• International
Law
–
the
law
which
deals
“with
the
conduct
of
states
and
of
international
organizations
and
with
their
relations
inter
se,
as
well
as
with
some
of
their
relations
with
persons,
whether
natural
or
juridical.”
• Scope
–
all
the
interests
of
contemporary
international
and
even
domestic
life
• There
is
a
general
respect
for
law
because
of
the
possible
consequences
of
defiance
either
to
oneself
or
to
the
larger
society.
• Some
theories
about
international
law
o Command
theory
o Consensual
theory
o Natural
law
theory
o International
law
is
law
because
it
is
seen
as
such
by
states
and
other
subjects
of
international
law
• Public
v
private
international
law
o Public
–
governs
the
relationships
between
and
among
states
and
also
their
relations
with
international
organizations
and
individual
persons;
criminal
cases
o Private
–
really
domestic
law
which
deals
with
cases
where
foreign
law
intrudes
in
the
domestic
sphere
where
there
are
questions
of
the
applicability
of
foreign
law
or
the
role
of
foreign
courts;
civil
cases
• History
o Jus
gentium
–
law
common
to
all
men
o Hugo
Grotius
–
father
of
modern
international
law
§ “law
of
nations”
§ -‐>
“international
law”
(Jeremy
Bentham)
o Significant
Milestones
§ Peace
of
Westphalia
• Ended
30
Years
War
(1618-‐1648)
• Established
a
treaty
based
framework
for
peace
cooperation
• Pacta
sunt
servanda
–
agreements
must
be
kept
§ Congress
of
Vienna
(1815)
• Ended
Napoleonic
Wars
• Created
a
sophisticated
system
of
multilateral
political
and
economic
cooperation
§ Covenant
of
the
League
of
Nations
(1920)
• Included
Treaty
of
Versailles
which
ended
World
War
I
• Created
the
Permanent
Court
of
International
Justice
§ United
Nations
(1945)
§ End
of
the
Cold
War
• The
US
as
both
world
policeman
and
global
mediator
• UN
seems
to
have
declined
as
an
international
agency
for
the
maintenance
of
peace
Case:
Whitney
v.
Robertson
• Facts
o Whitney
imported
a
large
quantity
of
‘centrifugal
and
molasses
sugars’
In
New
York,
similar
to
sugars
produced
in
Hawaii
o Whitney
(Plaintiff)
argued
that
the
treaty
between
the
US
and
the
Dominican
Republic
(1861)
guaranteed
that
he
should
pay
no
duty
for
his
sugar
imports,
which
is
also
because
of
the
treaty
of
the
US
with
the
King
of
Hawaii
(1575)
o Hawaii
treaty
was
not
self-‐executing
o Dominican
Republic
treaty
was
self-‐executing
o A
law
was
enacted
by
Congress
later
which
overruled
the
treaty
with
Dominican
Republic
• Rule
of
Law
o When
a
treaty
and
an
act
of
legislation
is
in
conflict,
the
one
with
later
date
of
ratification
is
upheld
o Treaties
and
legislations
are
of
equal
weight
• Issue
o When
treaties
and
legislations
are
in
conflict,
which
one
should
be
upheld
• Body
o Supreme
Court
of
the
United
States
CHAPTER
2:
THE
SOURCES
OF
INTERNATIONAL
LAW
• Two
types
of
sources
o Formal
–
various
processes
by
which
rules
come
into
existence
§ Ex.
legislation
o Material
–
substance
and
content
of
the
obligation.
They
identify
what
the
obligations
are
§ Ex.
