as
shareholders, of their
right to dispose of
ELSIs real property,
was
not
the
requisition but the
precarious financial
state
of
ELSI,
ultimately
leading
inescapably
to
bankruptcy.
In
bankruptcy the right
to dispose of the
property
of
a
corporation no longer
belongs even to the
company, but to the
trustee acting for it;
and the Chamber has
already decided that
ELSI was on a course
to bankruptcy even

before the requisition.


The
Chamber
therefore does not
find that Article VII of
the FCN Treaty has
been violated

Having found that the


Respondent has not
violated the FCN
Treaty in the manner
asserted
by
the
Applicant, it follows
that the Chamber
rejects also the claim
for reparation made
in the Submissions of
the Applicant.
B.
Criminal
Responsibility
John
Murphy,
International Crimes
(NOT AVAILABLE)
M. Cheri Bassiouni,
Characteristics Of
International
Criminal
Law
Conventions (NOT
AVAILABLE)
ILC Draft Articles on
State responsibility,
Article 19, in ILC
Yearbook part 2
(NOT AVAILABLE)

Brownlie, Principles
of
Public
International
Law,
supra
B. Causes of Action
Brownlie,
State
Responsibility (NOT
AVAILABLE)
(1) On pp. 97-98.
Take note of the
Canadian Note of
Jan 23, 1979 to the
Soviet Ambassador,
in connection with(2)
pp.
277-283
(Appendix
II):
Canadian Claim for
Damage Caused by
Soviet Cosmos

When does a wrongful act of a state

This arises when an act or omis


state constitutes breach of its obli
time when the obligation was in forc

What conduct on the part of the org


considered as an act of that state
state responsibility?

Reflecting general customary law is


Articles on State Responsibility ado
reads: The conduct of the State s
an act of the state under IL whether
the constituent, legislative, execu
power, whether its functions are of
internal character and whether it
subordinate position in the organiza

Will the conduct of an organ o


constitute a wrongful act if it is perf
Notes:
violation of law?
On International Responsibility
- legal consequence Expressing
of an illegal
a widely
act held
or positio
internationally wrongful
publicists
conduct
or by
used
arbitral
in the
tribunals is
codification form ofDraft
thewhich
International
reads TheLaw
conduct of
Commission
a territorial government entities
empowered to exercise elements
on the concept of imputability authority,
or attributionextended
such organ having
to acted
establish the connection between
be considered
the state
as an
andactthe
of the sta
wrongful act
that particular case the organ exce
according to internal law or con
proposition: IR arises when there
concerning
is an actitsoractivity.
omission in
breach of legal duty imputable or attributable to the State
What is the legal consequence of a
Rome Statute of the
in general terms: where there is no reason to impute or
International
attribute the act to the state, then
Thethere
opinion
is failure
of thetoPCIJ
attach
in the Ch
Criminal Court
IR to that state.
instructive, thusit is a principl
general conception of law, that
Do men check out other men?
In the later draft of the ILC,
engagement
imputedinvolves
changed
an obligation
to
"worthy" members of my gender.
i believe
it's perfectly
attributedmaybe
because when you impute a motive,
normal. it's not like i'd jump into
bediswith
every
cute not
guybe
i true
there
fiction,
it may
Theand
essential
the other
principle
Sate may
contained i
meet. i still like to think say,
of myself
as
a
decent,
bakit ka nagbibintang!! an illegal act is that reparation mu
conservative chick with an old-fashioned catholic wipe out all the consequences of
upbringing.
What is to be established firstestablish
in the state
the responsibility
situation which wou
now tell me... is that so wrong?!
issue is the existence of the legal
have
duty.
existed
Once
if that
established,
act had not been
ED
it will be clear which state has to perform legal duty.
Restitution of this kind, or if this is
VII. Enforcement of
May a state commit and be
of aheld
sumresponsible
corresponding
fortoathe value
Claims
wrongful act?
kind would bear; the award, if
restitution in kin or payment in p
A. Admissibility of
A state may commit an act which
principles
is characterized
which should
byserve
IL to de
Claims
as wrongful. It is a norm of
compensation
general IL due
thatforevery
an act contra
internationally wrongful act of a state entails the IP of that
state.

94

C.
Judicial
Settlement
of
Disputes
Brownlie, Principles
of
Public
International
Law,
supra
Sands, Manual on
International Courts
and tribunals (NOT
AVAILABLE)
INSTEAD: THINGS
U NEED TO KNOW
ABOUT THE ICJ:
Only States may be
parties
to cases before the
Court

It is the function of
the ICJ to decide in
accordance
with
international
law
disputes of a legal
nature
that
are
submitted to it by
States. In doing so it
is helping to achieve
one of the primary
aims of the United
Nations,
which,
according
to
the
Charter, is to bring
about the settlement
of
disputes
by
peaceful means and
in conformity with the
principles of justice
and international law.

An international legal
dispute is, as the
PCIJ put it, "A
disagreement on a
question of law or
fact, a conflict, a
clash of legal views
or of interests." Such
a dispute between

opposing parties may


eventually lead to
contentious
proceedings before
an
international
tribunal.
It
is
conceivable that such
proceedings could be
between a State on
the one hand and an
international
organization,
a
collectivity
or
an
individual
on
the
other. Within their
respective fields of
jurisdiction,
institutions such as
the Court of Justice of
the
European
Communities
in
Luxembourg or the
European Court of
Human Rights in
Strasbourg would be
entitled to hear such
disputes. This is not
the case, however,
with the ICJ, to which
no case can be
submitted unless both
applicant
and
respondent
are
States.
Despite
various
proposals
and
even
the
existence of a treaty
providing
for
the
possibility
of
proceedings before
the Court between an
international agency
and a State, neither
the United Nations
nor
any
of
its
specialized agencies
can be a party in
contentious
proceedings before
the ICJ. As for private
interests, these can
only form the subject
of proceedings in the
International Court of
Justice if a State,
relying
on
international
law,
takes up the case of
one of its nationals

and invokes against


another State the
wrongs which its
national claims to
have suffered at the
latter's hands, the
dispute
thus
becoming
one
between States (e.g.,
Ambatielos,
AngloIranian
Oil
Co.,
Nottebohm,
Interhandel,
Barcelona Traction,
Light
and
Power
Company,
Limited,
Elettronica
Sicula
S.p.A. (ELSI)). Like
any other court, the
ICJ can only operate
within
the
constitutional
limits
that have been laid
down for it. Hardly a
day passes without
the Registry receiving
written
or
oral
applications
from
private
persons.
However
heartrending, however well
founded
such
applications may be,
the ICJ is unable to
entertain them and a
standard
reply is
always sent: "Under
Article 34 of the
Statute, only States
may be parties in
cases before the
Court."

Today, the Court is


open to practically
every State in the
world:

States
Members of
the
United
Nations,
which,
by
signing
the
Charter,
accepted its

obligations
and thus at
the
same
time became
parties to the
Statute of the
ICJ,
which
forms
an
integral part
of
the
Charter;
those States
(Nauru and
Switzerland)
which have
become
parties to the
Statute of the
ICJ without
signing
the
Charter
or
becoming
members of
the
United
Nations;
these States
have had to
satisfy certain
conditions
laid down by
the General
Assembly
upon
the
recommendat
ion of the
Security
Council:
acceptance
of
the
provisions of
the Statute,
an
undertaking
to
comply
with
the
decisions of
the ICJ and
an
undertaking
to make an
annual
contribution
to
the
expenses of
the Court;
any
other
State which,
whilst neither

95

a member of
the
United
Nations nor a
party to the
Statute of the
ICJ,
has
deposited
with
the
Registry
of
the ICJ a
declaration
that
meets
the
requirements
laid down by
the Security
Council
whereby
it
accepts the
jurisdiction of
the Court and
undertakes to
comply
in
good
faith
with
the
Court's
decisions in
respect of all
or a particular
class
or
classes
of
disputes.
Many States
have
found
themselves in
this situation
before
becoming
members of
the
United
Nations;
having
concluded
treaties
providing for
the
jurisdiction of
the
Court,
they
deposited
with
the
Registry the
necessary
declaration to
be able to
appear
before
the
Court. Where
they
have

been parties
to a case,
they
have
been
required
to
contribute to
the
costs
thereof.
The jurisdiction of the
Court so far as
concerns the parties
entitled to appear
before
it

jurisdiction
ratione
personae covers
those States listed
above.
In
other
words, in order that a
dispute may validly
be submitted to the
Court it is necessary
that
the
dispute
should be between
two or more such
States.
A case can only be
submitted to the
Court
with the consent of
the
States
concerned
Jurisdiction
ratione
personae
is
not,
however, in itself
enough.
A
fundamental principle
governing
the
settlement
of
international disputes
is that the jurisdiction
of an international
tribunal depends in
the last resort on the
consent of the States
concerned.
Accordingly,
no
sovereign State can
be made a party in
proceedings before
the Court unless it
has in some manner
or other consented
thereto. It must have
agreed
that
the
dispute or the class of
disputes in question

should be dealt with


by the Court. It is this
agreement
that
determines
the
jurisdiction of the
Court so far as the
particular dispute is
concerned the
Court's
jurisdiction
ratione materiae. It is
true that Article 36 of
the Charter provides
that
the
Security
Council, which may at
any stage of a
dispute recommend
appropriate
procedures
or
methods
of
adjustment,
is
to
"take
into
consideration
that
legal disputes should
as a general rule be
referred
by
the
parties
to
the
International Court of
Justice". In the Corfu
Channel
case,
however, the ICJ did
not
consider
a
recommendation by
the Security Council
to this effect sufficient
to confer jurisdiction
on
the
Court
independently of the
wishes of the parties
to the dispute.
Special agreements
The way in which
States
manifest
consent
to
their
disputes of a legal
nature being decided
by the ICJ is defined
in Article 36 of the
Statute. Paragraph 1
thereof
provides:
"The jurisdiction of
the Court comprises
all cases which the
parties refer to it and
all matters specially
provided for in the
Charter of the United
Nations or in treaties
and conventions in

force."
The first possibility
envisaged here is
where the parties
bilaterally agree to
submit an already
existing dispute to the
ICJ and thus to
recognize
its
jurisdiction over that
particular case. Such
a special agreement
conferring jurisdiction
on the Court is often
referred to as a
compromis (its name
in French). Once
such
a
special
agreement has been
lodged with the Court,
the
latter
can
entertain the case.
Eleven disputes were
referred to the PCIJ
and 13 cases have
been brought before
the ICJ in this way.
It can also happen
that a dispute is
brought before the
Court while at the
time of the institution
of the proceedings
only one of the
disputing States has
validly recognized its
jurisdiction over the
case in question and
the other has not, and
that this latter State
recognizes
the
Court's
jurisdiction
subsequently; this is
a fairly rare situation
and is known as
forum
prorogatum
(*Mavrommatis
Jerusalem
Concessions, *Rights
of Minorities in Upper
Silesia,
Corfu
Channel). It has also
happened ten times
that a State has
instituted proceedings
in the ICJ whilst
recognizing that the
opposing party has