State
practice,
UN
resolutions,
treaties,
judicial
decisions,
and
the
writings
of
jurists
§ “evidence”
of
international
law
• Article
38(1)
of
the
Statute
of
the
International
Court
of
Justice
–
the
most
widely
accepted
statement
of
the
“sources”
of
international
law
o Not
a
source
of
law;
just
procedure
to
decide
on
cases
o THE
COURT
SHALL
APPLY
THE
FOLLOWING:
§ International
conventions
§ International
custom
§ The
general
principles
of
law
§ Judicial
decisions
and
teachings
of
the
MOST
HIGHLY
QUALIFIED
PUBLICISTS
OF
THE
VARIOUS
NATIONS
o Shall
not
prejudice
the
power
of
the
court
to
decide
ex
aequo
et
bono
(“according
to
the
right
and
good”
or
“from
equity
and
conscience”)
• Restatement
(Third)
of
Foreign
Relations
Law
of
the
United
States
o A
rule
of
international
law
is
one
that
has
been
accepted
as
such
by
the
international
community
of
states
§ In
the
form
of
customary
law;
§ By
international
agreement;
or
§ By
derivation
from
general
principles
common
to
the
major
legal
systems
of
the
world
o Customary
international
law
o International
agreements
o General
principles
common
to
the
major
legal
systems
• Basically
o Custom
o Treaties
and
other
international
agreements
o Generally
recognized
principles
of
law
o Judicial
decisions
and
teachings
of
highly
qualified
and
recognized
publicists
• SOURCES
o Custom
–
“a
general
and
consistent
practice
of
states
followed
by
them
from
a
sense
of
legal
obligation”
(Restatement)
§ Two
basic
elements
• Material
factor
(usus)
–
practice
of
states
o Elements:
duration,
consistency,
and
generality
of
the
practice
of
states
o Duration
(diuturnitas)
–
can
be
either
long
or
short;
not
most
important
element
o MOST
IMPORTANT
ELEMENT:
consistency
and
the
generality
of
the
practice
§ Asylum
Case
(Colombia
v
Peru)
o Uniformity
and
generality
of
practice
need
not
be
complete,
but
SUBSTANTIAL
• Subjective
factor
–
why
states
behave
the
way
they
do
(MORE
IMPORTANT;
FULFILLS
THE
DEFINITION
BY
RESTATEMENT)
o Opinio
juris
–
the
belief
that
a
certain
form
of
behavior
is
obligatory
§ It
is
possible
for
customary
law
to
develop
which
will
bind
only
some
states
§ EXCEPTIONS
AND
NOTES:
• If
the
dissenting
state
had
consistently
objected
to
the
custom
while
it
was
merely
in
the
process
of
formation
• Dissent
only
protects
the
dissenter
and
does
not
apply
to
other
states
• Contrary
practice
may
become
the
recognized
customary
law
if
it
gains
general
acceptance
§ OPINIO
JURIS
IS
A
MATTER
OF
PROOF.
The
burden
is
on
the
state
claiming
it
• Right
of
Passage
over
Indian
Territory
§ “Instant
custom”
–
from
spontaneous
activity,
ex.
World
Trade
Center
§ The
Martens
Clause
–
put
the
“laws
of
humanity”
and
the
“dictates
of
public
conscience”
on
the
same
level
as
“usages
of
states”
o Treaties
–
determine
the
rights
and
duties
of
states;
comes
from
voluntary
decision
of
sovereign
states
§ CAN
BECOME
A
UNIVERSAL
LAW
depending
on
• Number
of
contracting
parties
• Generality
of
the
acceptance
of
the
rules
created
by
the
treaty
§ Two
types
• “contract
treaties”
• “law
making
treaties”
–
creates
obligations
§ Treaties
and
Customs
• Adherence
to
treaties
can
be
indicative
also
of
adherence
to
practice
as
opinion
juris
• If
the
treaty
comes
later
than
a
custom,
treaty
prevails
• If
the
custom
is
jus
cogens
(fundamental,
inviolable),
custom
prevails
• Nicaragua
v.
United
States
o General
principles
of
law
–
principles
of
municipal
law
common
to
the
legal
systems
of
the
world
§ Chorzow
factory
case
o Judicial
decisions
§ Article
38
of
the
Statute
–
apply
judicial
decisions
as
subsidiary
means
for
the
determination
of
the
rules
of
law
§ NOTE
• “the
decisions
of
the
court
have
no
binding
force
except
between
the
parties
and
in
respect
of
that
particular
case”
• NO
stare
de
crisis
–
precedent
§ ICJ
is
a
source
of
widely
accepted
principles
in
international
law
§ Nicaragua
v.
United
States
§ Asylum
Case
o Teachings
of
highly
qualified
writers
and
“publicists”
§ Publicists
–
institutions
which
write
on
international
law
o Equity
§ Intra
legem
–
within
the
law;
the
law
is
adapted
to
the
facts
of
the
case
§ Praeter
legem
–
beyond
the
law;
it
is
used
to
full
the
gaps
of
the
law
§ Contra
legem
–
against
the
law;
the
law
is
seen
as
unjust
o Other
supplementary
evidence
§ UN
Resolutions
–
generally
considered
merely
recommendatory
• If
supported
by
all
the
states,
they
become
an
expression
of
opinio
juris
communis
• Can
also
be
a
reflection
of
what
has
become
customary
law
§ “soft
law”
–
non-‐treaty
agreements
• administrative
rules
which
guide
the
practice
of
states
in
relation
to
international
organizations
• allows
for
simpler
and
more
flexible
foundation
for
states’
future
relations
Cases
North
Sea
Continental
Shelf
Cases:
Federal
Republic
of
Germany
v.
Denmark
and
Netherlands
(1969)
• Facts
o Germany’s
(plaintiff)
coast
is
concave
while
Denmark
and
Netherlands’
are
convex.
According
to
equidistance
rule,
Germany
will
have
significantly
less
portion
of
the
shelf
despite
having
longer
coastlines.
Germany
argued
that
the
delimitation
should
be
determined
by
the
length
of
coastlines
• Rule
of
Law
o Customary
law
must
be
proven
before
it
can
be
applied
• Issue
o Is
Germany
obliged
to
accept
the
application
of
the
equidistance
principle
either
as
a
customary
international
law
or
on
the
basis
of
the
Geneva
convention?
• Decision
o The
use
of
equidistance
principle
had
not
crystallized
into
customary
law,
therefore
not
obligatory
for
the
delimitation
of
the
North
Sea
shelf
o Geneva
Convention
is
not
binding
to
Germany
even
if
Germany
signed
it
because
they
did
not
ratify
it
• Body
o ICJ
Right
of
Passage
over
Indian
Territory:
Portugal
v.
India
1960
• Facts
o Portugal
held
small
enclaves
inside
India’s
territory,
some
coastal
but
some
inland.
Portugal
claimed
they
have
the
right
of
passage
to
India’s
inland
territories
which
India
interfered
with
• Rule
of
Law
o Opinio
juris
o Customary
law
must
be
proven
before
it
can
be
applied
• Issue
o Does
Portugal
have
customary
right
of
passage
over
Indian
territory
to
its
enclaves?
• Decision
o The
existence
of
customary
law
was
proven
by
the
local
practice
that
has
been
recognized
since
the
time
India
was
still
a
colony.
o Portugal
has
the
automatic
right
of
passage
for
everything
that
is
necessary
for
the
exercise
of
sovereignty
in
the
enclaves
o This
right
of
passage
does
not
apply
to
armed
forces,
armed
police,
and
arms
and
ammunition,
for
which
permission
from
India
is
necessary
• Body
o ICJ
Legality
of
the
Threat
or
Use
of
Nuclear
Weapons
in
Armed
Conflict
(1996)
• Deterrence
–
involves
a
threat
to
use
nuclear
weapons
under
certain
circumstances
on
a
potential
enemy
or
an
enemy;
if
a
threatened
retaliatory
strike
was
consistent
with
military
necessity
and
proportionality,
it
would
not
necessarily
be
illegal
• Possession
of
nuclear
weapons
–
found
no
treaty
language
that
categorically
forbade
the
possession
of
nuclear
weapons
o the
rules
on
chemical
weapons
do
not
apply
on
nuclear
weapons
o no
customary
law
• Decision
o There
is
neither
customary
nor
conventional
international
law
that
prohibits
threat,
or
use,
or
possession
of
nuclear
weapons
o Threat
or
use
of
force
by
means
of
nuclear
weapons
contrary
to
Art.
2,
par.
4
of
the
UN
Charter
is
illegal
o Threat
or
use
of
nuclear
weapons
should
be
compatible
with
the
requirements
of
international
law
applicable
in
armed
conflict,
particularly
those
of
the
principles
and
rules
of
humanitarian
law
o Threat
or
use
of
nuclear
weapons
would
be
generally
contrary
to
the
rules
of
international
law
applicable
in
armed
conflict;
the
court
cannot
conclude
definitively
whether
the
threat
of
use
of
nuclear
weapons
would
be
illegal
in
an
extreme
circumstance
of
self-‐defense,
in
which
the
very
survival
of
a
State
would
be
at
stake
o 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
• Bodies
o Requestor:
UN
General
Assembly
o Grantor:
International
Court
of
Justice
The
Lotus
Case
(1927)
• Facts
o The
Lotus
ship
collided
with
a
Turkish
vessel
Boz-‐Kourt
in
high
seas
that
resulted
to
the
death
of
eight
Turkish
nationals.