96

not recognized the


Court's
jurisdiction
and inviting it to do
so: hitherto, this has
always met with a
negative response.
Treaties
and
conventions
The
second
possibility envisaged
in
Article
36,
paragraph 1, of the
Statute
is
where
treaties
or
conventions in force
confer jurisdiction on
the Court. It has
become a general
international practice
to
include
in
international
agreements both
bilateral
and
multilateral

provisions, known as
jurisdictional clauses,
providing
that
disputes of a given
class shall or may be
submitted to one or
more methods for the
pacific settlement of
disputes. Numerous
clauses of this kind
have provided and
still
provide
for
recourse
to
conciliation,
mediation
or
arbitration;
others
provide for recourse
to the Court, either
immediately or after
the failure of other
means
of
pacific
settlement.
Accordingly,
the
States signatory to
such
agreements
may, if a dispute of
the kind envisaged in
the
jurisdictional
clause of the treaty
arises between them,
either
institute
proceedings against
the other party or
parties by filing a

unilateral application,
or conclude a special
agreement with such
party
or
parties
providing
for
the
issue to be referred to
the ICJ. The wording
of such jurisdictional
clauses varies from
one treaty to another.
Model
jurisdictional
clauses have been
prepared by, inter
alia, the Institute of
International
Law
(1956). Jurisdictional
clauses are to be
found in treaties or
conventions

having
as
their
object
the
pacific
settlement of
disputes
between two
or
more
States
and
providing in
particular for
the
submission to
judicial
decision
of
specified
classes
of
conflicts
between
States
subject
sometimes to
certain
exceptions;
having
an
object other
than
the
pacific
settlement of
disputes, in
which
case
the
jurisdictional
clause of the
treaty
or
convention in
question will
refer solely to
disputes

concerning
the
interpretation
or application
of the treaty
or convention
or only some
of
its
provisions
(e.g.,
disputes
where
the
issue relates
to
a
peremptory
rule
of
international
law jus
cogens).
Such clauses
may
be
included
in
the body of
the text or in
a
protocol
annexed
to
the
treaty.
They
may
likewise
be
compulsory
or
optional
and may be
open
to
reservations
or not.
Nowadays
such
jurisdictional clauses
confer jurisdiction on
the ICJ. Those that
were drawn up before
the creation of the
United
Nations
conferred it on the
PCIJ. In order to
prevent these from
losing
their
effectiveness,
the
present
Statute
provides that the ICJ
is to be substituted
for
the
PCIJ.
Provided that the
agreement to which
they relate is still in
force and that the
States concerned are
parties to the Statute

of the ICJ, any


dispute that arises
can be submitted to
the ICJ in the same
way as it could have
been to the PCIJ. The
few hundred treaties
or conventions that
confer jurisdiction on
the Court in this way
will normally have
been registered with
the Secretariat of the
League or the United
Nations
and
will
appear
in
the
collections of treaties
published by those
two Organizations. In
addition, the PCIJ
and the ICJ have
published lists of and
extracts from such
treaties
and
conventions. It is not
always
easy
to
determine which of
them are still in force.
They
probably
number some 400 or
so,
some
being
bilateral,
involving
about 60 States, and
others
multilateral,
involving a greater
number of States.
Declarations
Accepting
the
Compulsory
Jurisdiction of the
Court
A third means of
consent to the Court's
jurisdiction
is
described
in
paragraphs 2 and 3
of Article 36 of the
Statute:
"2. The States parties
to the present Statute
may at any time
declare that they
recognize
as
compulsory ipso facto
and without special
agreement, in relation
to any other State
accepting the same

97

obligation,
the
jurisdiction of the
Court in all legal
disputes concerning:
(a) the interpretation
of a treaty; (b) any
question
of
international law; (c)
the existence of any
fact
which,
if
established,
would
constitute a breach of
an
international
obligation; (d) the
nature or extent of
the reparation to be
made for the breach
of an international
obligation.
3. The declarations
referred to above
may
be
made
unconditionally or on
condition
of
reciprocity on the part
of several or certain
States, or for a
certain time."
This
so-called
"optional
clause"
system has led to the
creation of a group of
States who stand as
it were in the same
position towards the
Court
as
the
inhabitants
of
a
country
stand
towards the courts of
that country. Each
State belonging to
this group has in
principle the right to
bring any one or
more other States
belonging
to
the
group before the
Court by filing an
application instituting
proceedings with the
Court,
and,
conversely, it has
undertaken to appear
before
the
Court
should proceedings
be instituted against it
by one or more such
other States. This is

why
such
declarations
are
known
as
"declarations
of
acceptance of the
compulsory
jurisdiction of the
Court".
These declarations,
which take the form
of a unilateral act of
the State concerned,
are deposited with
the
SecretaryGeneral of the United
Nations
and
are
generally signed by
the foreign minister of
the State concerned
or
by
its
representative to the
United Nations. They
are published in the
United Nations Treaty
Series and in the
I.C.J.
Yearbook.
Despite
solemn
appeals
by
the
General Assembly of
the United Nations,
by the SecretaryGeneral of the United
Nations
(in
the
introduction to his
annual Report on the
Work
of
the
Organization, in 1970
and 1974) and by the
Institute
of
International
Law
(1959),
they
are
fewer in number than
had been hoped. In
July 1996 there were
only 59, from the
following
regional
groups: Africa 17 (11
of them since 1966);
Latin America 9; Asia
5; Europe and other
States 28. It must be
added that 12 other
States that had at
one time recognized
the
compulsory
jurisdiction of the ICJ
have withdrawn their
acceptance of such

jurisdiction, 7 of them
after they had been
made respondents in
proceedings before
the Court. As with
treaties
or
conventions,
the
Statute provides that
declarations that refer
to the PCIJ shall be
regarded as applying
to the ICJ. Seven of
these were still in
force in 1996, but 11
countries that had at
one time recognized
the
compulsory
jurisdiction of the
PCIJ never did so in
respect of the ICJ.
The
table
below
shows the relative
increase
and
decrease
in
declarations over the
years.
Matters are further
complicated
by
reservations to the
acceptances
of
compulsory
jurisdiction
which
serve to limit their
scope.
Such
reservations are to be
found in most such
declarations (41 out
of the 59 in force in
July 1995). They
usually recapitulate
some of the wording
of paragraphs 2 and
3 of Article 36,
including especially
points (a), (b), (c) and
(d) (15 declarations).
The declarations are
made for a specific
period, generally for
five years with tacit
renewal as a rule

and
usually
provide
for
the
declarations to be
terminated by simple
notice, such notice to
take effect after a
specified
time
or

immediately.
The most frequently
employed
reservations relate to
disputes

for
which
another
means
of
peaceful
settlement is
provided;
arising before
a certain date
or concerning
situations or
facts anterior
to that date,
generally the
date
on
which
the
State making
the
declaration
first accepted
the
Court's
compulsory
jurisdiction;
relating
to
matters
falling within
the domestic
jurisdiction of
the
declaratory
State,
as
determined
by
international
law or by the
State making
the
declaration
itself;
arising during
or
out
of
hostilities;
with certain
States:
as
between
members of
the
Commonweal
th or with
States
with
which
the
State making

98

the
declaration
does
not
have
diplomatic
relations;
for
the
specific
purpose
of
which
the
other
party
seems
to
have
made
its
declaration of
acceptance
of
compulsory
jurisdiction;
concerning
certain
multilateral
treaties;
concerning
certain
aspects
of
the law of the
sea.