Demons,
the
captain
of
Lotus,
was
tried
and
charged
for
manslaughter
in
Turkey.
• Rule
of
Law
o Lotus
principle
–
sovereign
states
may
act
in
any
way
they
wish
so
long
as
they
do
not
contravene
an
explicit
prohibition
§ A
State
cannot
exercise
its
jurisdiction
outside
its
territory
unless
an
international
treaty
or
customary
law
permits
it
to
do
so
§ Within
its
territory,
a
State
may
exercise
ABSOLUTE
sovereignty
o 1958
High
Seas
Convention
–
only
the
flag
state
of
the
state
of
which
the
alleged
offender
was
a
national
had
jurisdiction
over
sailors
regarding
incidents
occurring
in
high
seas
• Issue
o Did
Turkey
violate
international
law
when
Turkish
courts
exercised
jurisdiction
over
a
crime
committed
by
a
French
national,
outside
Turkey?
• Decision
o France,
as
the
flag
state,
did
not
enjoy
exclusive
territorial
jurisdiction
in
the
high
seas
in
respect
of
a
collision
with
a
vessel
carrying
the
flag
of
another
state.
The
“offense
produced
its
effects
on
the
Turkish
vessel
and
consequently
in
a
place
assimilated
to
Turkish
territory”
o A
state
would
have
territorial
jurisdiction
even
in
the
crime
was
committed
outside
its
territory,
so
long
as
the
constitutive
element
of
the
crime
was
committed
in
that
State
• Body
o Permanent
Court
of
International
Justice
CHAPTER
3:
THE
LAW
OF
TREATIES
• 1969
Vienna
Convention
on
the
Law
of
Treaties
• 1986
Convention
on
the
Law
of
Treaties
Between
States
and
International
Organizations
or
Between
International
Organizations
• Treaty
–
“an
international
agreement
concluded
between
States
in
written
form
and
governed
by
international
law,
whether
embodied
in
a
single
instrument
or
in
two
or
more
related
instruments
and
whatever
its
particular
designation.”
(Vienna
Convention)
• Even
an
oral
agreement
can
be
binding,
but
only
those
that
are
in
written
form
are
covered
by
the
Convention
• No
particular
form
is
prescribed
• Qatar
v.
Bahrain
(1994)
• For
something
to
be
considered
an
agreement:
o The
commitment
was
very
specific
o There
was
a
clear
intent
to
be
bound
• Function
of
Treaties
o Multilateral
treaties
–
open
to
all
states;
create
norms
which
are
the
basis
for
a
general
rule
of
law
§ Codification
treaties
§ “law-‐making
treaties”
o Create
collaborative
mechanism
o Bilateral
treaties
–
“contract
treaties”
• The
making
of
treaties
o Negotiation
§ Bilateral
to
few
countries
multilateral
–
foreign
ministries
§ Larger
multilateral
treaties
–
diplomatic
conferences
o Power
to
negotiate
–
see
p.28
§ Non-‐automatic
• If
he
produces
appropriate
full
powers
• It
appears
from
practice
of
State
of
other
circumstances
that
they
intend
to
consider
that
person
as
representing
the
State
§ Automatic
• Heads
of
State,
Government,
and
Ministers
of
Foreign
Affairs
• Heads
of
Diplomatic
Mission
o Authentication
of
text
-‐
signatures
§ Adoption
• Consent
of
all
the
States
participating
in
its
drawing
up
• 2/3
of
the
States
present
and
voting,
unless
they
decide
to
apply
a
different
rule
§ Authentication
of
the
text
• By
procedure
agreed
by
the
States
• By
the
signature,
signature
ad
referendum
or
initialing
by
the
representatives
of
those
States
of
the
text
of
the
treaty
or
of
the
Final
Act
of
a
conference
incorporating
the
text
• MAKES
THE
TEXT
AUTHORITATIVE
AND
DEFINITIVE
o Consent
to
be
bound
§ Means
of
expressing
(States)
• Signature,
exchange
of
instruments
constituting
a
treaty,
ratification,
acceptance,
approval
or
accession,
or
by
any
other
means
if
so
agreed
• By
the
signature
of
the
state
representative
when
o The
treaty
provides
that
signature
shall
have
that
effect
o It
is
otherwise
established
that
the
negotiating
States
were
agreed
that
signature
should
have
that
effect;
or
o The
intention
of
the
State
to
give
that
effect
to
the
signature
appears
from
the
full
powers
of
its
representative
or
was
expressed
during
the
negotiation
• By
an
exchange
of
instruments
constituting
a
treaty
when
o The
instruments
provide
that
their
exchange
shall
have
that
effect
• By
ratification
o Explicit
ratification
o Under
conditions
similar
to
those
which
apply
to
ratification
o Accession
to
a
treaty
–
may
or
may
not
be
allowed
depending
on
the
rules
of
the
original
contracting
parties
o Reservations
–
“a
unilateral
statement,
however
phrased
or
named,
made
by
a
State,
when
signing,
ratifying,
accepting,
approving,
or
acceding
to
a
treaty,
whereby
it
purports
to
exclude
or
to
modify
the
legal
effect
of
certain
provisions
of
the
treaty
in
their
application
to
that
State
§ Statutes
are
not
like
treaties.
They
must
apply
to
ALL.
§ Different
from
“interpretive
declarations”
§ Not
allowed
in
cases
where
the
treaty
does
not
allow
it
or
it
defeats
the
purpose
of
the
treaty
§ Meant
only
for
multilateral
treaties
§ Reservations
may
be
not
recognized
by
some
states
o Entry
into
force
of
treaties
–
on
the
date
agreed
upon
by
the
parties
§ If
no
date
indicated,
on
the
day
consent
is
given
by
all
negotiating
States
§ Provisional
application
possible
if
the
treaty
so
provides
or
negotiating
states
have
in
some
other
manner
agreed;
revoked
if
a
State
notifies
the
other
States
of
its
intention
not
to
become
a
party
of
the
treaty
o Application
of
treaties
–
pacta
sunt
servanda
–
“agreements
must
be
kept”
§ Internal
laws
cannot
be
used
as
excuse
for
not
performing
treaty
§ Binding
upon
each
party
in
respect
of
its
entire
territory
o Interpretation
of
treaties
–
Article
31
§ Article
31(1)
–
“objective”
approach;
ordinary
meaning
§ Article
31(2)
–
“teleological”
approach;
purpose
of
the
treaty
§ Article
31(3)
–
“subjective”
approach;
honors
special
meaning
given
by
the
parties
§ Supplementary
means
of
interpretation
• The
meaning
which
best
reconciles
the
texts,
having
regard
to
the
object
and
purpose
of
the
treaty,
shall
be
adopted
• In
conflict
among
“official
texts,”
the
language
agreed
by
the
parties
as
“authoritative”
is
followed
• Invalidity
of
Treaties
o Invalidities
§ Error
–
relates
to
a
fact
or
situation
assumed
by
the
state
to
exist
at
the
time
when
the
treaty
was
concluded
and
formed
an
essential
basis
of
its
content
to
be
bound
by
the
treaty
• Error
does
not
apply
if
the
error
was
the
fault
of
the
State
• Error
in
wording
does
not
invalidate
a
treaty
Fraud
(by
another
state)
§ Corruption
of
a
representative
of
a
State
(by
another
state)
§ Coercion
of
a
representative
of
a
state
§ Coercion
of
a
state
by
the
threat
or
use
of
force
–
UN
Charter
§ Jus
cogens
–
if
conflicting
with
jus
cogens
international
law
§ • Unlawful
use
of
force
• Acts
criminal
under
international
law
• Conniving
towards
the
commission
of
acts
such
as
trade
in
slaves,
piracy,
or
genocide
o Losing
the
right
to
assert
invalidity
of
a
treaty
§ Expressing
that
the
treaty
is
valid
or
it
remains
in
force
or
continues
in
operation
§ By
reason
of
its
conduct
it
has
acquiesced
in
the
validity
of
the
treaty
§ Municipal
law
cannot
be
cited
as
justification
for
invalidating
treaty
• Amendment
and
Modification
of
Treaties
o Amendment
–
formal
revision
done
with
the
participation,
at
least
in
its
initial
state,
by
all
the
parties
to
the
treaty
§ Binding
only
to
States
that
participated
in
the
amendment
o Modification
–
involves
only
some
of
the
parties
§ Must
be
allowed
by
the
treaty
§ Parties
in
question
shall
notify
the
other
parties
of
their
intention
to
conclude
the
agreement
and
of
the
modification
to
the
treaty
• Termination
of
Treaties
o Terminated
or
suspended
according
to
the
terms