The
two
most
important of these
reservations,
that
relating
to
other
methods of pacific
settlement, which is
found
in
33
declarations, and that
relating to matters of
domestic jurisdiction,
which is found in 23
declarations,
correspond to Article
95 and Article 2 (7) of
the United Nations
Charter respectively.
These provide that
nothing
in
the
Charter:
"shall
prevent
Members
of
the
United Nations from
entrusting
the
solution
of
their
differences to other
tribunals by virtue of
agreements already
in existence or which
may be concluded in

the future";
"shall authorize the
United Nations to
intervene in matters
which are essentially
within the domestic
jurisdiction of any
State".
With regard to the
latter,
it
is
indisputable
that
every sovereign State
has,
under
international
law,
what is known as its
reserved domain, and
it
would
be
inconceivable for the
ICJ to decide issues
relating
thereto.
Nevertheless, as the
PCIJ made clear in
one
of
its
first
decisions,
"The
question whether a
certain matter is or is
not solely within the
jurisdiction of a State
is
an
essentially
relative question; it
depends upon the
development
of
international
relations."
This is no doubt one
of the reasons why
certain States have
excluded from their
recognition of the
compulsory
jurisdiction of the ICJ
questions
falling
essentially within their
field
of
domestic
jurisdiction
as
"determined" by the
State concerned or
which such State
"considers"
essentially within its
domestic jurisdiction.
Such a reservation
operates
automatically: it is
sufficient
for
a
government
relying
upon
such
a

reservation to declare
that a question in
relation
to
which
proceedings
have
been brought against
it in the ICJ falls
within its domestic
jurisdiction for the
Court to be deprived
of jurisdiction over the
case. Ten countries
originally employed
such a formula in
their
declarations
accepting
the
compulsory
jurisdiction of the
Court.
The
reservation
was
invoked in the Certain
Norwegian Loans and
Interhandel
cases.
The ICJ upheld the
objection based on
this reservation in the
former case and did
not deal with it in the
latter case since it
upheld an objection
based
on
other
grounds.
Some
Members of the Court
expressed
the
opinion that such a
reservation
was
contrary
to
the
Statute,
so
that,
according to certain
judges,
the
reservation as such
was null and void,
whereas, according
to others, the whole
declaration accepting
compulsory
jurisdiction was null
and
void
(1957,
1959). Following this,
the
Institute
of
International
Law
(1959) and various
statesmen and jurists
called upon those
governments that had
included
such
a
reservation in their
declaration
to
withdraw it. Certain
States did so. In

1996,
five
declarations included
a clause of this kind.
The importance of
such reservations is
increased
by the
condition
of
reciprocity,
which
expressly
or
by
implication attaches
to all declarations of
acceptance of the
Court's
compulsory
jurisdiction.
This
means that where a
dispute
arises
between two or more
States
that
have
made a declaration,
the
reservations
made by any of them
can be relied upon
against it by all the
others.
In
other
words, the Court's
jurisdiction over the
case is restricted to
those
classes
of
dispute that have not
been excluded by any
of them. If, for
instance, there are
two States, one of
which has accepted
the
compulsory
jurisdiction of the
Court only in respect
of disputes arising
after the date of its
acceptance of such
compulsory
jurisdiction, such date
being 1 February
1924, and the other
State has excluded
disputes relating to
situations or facts
prior to 21 August
1928,
the
ICJ,
irrespective of which
State
was
the
applicant, would have
jurisdiction only to
hear cases arising
after this latter date.
Consequently,
bearing in mind that
the number of States

99

that have accepted


the
compulsory
jurisdiction of the ICJ
is already limited,
(see table) it will be
seen
that
this
jurisdiction is general
in respect of only a
few of this already
restricted
number,
being
limited
to
various extents in
respect of all the
others.
D.
Individual
Enforcement
K. Zemanek, The
Legal Foundations
on the International
System
(NOT
AVAILABLE)
E.
Collective
Enforcement:
International Peace
and Security
VIII. Settlement of
International
Disputes
Murty, Settlement of
Disputes
Dispute:
a
disagreement on a
point of law or fact, a
conflict of legal views
or interests between
the parties, may be
said to have arisen
when
a
party
presents to another a
specific claim based
upon
an
alleged
breach of law & the
latter rejects it
Parties:
a. between
2
states
b. between
states
and
intl
institutions
c. between intl
institutions
d. between

states
and
private
persons
Kinds:
a. legal WON
legal
depends on
the subjective
evaluation of
the
parties
characterizin
g it
political not
suitable
for
settlement by
adjudication

other
view
is
that it is
suitable
given the
willingnes
s of the
parties to
abide by
judicial
verdict
b. Justiciable
and
nonjusticiable
Procedures
of
Settlement
under
contemporary IL
A.
Diplomatic
Procedure

to
secure a solution by
means of agreement
between parties
1. Negotiation
descr
ibed as the
legal
&
orderly
administrativ
e process by
which
governments
in
the
exercise
of
their
unquestionab
le
powers,

conduct their
relations
w/one
another and
discuss,
adjust
and
settle
their
differences
proce
eds from Art
33 (1) of UN
Charter
An
obligation to
enter
into
nego
does
not imply an
obligation to
reach
an
agreement
May
be carried on
by ordinary
diplomatic
officials
or
officials
specially
appointed of
the
highest
rank

3. Mediation
a
more active
involvement
wherein the
3rd party does
not
merely
provide
the
opportunity
for the parties
to negotiate
but
also
actively
participates
in
their
discussions
to reconcile
their
conflicting
terms.
The
suggestions
of
the
mediator are
merely
suggested
and may be
rejected
w/out offense
by the parties
involved.

2. Good Offices
- method by
which a 3rd
party
attempts to
bring
the
disputing
states
together to let
them discuss
the
issues
and arrive at
an
agreement
employed
when
the
parties are no
longer
on
speaking
terms, have
severed
diplomatic
relations or
have actually
commenced
hostilities

4. Inquiry
proce
dure
for
states which
were
unwilling to
submit their
dispute
to
arbitration
the
function
of
commission
of inquiry is
for
elucidation of
facts by an
impartial
&
conscientious
investigation
findin
gs are not
conclusive
upon
disputing
states
but
they
may
exert a strong

100

moral
influence in
the
settlement of
conflict.
5. Conciliation
comb
ines
the
advantages
of inquiry and
mediation
and
their
limitations
calls
for
active
participation
of 3rd party for
the
settlement of
dispute
but
recommendat
ions are not
binding
Unlik
e
in
mediation,
services
of
conciliator
are
not
offered by 3rd
party but are
solicited
by
the parties in
dispute
*
No
uniformly
accepted
definition
for other diplomatic
procedure but they
have one thing in
common: 3rd party
comes
into
the
picture
B.
Adjucative
Procedure settled
by a 3rd party the
determination of the
questions of law and
fact involved in the
question
1. Arbitration
soluti
on
of
a
dispute by a

3rd
party,
usually
a
tribunal
created
by
the
parties
under
a
charter
known as the
compromis,
which
provides for
the
composition
of the body,
its rules of
proceedings,
sometimes
the law to be
applied and
issues of fact
and law to be
ascertained.
Proc
eedings are
essentially
judicial and
ward
is
binding
on
parties
by
previous
agreement.
2. Judicial Settlement
(JS)
ICJ
now
entrusted
with
settlement of
intl dispute
Juris
diction of ICJ
is dependent
on
the
agreement of
the parties to
submit to and
be bound by
its decisions
Arbitration & JS are
similar in the nature
of
proceedings,
binding character of
decisions, and that
the
disputes
submitted are legal
rather than political.

They differ on
the following:
i.
judicial
tribunal is
peexisting
and
a
permane
nt body
while
arbtral
tribunal is
an
ad
hoc
created
and filled
by
the
parties
themselv
es
ii.
jurisdictio
n in JS is
usually
compulso
ry;
submissi
on
to
arbitratio
n
is
voluntary
iii.
Law
applied in
JS
is
independ
ent of the
will of the
parties; in
arbitratio
n, it may
be limited
by parties
C. Procedures w/in
the framework of intl
institutions

are
essentially diplomatic
or adjudicative but
which have some
special
characteristics of their
own.
1. League of Nations
ended in 1931
Provided for
(a) arbitration and
judicial
settlement
and (b) diplomatic
procedure
w/c

comprised
the
traditional
secret
diplomacy,
inquiry,
mediation, diplomacy
by conference and
parliamentary
diplomacy
2.
UN:
Security
Council (SC)
maintenance
of
peace
and
securityprimary
objective under the
Charter
Methods: diplomatic
processes
and
adjudication
It limits itself to
disputes which are
likely to endanger
maintenance of intl
peace and security
and
leaves
less
serious disputes to
the parties to settle
among themselves by
means
of
their
choice. Upon parties
request,
Security
Council can make
recommendations.
SC has power to
investigate
any
dispute, call upon
parties
to
settle
disputes by peaceful
means,
can
recommend
appropriate
procedure
of
settlement
and
adjustments,
can
facilitate debates and
discussions
behind
the scenes to settle
disputes.
3. General Assembly
It
may
discuss
any
questions or matter
w/in scope of present
charter. It can discuss
and
make
recommendations on

101

disputes or situations
w/c threaten peace
less immediately than
those w/c SC is
authorized to deal
with.
It has right to
deal with situations of
breaches of peace
and aggression if SC
fails to act due to veto
of any permanent
member.
4. Other Organs
Economic
and Social Council
can
exercise
its
function of discussion
Secretariat
through Sec Gen has
more importance. As
chief administrative
officer, he is assigned
a significant function
in settlement of intl
dispute. He can bring
to attention of SC any
matter which in his
opinion may threaten
the maintenance of
peace and security.
He has been vested
with diplomatic as
well as operational
responsibilities.
5.
Religious
Organization
Org of African
Unity, Arab League,
the Org of American
States, North Atlantic
Treaty Org (NATO)
These
orgs
may be resorted to by
the parties on their
own volition or taken
by the body itself at
its own instance if
allowed
by
agreement
of
members.
UN Charter, 33-38
Article 33
1. The

parties

to
any
dispute, the
continuance
of which is
likely
to
endanger the
maintenance
of
international
peace
and
security,
shall, first of
all, seek a
solution
by
negotiation,
enquiry,
mediation,
conciliation,
arbitration,
judicial
settlement,
resort
to
regional
agencies or
arrangement
s, or other
peaceful
means
of
their
own
choice.
2. The Security
Council shall,
when
it
deems
necessary,
call upon the
parties
to
settle
their
dispute
by
such means.
Article 34
The Security Council
may investigate any
dispute,
or
any
situation which might
lead to international
friction or give rise to
a dispute, in order to
determine
whether
the continuance of
the
dispute
or
situation is likely to
endanger
the
maintenance
of
international
peace
and security.