of
the
treaty
o Expiration
o Achievement
of
goal
o Other
important
modes
§ Material
breach
(Article
60)
–
if
the
other
party
violated
the
treaty
so
much
• Entitlements
of
parties
o The
other
parties
by
unanimous
agreement
to
suspend
the
whole,
in
part,
or
terminate
either
between
themselves
and
the
defaulting
state
or
between
all
the
parties
o A
party
specially
affected
by
the
breach
may
use
it
as
ground
for
suspending
the
treaty
o Any
other
party
than
the
defaulting
State
may
invoke
the
breach
as
a
ground
for
suspending
the
operation
of
the
treaty
in
whole
or
in
part
with
respect
to
itself
if
the
provisions
by
one
party
radically
changes
the
position
of
every
party
with
respect
to
the
further
performance
of
its
obligations
under
the
treaty
• Consists
of
o Repudiation
of
the
treaty
not
sanctioned
by
the
present
convention
o Violation
of
provision
essential
in
the
accomplishment
of
the
object
or
purpose
of
the
treaty
§ Supervening
impossibility
of
performance
• Permanent
disappearance
of
destruction
of
an
object
indispensable
for
the
execution
of
the
treaty;
if
not
permanent,
suspension
only
• May
not
be
invoked
if
the
impossibility
is
a
result
of
a
breach
by
that
party
either
of
an
obligation
under
the
treaty
or
of
any
other
international
obligation
owed
to
any
other
party
to
the
treaty
§ Change
of
fundamental
conditions
(rebus
sic
stantibus)
• applicable
only
when
o The
existence
of
those
circumstances
constituted
an
essential
bases
of
the
consent
of
the
parties
o The
the
effect
of
the
change
is
radically
to
transform
the
extent
of
obligations
still
to
be
performed
under
the
treaty
• Not
applicable
when
o If
the
treaty
establishes
a
boundary
o If
the
fundamental
change
is
the
result
of
a
breach
by
the
party
invoking
it
either
of
an
obligation
under
the
treaty
or
of
any
other
international
obligation
owed
to
any
other
party
to
the
treaty
• Fisheries
Jurisdiction
Case
(ICJ)
o If
it
has
resulted
in
a
radical
transformation
of
the
extent
of
the
obligations
imposed
by
it,
may,
under
certain
conditions,
afford
the
party
affected
a
ground
for
invoking
the
termination
or
suspension
of
the
treaty
o Must
have
increased
the
burden
of
the
obligations
to
be
executed
to
the
extent
of
rendering
performance
something
essentially
different
from
the
original
intention
o Procedure
for
the
Termination
of
Treaties
(see
p.
54)
o Authority
to
Terminate
§ Not
defined
by
Goldwater
v.
Carter
§ Logically
makes
sense
that
it
also
belongs
to
parties
that
can
enter
into
treaties
• Succession
to
Treaties
o “Clean
slate
rule”
(Art.
16
of
1978
Vienna
Convention
on
the
Succession
of
States
with
Respect
to
Treaties)
–
a
new
state
is
not
bound
to
enforce
treaties
of
the
predecessor
state
o A
new
state
may
agree
to
be
bound
by
the
treaties
made
by
its
predecessor
o Does
not
apply
to
treaties
affecting
boundary
regimes
Cases
Fisheries
Jurisdiction
Case:
United
Kingdom
v.