Article 35
1. Any Member
of the United
Nations may
bring
any
dispute,
or
any situation
of the nature
referred to in
Article 34, to
the attention
of
the
Security
Council or of
the General
Assembly.

2. A state which
is
not
a
Member
of
the
United
Nations may
bring to the
attention of
the Security
Council or of
the General
Assembly
any dispute
to which it is
a party if it
accepts
in
advance, for
the purposes
of
the
dispute, the
obligations of
pacific
settlement
provided in
the present
Charter.
3. The
proceedings
of
the
General
Assembly in
respect
of
matters
brought to its
attention
under
this
Article will be
subject to the
provisions of
Articles
11

and 12.
Article 36
1. The Security
Council may,
at any stage
of a dispute
of the nature
referred to in
Article 33 or
of a situation
of like nature,
recommend
appropriate
procedures
or methods
of
adjustment.

2. The Security
Council
should take
into
consideration
any
procedures
for
the
settlement of
the dispute
which have
already been
adopted by
the parties.

3. In
making
recommenda
tions under
this
Article
the Security
Council
should also
take
into
consideration
that
legal
disputes
should as a
general rule
be referred
by the parties
to
the
International
Court
of
Justice
in
accordance

102

with
the
provisions of
the Statute of
the Court.
Article 37
1. Should
the
parties to a
dispute of the
nature
referred to in
Article 33 fail
to settle it by
the
means
indicated in
that Article,
they
shall
refer it to the
Security
Council.
2. If
the
Security
Council
deems that
the
continuance
of the dispute
is in fact
likely
to
endanger the
maintenance
of
international
peace
and
security,
it
shall decide
whether
to
take
action
under Article
36
or
to
recommend
such terms of
settlement as
it
may
consider
appropriate.
Article 38
Without prejudice to
the provisions of
Articles 33 to 37, the
Security Council may,
if all the parties to
any
dispute
so
request,
make
recommendations to

the parties with a


view to a pacific
settlement of the
dispute.
Manila Declaration
on the Peaceful
Settlement
of
International
Disputes (May 1982)
(NOT AVAILABLE)
IX.
International
Peace and Security:
Fundamental
Principles
in
Relations
Among
States
A. In General
UN Charter, 1 and 2;
Chaps. 7 and 9
UN Declaration on
Principles
of
International
Law
Concerning Friendly
Relations
and
Cooperation Among
States,
in
Magallona,
Documents
in
Contemporary
International
Law
(NOT AVAILABLE)
Definition
of
Aggression,
in
Magallona
Having
considered
the report of the
Special
Committee
on the Question of
Defining Aggression,
established pursuant
to
its
resolution
2330(XXII)
of
18
December
1967,
covering the work of
its seventh session
held from 11 March to
12
April
1974,
including the draft
Definition
of
Aggression adopted

by
the
Special
Committee
by
consensus
and
recommended
for
adoption
by
the
General
Assembly,
[FN1]
Deeply,
convinced
that the adoption of
the
Definition
of
Aggression
would
contribute
to
the
strengthening
of
international
peace
and security,
1.
Approves
the
Definition
of
Aggression, the text
of which is annexed
to
the
present
resolution;
2.
Expresses
its
appreciation to the
Special
Committee
on the Question of
Defining Aggression
for its work which
resulted
in
the
elaboration of the
Definition
of
Aggression;
3. Calls upon all
States to refrain from
all acts of aggression
and other uses of
force contrary to the
Charter of the United
Nations
and
the
Declaration
on
Principles
of
International
Law
concerning Friendly
Relations
and
Cooperation among
States in accordance
with the Charter of
the United Nations;
[FN2]
4. Calls the attention
of
the
Security
Council
to
the
Definition
of
Aggression, as set
out
below,
and

recommends that it
should,
as
appropriate,
take
account
of
that
Definition
as
guidance
in
determination,
in
accordance with the
Charter, the existence
of
an
act
of
aggression.
2319th
plenary
meeting
14 December 1974
Annex
Definition
Aggression
The
Assembly,

of
General

Basing itself on the


fact that one of the
fundamental
purposes
of
the
United Nations is to
maintain international
peace and security
and to take effective
collective measures
for the prevention and
removal of threats to
the peace, and for the
suppression of acts of
aggression or other
breaches
of
the
peace,
Recalling that the
Security Council, in
accordance
with
Article 39 of the
Charter of the United
Nations,
shall
determine
the
existence
of
any
threat to the peace,
breach of the peace
or act of aggression
and
shall
make
recommendations, or
decide
what
measures shall be
taken in accordance
with Articles 41 and
42, to maintain or

103

restore international
peace and security,
Recalling also the
duty of States under
the Charter to settle
their
international
disputes by peaceful
means in order not to
endanger
international peace,
security and justice,
Bearing in mind that
nothing
in
this
Definition shall be
interpreted as in any
way affecting the
scope
of
the
provisions
of
the
Charter with respect
to the functions and
powers of the organs
of the United Nations,
Considering also that,
since aggression is
the most serious and
dangerous form of
the illegal use of
force, being fraught,
in
the
conditions
created
by
the
existence of all types
of weapons of mass
destruction, with the
possible threat of a
world conflict and all
its
catastrophic
consequences,
aggression should be
defined at the present
stage,
Reaffirming the duty
of States not to use
armed
force
to
deprive peoples of
their right to selfdetermination,
freedom
and
independence, or to
disrupt
territorial
Integrity,
Reaffirming also that
the territory of a State
shall not be violated
by being the object,

even temporarily, of
military occupation or
of other measures of
force
taken
by
another
State
in
contravention of the
Charter, and that it
shall not be the object
of
acquisition
by
another
State
resulting from such
measures
or
the
threat thereof,
Reaffirming also the
provisions
of
the
Declaration
on
Principles
of
International
Law
concerning Friendly
Relations
and
Cooperation among
States in accordance
with the Charter of
the United Nations,
Convinced that the
adoption
of
a
definition
of
aggression ought to
have the effect of
deterring a potential
aggressor,
would
simplify
the
determination of acts
of aggression and the
implementation
of
measures
to
suppress them and
would also facilitate
the protection of the
rights
and
lawful
interests of, and the
rendering
of
assistance to, the
victim,
Believing
that,
although the question
whether an act of
aggression has been
committed must be
considered in the light
of
all
the
circumstances
of
each particular case,
it is nevertheless
desirable to formulate
basic principles as
guidance for such

determination,
Adopts the following
Definition
of
Aggression:[FN3]
Article I
Aggression is the use
of armed force by a
State against the
sovereignty, territorial
integrity or political
independence
of
another State, or in
any other manner
inconsistent with the
Charter of the United
Nations, as set out in
this Definition.
Explanatory note: In
this Definition the
term "State":
(a) Is used without
prejudice to questions
of recognition or to
whether a State is a
member of the United
Nations;
(b)
Includes
the
concept of a "group of
States"
where
appropriate.
Article 2
The First use of
armed force by a
State in contravention
of the Charter shall
constitute prima facie
evidence of an act of
aggression although
the Security Council
may, in conformity
with
the
Charter,
conclude
that
a
determination that an
act of aggression has
been
committed
would not be justified
in the light of other
relevant
circumstances,
including the fact that
the acts concerned or

their consequences
are not of sufficient
gravity.
Article 3
Any of the following
acts, regardless of a
declaration of war,
shall, subject to and
in accordance with
the
provisions
of
article 2, qualify as an
act of aggression:
(a) The invasion or
attack by the armed
forces of a State of
the
territory
of
another State, or any
military occupation,
however temporary,
resulting from such
invasion or attack, or
any annexation by
the use of force of the
territory of another
State or part thereof,
(b) Bombardment by
the armed forces of a
State against the
territory of another
State or the use of
any weapons by a
State against the
territory of another
State;
(c) The blockade of
the ports or coasts of
a State by the armed
forces of another
State;
(d) An attack by the
armed forces of a
State on the land, sea
or air forces, or
marine and air fleets
of another State;
(e) The use of armed
forces of one State
which are within the
territory of another
State
with
the
agreement of the

104

receiving State, in
contravention of the
conditions provided
for in the agreement
or any extension of
their presence in
such territory beyond
the termination of the
agreement;
(f) The action of a
State in allowing its
territory, which it has
placed at the disposal
of another State, to
be used by that other
State for perpetrating
an act of aggression
against a third State;
(g) The sending by or
on behalf of a State
of
armed
bands,
groups, irregulars or
mercenaries, which
carry out acts of
armed force against
another State of such
gravity as to amount
to the acts listed
above,
or
its
substantial
involvement therein.
Article 4
The acts enumerated
above
are
not
exhaustive and the
Security Council may
determine that other
acts
constitute
aggression under the
provisions
of
the
Charter.
Article 5
1. No consideration of
whatever
nature,
whether
political,
economic, military or
otherwise, may serve
as a justification for
aggression.
2.
A
war
of
aggression is a crime
against international

peace.
Aggression
gives
rise
to
international
responsibility.

conformity with the


above-mentioned
Declaration.
Article 8

3.
No
territorial
acquisition or special
advantage resulting
from aggression is or
shall be recognized
as lawful.
Article 6
Nothing
in
this
Definition shall be
construed as in any
way enlarging or
diminishing the scope
of
the
Charter,
including
its
provisions concerning
cases in which the
use of force is lawful.
Article 7
Nothing
in
this
Definition, and in
particular article 3,
could in any way
prejudice the right to
self-determination,
freedom
and
independence,
as
derived
from
the
Charter, of peoples
forcibly deprived of
that right and referred
to in the Declaration
on
Principles
of
International
Law
concerning Friendly
Relations
and
Cooperation among
States in accordance
with the Charter of
the United Nations,
particularly peoples
under colonial and
racist regimes or
other forms of alien
domination: nor the
right of these peoples
to struggle to that end
and to seek and
receive support, in
accordance with the
principles
of
the
Charter
and
in

In their interpretation
and application the
above provisions are
interrelated and each
provision should be
construed
in
the
context of the other
provisions.
_________________
_________________
_________
FOOTNOTES
1. Official Records of
the
General
Assembly,
Twentyninth
Session,
Supplement No. 19
(A/9619 and Corr. 1).
2. Resolution
(XXV), annex.

2625

3. Explanatory notes
on articles 3 and 5
are to be found in
paragraph 20 of the
Report of the Special
Committee on the
Question of Defining
Aggression (Official
Records
of
the
General
Assembly,
Twenty-ninth
Session, Supplement
No. 19 (A/9619 and
Corr. 1). Statements
on the Definition are
contained
in
paragraphs 9 and 10
of the report of the
Sixth
Committee
(A/9890

Acts of Aggression:

1. invasion or attack of an
occupation however temp
the use of force
2. bombardment or use of a
the territory of another state
3. blockade of the ports of coa
4. attacking another states
land, sea
5. use of armed forces of fo
against the Philippines wh
subic, or extension of the
what was agreed upon
6. allowing a territory placed
by another state, for use i
of aggression against a thir
7. sending out armed ban
irregulars to carry out a
another state of such gravit
above-listed acts.
Here the term state is used:
1.
2.

without prejudice to qu
or whether a state is a
not
includes the concept o
where appropriate.

Waldock,
The
Regulation of the
Use of Force by
Individual States in
International Law
Before League of
Nations, IL did not
regulate war, only
forcible
measures
short of war. Such
measures are:
retorsion threat of
imposing
higher
customs duties, tariffs
etc;

reprisal- injured state


legitimately imposes
on offending state
reparation when a)
Notes:
that state violated IL
Aggression is the use of armed
a state
against
b) force
thereby had
been
the sovereignty or territorial
integrity
or
political
previous
independence of another state,unsuccessful
or in any manner
set out
demand
by the UN Charter
for rederess and c)

105

measures
were
reasonably
proportionate to the
injury
interventiondictatorial
interference
in
external or internal
matters of a State
that is injurious to its
political
independence
and
territorial
integrity;
Generally illegitimate
except:
1) specific
treaty
right to intervene
2) by way way of
legitimate reprisal
3) in self-defense &
self protection

of the State

Self-defense (D) and


Self-Protection (P)
D legit if:
1) actual or
threatened
infringement of
rights of
defending state
2) failure or inability
of other State to
use its powers to
stop or prevent
infringement
3) act is strictly
confined to
stopping or
preventing
infringement and
reasonably
proportionate.

A. Preliminary
Matters Resolved
By the ICJ

Another one of these


measures,
forcible
measures of self-help
(H), was regulated by
defined
principles,
which
principles
though
were
weakened by the fact
that escalation of
measures to war itself
removed the dispute
from
any
legal
dispute.
Note: UN Charter
prohibits war as a tool

Cases:
Nicaragua, supra
Legality
of
the
Threat or Use of
Nuclear
Weapons
(1996)
ISSUE: is the threat
or use of nuclear
weapons
in
any
circumstance
permitted
under
international law? (Is
there
any
international
norm
which
specifically
prohibit/authorize the
use
of
nuclear
weapons?)

1. ICJ
has
jurisdiction to give
advisory opinion
as authorized by
Art. 65 (1) of the
UN Charter at the
request
of
whatever body or
in
accordance
with the Charter
& Art. 95 (1) of
the UN Charter
gives the GA or
the
SC
the
authority to give
an
advisory
opinion on any
legal question
2. The
advisory
opinion relates to
a legal question
within
the
meaning of the
ICJ Statute & UN
Charter, since the
Ct is asked to
rule
on
the
compatibility
of
threat or use of
nuclear weapons
with the relevant
principles
and

rules of IL. To this


requires
the
identification
of
the
existing
principles & rules,
their
interpretation &
application to the
threat or use of
nuclear weapons
3. There would be
no reason for the
ICJ to decline the
exercise
of
jurisdiction beech
only compelling
reasons
could
lead it to such
refusal
ICJ., The purpose of
the advisory function
is not to settle at least
directly disputes
between States, but
to offer legal advice to
the
organ
&
institutions requesting
the opinion. The fact
that the ? put to the
Ct. does not relate to
a specific dispute
should consequently
lead the Ct to decline
to give the opinion
requested.
4. The Ct. is not
going beyond its
judicial role &
would be taking
upon itself a lawmaking capacity.
The Ct. cannot
legislate & it is
not called upon,
in the CAB, to do
so. Rather, its
task is to engage
in
its
normal
judicial functions
of
ascertaining
the existence or
otherwise of legal
principles & rules
applicable to the
threat or use of
nuclear weapons.

The Ct. merely


states
the
existing law &
does
not
legislate.
B. Formulation
of
the Question Put
to the Ct. by the
General
Assembly
There are two texts of
the question, one in
English and one in
French. There are
some criticisms on
the use of the work
permitted
as
incompatible with the
basis of IL of the
principles
of
sovereignty
7
consent.
ICJ., The Ct. finds it
unnecessary
to
pronounce on the
possible divergence
between the two texts
of
the
question
posed.
Its
real
objective is clear: to
determine the legality
or illegality of the
threat or use of
nukes.
C. Relevant
Applicable Law
ICJ.,
The
court
concludes that the
most directly relevant
applicable law, is that
relating to the use of
force enshrine in the
UN Charter & the law
applicable in armed
conflict
which
regulates the conduct
of hostilities, together
with
any
specific
treaties on nuclear
weapon that the court
might determine to be
relevant
D. Unique Char. Of

106

Nukes
Nuclear weapons are
explosive
devices
whose energy results
from the fusion or
fission of the atom.
By its very nature,
that process releases
not only immense
amount of heat &
energy
but
also
powerful & prolonged
radiation. The first
two
causes
of
damage are more
powerful than the
damage caused by
other weapons, while
the phenomenon of
radiation is said to be
peculiar to nuclear
weapons. These char.
renders the nukes
potentially
catastrophic.
The
destructive power of
nuclear
weapons
cannot be contained
in either space or
time. They have the
potential to destroy all
civilization
&
the
entire ecosystem of
the planet.
E. Legality/illegality
of Recourse to
nuclear weapons
in the light of the
provision of the
charter relating to
the threat or use
of force

Under the
Charter:

UN

Art. 2 (4)
Art.
51

conditions
of
necessity
&
proportionality in
the exercise of
the inherent right
of the individual &
collective
self-

defense if an
armed
attack
occurs
the
notions of threat
& use of force
stand
together;
possession
of
nukes,
deterrence
&
threat
Art. 42 whereby
the SC may take
military
enforcement
measures
in
conformity
with
Chap. VII.
ICJ: these provisions
do not refer to
specific
weapons.
They apply to any
use
of
force
regardless of the
weapons employed.
The Charter rather
expressly prohibits,
not permits the use of
any specific weapon,
including nukes. A
weapon that is really
unlawful
per
se,
whether by treaty or
custom, does not
become lawful by
reason of its being
used for a leg.
Purpose under the
Charter.
ICJ Conclusion No. 1
A threat or use of
force by means of
nuclear weapons that
is contrary to Art. 2
(4) of the UN charter
and that fails to meet
all the requirements
of Art. 51, is unlawful.

Specific
rules
regulating
lawfulness
or
unlawfulness of
the recourse to
nuclear weapons

ICJ Conclusion No. 2

There
is
in
neither customary
nor conventional
law any specific
authorization of
the threat or use
of
nuclear
weapons

ICJ Conclusion No. 3

There
is
in
neither customary
nor conventional
law
any
comprehensive
and
universal
prohibition of the
threat or use of
nuclear weapons
as such.

A.

Unlawful
ness
per
se:
treaty law

1. Instruments
prohibiting use of
poisoned
weapons
advanced nukes
should be treated
the same way &
thus would be
prohibited under
a. Second
Hague
Declarati
on of 29
July 1899
b. Art.
23
(a) of the
Regulatio
ns
respectin
g
the
laws
&
customs
of war on
land
annexed
to
the
Hague
conventio
n IV of 18

c.

Oct. 1907
The
Geneve
Protocol
of
17
June
1925

2. Instruments
expressly
prohibiting
the
use of certain
weapons of mass
destruction
a. Conventi
on of IO
April
1972 of
the
Prohibitio
n of the
Develop
ment,
Productio
n
&
Stockpilin
g
of
Bacteriol
ogical
(biologica
l) & Toxin
Weapons
& on their
destructio
n
b. Conventi
on of 13
Jan.
1993 on
the
Prohibitio
n of the
Develop
ment,
Productio
n,
Stockpilin
g & use
of
Chemical
Weapons
& on their
Destructi
on
The Ct. does
not find any
specific
prohibitions

107

of recourse to
nuclear
weapons in
treaties
expressly
prohibiting
the use of
certain
weapons of
mass
destruction.
3. Treaties
concluded
in
order to limit the
acquisition,
manufacture
&
possession
of
nukes,
the
deployment
&
testing of nukes

Not yet resulted


in a treaty of gen.
prohibition of the
same kind as for
bacteriological &
chemical
weapons

A. The acquisition,
manufacture
&
possession
of
nukes
Treaty
of
Tlatelolco of
14 Feb 1967
Treaty
of
Rarotonga of
6
August
1985
B. ICJ:
These
treaties
could
therefore be seen
as foreshadowing
a future general
prohibition of the
use
of
such
weapons,
but
they
do
not
constitute such a
prohibition
by
themselves.
The Ct. notes the
signing, even more
recently, on 15 Dec.

1995, at Bangkok, of
a Treaty on the
Southeast
Asia
Nuclear weapon free
Zone, & on 11 April
1996, at Cairo, of a
treaty on the creation
of N-W-F-Z in Africa.
It does not however,
view these elements
as amounting to a
comprehensive
&
universal
conventional
prohibition on the
use, or the threat of
use,
of
those
weapons as such.
C. Unlawfulness Per
Se:
Customary
Law
1. Consistent
practice of nonutilization
of
nukes
a. States
which
hold the
view that
the use
of nukes
is illegal
have
endeavor
ed
to
demonstr
ate
the
existence
of
a
customar
y
rule
prohibitin
g
this
use.
They
refer to a
consisten
t practice
of
non
utilization
of nukes
by States
since
1945 &
they
would

see
in
that
practice
the
expressio
n of an
opinion
juris on
the part
of those
who
possess
such
weapons.
b. Policy of
deterrenc
e Some
states
which
assert
the
legality of
the threat
& use of
nuclear
weapons
in certain
cit.,
invoked
the
doctrine
&
practice
of
deterrenc
e
in
support
of
their
argument
. In their
view,
if
nukes
have not
been
used
since
1945, it is
not
on
acct. of
an
existing
custom
but
merely
because
circumsta
nces that
might
justify

their use
have
fortunatel
y
not
arisen.
ICJ: No
opinion
juris. The
members
of the Intl
communit
y
are
profoundl
y divided
on
the
matter of
whether
non
recourse
to nukes
over the
past 50
years
constitute
s
the
expressio
n of an
opinion
juris.
Under
the circ.
The
Court
does not
consider
itself able
to
find
that there
is
such
an
opinion
juris.
2. General
Assembly
resolutions
affirming
the
illegality of nukes
ICJ: The GA res. put
before the Ct. declare
that the use of nukes
would be a direct
violation
of
the
Charter of the UN.
Although
those
resolutions are a
clear sign of deep

108

concern regarding the


problem of nukes,
they still fall short of
establishing
the
existence
of
an
opinion juris on the
illegality of the use of
such weapons.

other.
Principles & Rules of
International
Humanitarian Law
ICJ Conclusion No. 4

3. The Court points


out
that
the
adoption
each
year
by
the
General
Assembly, by a
large majority, of
resolutions
recalling
the
comment
of
Resolution 1653
(XVI),
&
requesting
the
member states to
conclude
a
convention
prohibiting
the
use of nuclear
weapons in any
circumstance,
reveals the desire
of a very large
section of the intl
community
to
take,
by
a
specified
&
express
prohibition of the
use of nukes, a
significant
step
forward along the
road to complete
nuclear
disarmament.
The emergence,
as lex lata, of a
customary
rule
specifically
prohibiting
the
use of nuclear
weapons as such
is hampered by
the
continuing
tensions bet. The
nascent opinion
juris on the hand,
&
still
strong
adherence to the
pratice
of
deterrence on the

A threat or use of
nuclear weapons
should also be
compatible with
the requirements
of
the
international law
applicable
in
armed
conflict,
particularly those
of the principles
and
rules
international
humanitarian law.
As well as with
specific
obligations under
treaties and other
undertakings
which expressly
deal with nuclear
weapons.

Conclusions
It follows from the
above
mentioned
requirements that the
threat or use of
nuclear
weapons
would generally be
contrary to the rules
of international law
applicable in armed
conflict,
and
in
particular
the
principles and rules of
humanitarian
law.
However, in view of
the current state of it,
and of the elements
of fact at its disposal,
the
court
cannot
conclude definitively
whether the threat or
use
of
nuclear
weapons would be
lawful or unlawful in
an
extreme
circumstance of self
defense, in which the

very survival of a
state would be at
stake.
In the long run IL, and
with the stability of
the intl order which it
is intended to govern,
are bound to suffer
from the continuing
difference of view
with regard to the
legal
status
of
weapons as deadly
as nuclear weapons.
It is consequently
important to put an
end to this state of
affairs:
the
long
promised
complete
nuclear disarmament
appears to be the
most
appropriate
means
of
achievement
that
result.
There
exists
an
obligation to pursue
in good faith and
bring to a conclusion
negotiations leading
to
nuclear
disarmament in all its
aspects under strict
and
effective
international control.

of self-defence shall
be
immediately
reported
to
the
Security Council and
shall not in any way
affect the authority
and responsibility of
the Security Council
under the present
Charter to take at any
time such action as it
deems necessary in
order to maintain or
restore international
peace and security.
Brownlie, The Use
of Force in Selfdefense (1961)
Some conclusions on
the state of the
customary law as it
had developed by
1914

B. Self-Defense
UN Charter, Article
51
Nothing
in
the
present Charter shall
impair the inherent
right of individual or
collective
selfdefence if an armed
attack occurs against
a Member of the
United Nations, until
the Security Council
has taken measures
necessary
to
maintain international
peace and security.
Measures taken by
Members
in
the
exercise of this right

The right of selfpreservation


is
regarded
as
identical with that
of self-defense
The justified use
of
force
in
exercise of the
right
of
selfpreservation
is
identical with the
operation of the
doctrine
of
necessity
The occasions for
lawful
intervention are
identical with the
justification
provided by the
right
of
selfpreservations &
the doctrine of
necessity
(intervention
is
applied
to
justified use of
force,
&
sometimes
employed by both
governments and
writers
to
describe
action

109

not intended to
create a state of
war.
There is no clear
distinction
between exercise
of a right to go to
war in exercise of
the right of selfpreservation & its
other forms, on
the one hand, &
hostile measures
short of war. On
the other.
The variety of
ways in which
governments
&
writers
characterize
&
classify
the
various occasions
when force has
been
used
indicates the ex
post
facto
&
illogical nature of
their
classifications.
The confusion is
traceable to a
dislike
of
governments for
open reliance on
an arbitrary right
to resort to war.
As a result there
was a practice of
relying
on
vaguely defined
grounds justifying
the use of force.

Analytically, the
customary right of
self-preservation
&
the
doctrine
of
necessity
comprehend
2
situations:
a. Action to enforce
legal rights. This
in theory would
restrict the use of
force to cases in
which
pacific
settlement
had

failed.
b. A much wider
freedom of action
when security is
threatened, or the
status quo is
disturbed: it is in
this situation that
the law ceases to
have any limiting
effect.
The
greatest
obstacle to adequate
legal regulation of the
use of force was the
right
to
self
preservation & the
related
tangle
of
doctrines concerning
necessity
&
intervention.

State practice in the


pd. 1920-29

State
Practice
&
doctrine in the pd.
1930-1939

The state practice


of the period 1920-30
chiefly in the form of
treaties, considered
force to be lawful in 5
situations:
1. treaty creating a
casus belli in
advance
2. use of force sa a
consequence of
provocation
3. an action taken
by virtue of Art.
16
of
the
covenant
(provided
for
sanctions vs. the
aggressor
with
the
object
of
reinforcing
the
provisions
for
peaceful
settlement,
policing
the
aggressor).
4. axn in collective
defense
5. force justified by
the
right
of
legitimate
defense
The right of legitimate
defense. Doctrine &

It gives the strong


indication
that
force was force
was justified only
in reaction vs.
some threat or
force

Parties to the
Gen, Treaty for
the Renunciation
of War agreed
that no act of
aggression could
be justified on the
following
grounds:
1. The
internal
condition
of a state
2. The intl
conduct
of a state

The right of self


defense in the Pd.
After WWII

The
increasing
acceptance
by
the states in the
pd. between 1920
& 1969 of the
view that war or
any use of force
as an instrument
of national policy
was unlawful, ahs
resulted in the
demise of the
right of self-help
&
of
selfpreservation.
While the right of
self-preservation
no longer existed
in its classical
form, some of its
contents
was
preserved. This

residual right was


referred to as that
of self-defense or
legitimate
defense. It was
confined
to
reaction
to
immediate
danger to the
physical integrity
of the state itself.
The right of SD
commonly
appeared in the
context of the use
of force. It was
essentially
a
reaction by a
State vs. the use
or threat of force
by the armed
forces of another
state.
The
essence of such
a
right
was
proportionality to
the threat offered
&
this
would
create
a
presumption that
force was only
lawful
as
a
reaction vs. force

The
right
of
Anticipatory
Selfdefense
in
the
Customary Law

19th
century
customary
law
permitted
anticipatory
action in face of
imminent danger
Anticipatory
action has taken
& stated to the
exercise of the
right
of
selfdefense
on
several occasions
vs. armed bands
operating
from
neighboring
territory
or
proceeding
by
sea towards the

110

acting
state
although
still
outside territorial
waters.
Some reservations on
the Customary Law in
respect of Ant. Action

As a matter of
principle & policy,
anticipatory self
defense is open
to
certain
objections.
It
involves
a
determination of
the certainty of
attack which is
extremely difficult
to
make
&
necessitates an
attempt
to
ascertain
the
intention of a
government

The
Rule

Proportionality

The force used


must
be
proportionate to
the threat. The
formula used was
that self-defense
must
involve
nothing
unreasonable or
excessive; since
the act justified
by the necessity
of self defense,
must be limited
by that necessity
& kept clearly
within it.

The right of Selfdefense under the


UN Charter

manner
that
intl
peace & security, &
justice
are
not
endangered.
(4)
xxx
shall
refrain in their intl
relations from the
threat or use of force
vs. territorial integrity
or
political
independence of any
state.

Art. 2 of the UN
Charter
(3) All members
shall settle their intl
disputes by peaceful
mean in such a

Art. 51 Nothing in
the
present
charter
shall
impair
the
inherent right of
individual
or
collective
selfdefense is an
armed
attack
occurs
vs.
a
member of the
UN
until
the
security council
has
taken
measures
necessary
to
maintain
intl
peace
&
security
There is a gen.
assumption that
the
charter
prohibited
selfhelp & armed
reprisals. Art. 51
is presented as
rendering all use
of force illegal
except in the
exercised of the
right of SD if an
armed
attack
occurs.
Even if it is
accepted that Art
51 contains the
sole content of
self-defense
within
the
Charter, it may be
argued that the
right
of
selfdefense existing
in general law is
still
always

available to the
UN members, the
right
being
broader than that
stated in Art. 51.
Does Art. 51 Permit
Anticipatory
Selfdefense?

The
relations
of
customary law & the
UN charter

The right of selfdefense remains


unimpaired if an
armed
attack
occurs vs. a UN
member the
ordinary meaning
of the phrase has
been taken to
PRECLUDE
actions which are
preventive
in
character.
What is an armed
attack?

May
include
support
for
revolutionary
groups;
Experience has
shown that an
armed attack is
ordinarily
selfevident.
This
does not mean
incidents created
by irresponsible
groups
or
individuals,
but
rather, an attack
by one state upon
another.
Purely
internal disorders
or
revolutions
would not be
considered within
the meaning of
an armed attack.
However, if a
revolution were
aided & abetted
by an outside
force,
such
assistance might
possibly
be
considered
an
armed attack.

If the correctness
of the view that
for UN members,
Art. 51 defines
the right of selfdefense & is not
qualified by the
customary law is
accepted,
then
states not bound
by the obligations
of the charter
have
less
extensive
obligations
that
member states.
By 1945 selfdefense
was
understood to be
justified only I
case of an attack
by forces of a
state.
It is submitted
that
there
is
considerable
justification
for
the
conclusion
that the right of
SD, individual or
collective, which
has
received
general
acceptance in the
most
recent
period
has
a
content identical
with the right
expressed in Art.
51.

Self-defense on the
High Seas & claims
to jurisdiction on the
Basis of Self Defense

The legal position


is dominated by
the
customary
rule that vessels
on the open sea
remain under the
jurisdiction of the

111

flag state
There
is
a
customary right of
approach
on
suspicion
of
piracy,
&
of
seizure
&
punishment,
a
right which is
universally
recognized.
The right of hot
pursuit has the
overwhelming
support of State
practice.
This
right
exists
independent
of
the legal category
of self-defense. It
exist in order that
the exercise of
jurisdiction within
the
territorial
water should be
effective.
It must now be
recognized that
the principle of
contiguous zone
for purposes of
enforcing
customs, fiscal &
sanitary laws has
become a part of
the
customary
law,
Art.
22(1)
UNCLOS
58
Except
where
acts
of
interference
derive
from
powers conferred
by
treaty,
a
warship
which
encounters
a
foreign merchant
ship on the highs
is not justified in
boarding
her
unless there is a
reasonable
ground
for
suspecting:
1. that the
ship
is
engaged

in piracy
2. in
the
slave
trade, or
3. though
flying a
foreign
flag
or
refusing
to show
its flag,
the ship,
in reality,
of
the
same
nationalit
y

Conclusion

Case:

Legality
of
the
Threat and Use of
Nuclear
Weapons
(1995), supra

The Use of Force

The use of force


is implicit in the
terms war of
aggression
,
invasion
,
attack
&
aggression.
Use of weapons
which do not
involve
any
explosive effect,
with concomitant
shock waves &
heat, such as
bacteriological,
biological
&
chemical
could
be assimilated to
the use of force.
These weapons
are employed for
the destruction of
life and property.

Special Cases
Necessity

of

Some instances
may
be
considered
in
which
serious
danger to the
territory of a State
arises o.w. than
as a result of a
use of armed
force.

These
considerations
have
caused
jurists
&
governments to
place emphasis
on the question of
determining
cases in which
resort to force is
justified, or the
permission rather
than
the
prohibition.
The modern law
relating to the use
of force in SD is
represented
by
the
major
proposition that
the beginning of
an armed attack
is a condition
precedent
for
resort to force in
self defense.
Anticipatory self
defense
is
unlawful;
an
attack must have
commenced.
Further,
the
attack must be
directed vs. State
territory
&
territorial water.
Forcible
intervention
to
protect the lives
&, or property of
nationals is not
lawful as selfdefense & the
modern
legal
regime may well
be considered to
render
such
action
unlawful
even if it is
characterized as
a special right of
intervention.

1. Use of Force by
UN

(articles cited by Sir


Magi)
Article 2
The Organization and
its
Members,
in
pursuit
of
the
Purposes stated in
Article 1, shall act in
accordance with the
following Principles.
1. The
Organization
is based on
the principle
of
the
sovereign
equality of all
its Members.
2. All Members,
in order to
ensure to all
of them the
rights
and
benefits
resulting from
membership,
shall fulfill in
good faith the
obligations
assumed by
them
in
accordance
with
the
present
Charter.
3. All Members
shall
settle
their
international
disputes by
peaceful
means
in
such
a
manner that
international
peace
and
security, and

112

justice,
are
not
endangered.
4. All Members
shall refrain
in
their
international
relations from
the threat or
use of force
against the
territorial
integrity
or
political
independenc
e
of
any
state, or in
any
other
manner
inconsistent
with
the
Purposes of
the
United
Nations.
5. All Members
shall give the
United
Nations
every
assistance in
any action it
takes
in
accordance
with
the
present
Charter, and
shall refrain
from giving
assistance to
any
state
against which
the
United
Nations
is
taking
preventive or
enforcement
action.
6. The
Organization
shall ensure
that
states
which are not
Members of
the
United
Nations act in
accordance
with
these
Principles so
far as may be

necessary for
the
maintenance
of
international
peace
and
security.
7. Nothing
contained in
the present
Charter shall
authorize the
United
Nations
to
intervene in
matters
which
are
essentially
within
the
domestic
jurisdiction of
any state or
shall require
the Members
to
submit
such matters
to settlement
under
the
present
Charter; but
this principle
shall
not
prejudice the
application of
enforcement
measures
under
Chapter Vll.
Article 24
1. In order to
ensure
prompt and
effective
action by the
United
Nations, its
Members
confer on the
Security
Council
primary
responsibility
for
the
maintenance
of
international

peace
and
security, and
agree that in
carrying out
its
duties
under
this
responsibility
the Security
Council acts
on
their
behalf.
2. In
discharging
these duties
the Security
Council shall
act
in
accordance
with
the
Purposes
and
Principles of
the
United
Nations. The
specific
powers
granted
to
the Security
Council
for
the discharge
of
these
duties
are
laid down in
Chapters VI,
VII, VIII, and
XII.
3. The Security
Council shall
submit
annual and,
when
necessary,
special
reports to the
General
Assembly for
its
consideration
.
Article 26
In order to promote
the
establishment
and maintenance of
international peace
and security with the
least diversion for
armaments of the

world's human and


economic resources,
the Security Council
shall be responsible
for formulating, with
the assistance of the
Military
Staff
Committee referred
to in Article 47, plans
to be submitted to the
Members
of
the
United Nations for the
establishment of a
system
for
the
regulation
of
armaments.
Article 33
3. The parties
to
any
dispute, the
continuance
of which is
likely
to
endanger the
maintenance
of
international
peace
and
security,
shall, first of
all, seek a
solution
by
negotiation,
enquiry,
mediation,
conciliation,
arbitration,
judicial
settlement,
resort
to
regional
agencies or
arrangement
s, or other
peaceful
means
of
their
own
choice.
Article 39
The Security Council
shall determine the
existence
of
any
threat to the peace,
breach of the peace,
or act of aggression

113

and
shall
make
recommendations, or
decide
what
measures shall be
taken in accordance
with Articles 41 and
42, to maintain or
restore international
peace and security.
Article 41
The Security Council
may decide what
measures not
involving the use of
armed force are to be
employed to give
effect to its decisions,
and it may call upon
the Members of the
United Nations to
apply such measures.
These may include
complete or partial
interruption of
economic relations
and of rail, sea, air,
postal, telegraphic,
radio, and other
means of
communication, and
the severance of
diplomatic relations.
Article 42
Should the Security
Council consider that
measures provided
for in Article 41 would
be inadequate or
have proved to be
inadequate, it may
take such action by
air, sea, or land
forces as may be
necessary
to
maintain or restore
international peace
and security. Such
action may include
demonstrations,
blockade, and other
operations by air,
sea, or land forces of
Members
of
the
United Nations.

Article 51
Nothing
in
the
present Charter shall
impair the inherent
right of individual or
collective
selfdefence if an armed
attack occurs against
a Member of the
United Nations, until
the Security Council
has taken measures
necessary
to
maintain international
peace and security.
Measures taken by
Members
in
the
exercise of this right
of self-defence shall
be
immediately
reported
to
the
Security Council and
shall not in any way
affect the authority
and responsibility of
the Security Council
under the present
Charter to take at any
time such action as it
deems necessary in
order to maintain or
restore international
peace and security.
Article 53
1. The Security
Council shall,
where
appropriate,
utilize such
regional
arrangement
s or agencies
for
enforcement
action under
its authority.
But
no
enforcement
action shall
be
taken
under
regional
arrangement
s
or
by
regional
agencies

without
the
authorization
of
the
Security
Council, with
the exception
of measures
against any
enemy state,
as defined in
paragraph 2
of this Article,
provided for
pursuant to
Article 107 or
in
regional
arrangement
s
directed
against
renewal
of
aggressive
policy on the
part of any
such
state,
until
such
time as the
Organization
may,
on
request
of
the
Governments
concerned,
be charged
with
the
responsibility
for
preventing
further
aggression
by such a
state.
2. The
term
enemy state
as used in
paragraph 1
of this Article
applies
to
any
state
which during
the Second
World
War
has been an
enemy of any
signatory of
the present
Charter.
TD Gill, Legal and

Some
Political
Limitations on the
Power of the UN
Security Council to
Exercise
its
Enforcement
Powers
Under
Chapter 7 of the
Charter
(NOT
AVAILABLE)
Danish
Sarooshi,
The United Nations
And
The
Development
Of
Collective Security
(NOT AVAILABLE)

Bedjaoui, The New


World Order and
the
Security
Council
(NOT
AVAILABLE)

TALK LATIN.
PEOPLE WILL
THINK YOURE
SMART
(TERMS IN
INTERNATIONAL
LAW)

a fortiori - according
to
Webster:
"with
greater reason or
more convincing force
-- used in drawing a
conclusion that is
inferred to be even
more certain than
another."

Example: If it is a
violation
of
the
sending state's rights

114

to arrest its consular


official, then a fortiori
it would be a violation
to
arrest
its
ambassador.
a posteriori - from
effect to cause; from
particular to general;
inductive (based on
observation
or
experience).
a priori - from cause
to
effect;
from
generalization
to
particular; deductive;
presupposed by or
reasoning from selfevident propositions
(based
on
theory
rather than practice).
amicus
curiae
"friend of the court"; a
person with a strong
interest in or views on
the subject matter of a
given legal action may
petition the court for
permission to file a
brief, ostensibly on
behalf of a party but
actually to suggest a
rationale
consistent
with its own views.
Such amicus curiae
briefs are commonly
filed
in
appeals
concerning matters of
a
broad
public
interest.

Example: NPC of Iran


v. M/T Stolt Sheaf
case
contra
legem
"against
the
law"
(term
used
to
describe an equitable
decision of a court or
tribunal
that
is
contrary to the law
governing
the
controversy. Such a
decision would not

normally be permitted
unless the tribunal
had been empowered
to act ex aequo et
bono). As opposed to
intra legem.
de facto - in fact (as
opposed to in law, de
jure)

de lege ferenda what the law ought to


be (as opposed to
what the law is, lex
lata).

de lege lata - what


the law is (as opposed
to what the law ought
to
be,
de
lege
ferenda).

Party B to take an
action that is the
subject of the current
claim.

Case illustrations: the


Tinoco
Claims
Arbitration and the
Eastern
Greenland
case
ex aequo et bono - a
judgment based on
considerations
of
fairness,
not
on
considerations
of
existing law. Such a
judgment is rendered
"beside" or "against
the
law"
(praeter
legem
or
contra
legem), not within the
law (infra legem or
intra legem).
Example: Article 38(2)
of the I.C.J. Statute
permits the Court to
render a judgment on
these grounds

erga omnes - "toward


all" wrongful acts that
harm everyone and
not simply one injured
party)

ex propio motu - on
its own accord.

the
of
legal
"You
both
"You
cake

Hypothetical example:
Party A cannot claim a
right from Party B if
Party A previously
took actions or made
statements that were
contrary to the current
claims and which led

to

contra

ipso facto - by the


fact (or act) itself.

de jure - in law (as


opposed to in fact, de
facto).

estoppel
requirement
consistency in
argumentation.
can't have it
ways." That is:
can't have your
and eat it, too."

opposed
legem.

inter alia - among


other things.

intra fauces terra "in the jaws of the


land." a principle for
defining
territorial
seas.

intra legem - "within


the law" (term used to
describe an equitable
decision of a court or
tribunal
that
is
consistent with the
rules of law governing
the controversy). As

jus inter gentes "law among peoples"


(nations).

jus civile - law


created within each
country.

Jus civile is one of two


categories of law in
formal Roman law,
along
with
jus
gentium.

jus
cogens
"compelling
law,"
peremptory principles
of international law
that
cannot
be
overriden by specific
treaties
between
countries; that is:
norms that admit of
no derogation; they
are binding on all
states at all times
(e.g., prohibitions on
aggression, slavery,
and genocide)..

jus gentium - "law of


peoples" or "law of
tribes," a body of law
developed
by
a
Roman
praetor
peregrinus; applied to
non-Romans in the
Empire
and
to
dealings
between
Romans and nonRomans.

115

Jus gentium is one of


two categories of law
in formal Roman law,
along with jus civile.

lex lata - what the law


is (as opposed to
what the law ought to
be, de lege ferenda).

jus naturale - law of


nature.

lex
posterior
derogat priori - more
recent law prevails
over
(abrogrates,
overrrules, trumps) an
inconsistent
earlier
law. One test that is
applied
in
circumstances when
(1) both customary
and treaty sources of
law exist and (2)
these two sources
cannot be construed
consistently.

the classical Greeks


originated the "natural
law" idea, but it was
greatly
elaborated
upon by the Romans,
including
Marcus
Aurelius and Cicero;
natural law scholars
argue that law has a
metaphysical source
(God, nature) and is
apprehensible
by
rational humans; the
law transcends tiem,
place,
and
circumstance
jus sanguines - the
"right of blood" or "law
of descent" - at birth
an individual acquires
the nationality of her
or his parents. In
contrast to jus soli.
jus soli - the "law (or
right) of the soil" - the
legal principle that an
individual's nationality
is determined by that
person's place of birth
(that is, the territory of
a given state)

Contrast
sanguines

to

Contrast
specialis
generali .

to
lex
derogat

lex scripta - written,


"black letter" law
lex specialis derogat
generali - specific law
prevails
over
(abrogrates,
overrrules,
trumps)
general law. One test
that is applied in
circumstances when
(1) both customary
and treaty sources of
law exist and (2)
these two sources
cannot be construed
consistently.

jus

lacunae - "holes" in
the law; a gap or
blank in a writing.
lex communis - the
common law; the
body of law developed
by human practice.

Contrast
posterior
priori.

to
lex
derogat

locus delicti - The


place of the offense.

male captus, bene

detentus - "badly
captured,
well
detained," the legal
principle that permits
the
trial
of
an
improperly
seized
defendant; in U.S.
practice,
articulated
by the "Ker-Frisbie
doctrine"

mare
clausum
closed
seas;
as
opposed
to
mare
liberum (freedom of
the seas)

mare
liberum
freedom of the seas;
as opposed to mare
clausum
(closed
seas)

mesne assignment an "assignment" is a


transfer or making
over to another of the
whole of any property,
real or personal, or of
any estate or right
therein; a "mesne
assignment" (from the
Old English "mesne"
for
"intermediate,
intervening") is an
assignment
intervening between
an original grant and
the last assignment

See:
Upright
v.
Mercury
Business
Machines
mutatis mutandis "when what must be
changed has been
changed,"
after
making the necessary
changes;
with
alterations to fit the
new circumstances.
For example: "The

new
provisions
governing
the
tribunal's operations
are to apply as well to
the court's operations,
mutatis mutandis.
non liquet - the law is
insufficient to provide
a decision
opinio juris sive
necessitatis - (or
simply, opinio juris)
the perception that a
given
behavior
is
required by law, that it
is legally obliged, a
duty. (as opposed to
behaviors that are
motivated by other
concerns, or simply
random or habitual
behavior).

Example: the
Lotus case.

S.S.

pacta sunt servanda


- the doctrine that
agreements must be
observed (that is:
honored, obeyed).

Contrast to rebus sic


stantibus.

persona non grata An unwelcome person


-- this is the basis of
expulsion
in
diplomatic exchanges.

praetor peregrinus the Roman magistrate


who devised the rules
of the jus gentium

prima facie - "at first


sight," on the face of
it,
on
first

116

consideration.
Something presumed
or inferred to be true,
unless
proven
otherwise.
The
standard of evidence
applied
at
U.S.
extradition hearings.

quod hoc - on this


matter.

ratio scripta - "written


reason,"
the
assessment
of
Roman law commonly
held in the Medieval
period

rebus sic stantibus


- "matters standing
thus," "things staying
as they are" - the
doctrine that treaty
obligations hold only
as
long
as
the
fundamental
conditions
and
expectations
that
existed at the time of
their creation hold.

Contrast to pacta sunt


servanda.

res judicata - "a


matter adjudged ", the
legal
principle
common to many
municipal
law
systems that provides
that a matter is settled
once a final judgment
has
been
made.
Arguably, a general
principle
of
international
law
under Article 38 (1)(c)
of the I.C.J. Statute.

sine qua non "without which not,"


an
indispensable
condition,
a
prerequisite

res
publica
christiana
the
community
of
Christian nations.

acquired by
during war

force

in the post-colonial
context: the concept
that colonial territorial
boundaries continue
in the post-colonial
period
and
that
decolonized territories

are not terra nullius


(and thus, subject to
occupation) See, for
example,
Burkina
Faso v. Mali

vel non - "or not "

stare decisis - The


doctrine that previous
court
decisions
establish
binding
precedent for future
cases
of
similar
situations; that is, that
courts will abide by
previously
decided
cases. Stare decisis
is inapplicable to the
I.C.J..

See article 59 of the


Statute of the ICJ.
terra nullius - land
without an owner ("no
man's land"); territory
that may be acquired
by
a
state's
occupation of it
ultra vires - "beyond
the powers "; in
excess
of
the
authority conferred by
law,
and
hence,
invalid, lacking legal
effect

uti possidetis - "as


you possess", so you
may
continue
to
possess

in
the
post-war
context: the concept
that a state may retain
possession of territory

117