Iceland
(1973)
• Facts
o Iceland’s
(D)
claim
to
a
12-‐mile
fisheries
limit
was
recognized
by
the
United
Kingdom
(P)
in
1961
in
return
for
Iceland’s
agreement
that
any
dispute
concerning
Icelandic
fisheries
jurisdiction
beyond
the
12-‐mile
limit
be
referred
to
the
International
court
of
Justice.
o Application
was
filed
before
the
ICJ
when
Iceland
proposed
to
extent
its
exclusive
fisheries
jurisdiction
from
12
to
50
miles
around
its
shores
in
1972
• Rule
of
Law
o Termination
of
treaty
requires
result
in
a
radical
transformation
of
the
extent
of
obligations
still
to
be
performed
• Issue
o Is
a
radical
transformation
of
the
extent
of
the
obligation
still
to
be
performed
necessary
to
invoke
termination
of
a
treaty?
o Does
the
change
of
circumstance
claimed
by
Iceland
qualify
as
such?
• Decision
o Yes.
o No.
• Body
o ICJ
Namibia
Case
(1971)
• Facts
o South
Africa
(D)
occupied
Western
Sahara
(Namibia)
under
a
claim
of
right
to
annex
that
territory
and
under
a
claim
that
the
people
of
Namibia
desired
South
African
rule
o S
Africa
was
a
member
state
of
the
United
Nations
and
subject
to
a
UN
mandate
prohibiting
member
states
from
taking
physical
control
of
other
territories
o UNGA
adopted
Resolution
2145
terminating
the
Mandate
for
S
Africa
o UNSC
adopted
Resolution
276
declaring
S
Africa’s
continued
presence
in
Namibia
illegal
and
calling
other
member
states
to
act
accordingly
o ICJ
was
called
upon
to
render
an
advisory
opinion
• Rule
of
Law
o UN
mandates
are
binding
upon
all
member
states
o Violations
or
breaches
result
in
a
legal
obligation
on
the
part
of
the
violator
to
rectify
the
violation
o Other
member
states
are
required
to
recognize
the
conduct
as
a
violation
and
refuse
to
aid
in
such
violation
o The
decisions
and
resolutions
of
the
Security
Council
in
enforcing
such
termination
are
binding
upon
all
Member
States,
regardless
of
how
they
voted
on
the
measure
when
adopted.
• Issue
o Are
UN
mandates
binding
upon
all
member
states?
o Does
violation
of
mandate
require
for
violator
to
rectify
its
violation
and
for
other
members
to
act
accordingly?
• Decision
o Yes.
o Yes.
Member
states
have
assumed
an
obligation
to
keep
intact
and
preserve
the
rights
of
other
states
and
the
people
in
them.
o The
UNGA
found
that
South
Africa
was
in
material
breach
of
the
Mandate
because
of
deliberate
and
persistent
violations
of
it
by
occupying
Namibia
• Body
o ICJ
Danube
Dam
Case:
Hungary
v.
Slovakia
(1998)
• Facts
o In
1977,
Hungary
(P)
and
Czechoslovakia
(D)
signed
a
Treaty
(Budapest
Treaty)
for
the
construction
of
dams
and
other
projects
along
the
Danube
river
that
bordered
both
nations
o Czechoslovakia
began
work
on
damming
the
river
in
its
territory
but
Hungary
stopped
working
on
the
project
(due
to
economic
issues)
o Negotiation
could
not
resolve
the
matter
so
Hungary
terminated
the
treaty
o Czechoslovakia
carried
out
unilateral
measures
(executed
Plan
B)
o Iron
curtain
fell,
their
regimes
changed,
Czechoslovakia
split
into
Czech
Republic
and
Slovakia
o Hungary
claimed
right
to
terminate
treaty
because
of
unilateral
measures
that
resulted
to
diversion
of
Danube
then
submitted
the
case
to
ICJ
o Slovakia
became
a
party
to
the
1977
Treaty
as
successor
to
Czechoslovakia
o
• Rule
of
Law
o “pacta
sunt
servanda”
–
agreements
must
be
kept
• Issue
o Did
Hungary’s
termination
of
the
treaty
violate
international
law?
o Did
Slovakia’s
unilateral
finishing
of
the
project
give
Hungary
the
right
to
terminate
the
treaty?
• Decision
o Yes.
If
a
state
of
necessity
is
found
to
exist,
it
is
not
a
ground
for
the
termination
of
a
treaty,
only
for
exoneration
from
its
responsibility
to
implement
a
treaty
§ Other
changes
of
circumstances
such
as
change
of
political
nature
are
not
seen
as
something
that
would
radically
transform
the
extent
of
the
obligations
still
to
be
performed
in
order
to
accomplish
the
project
§ The
changes
must
have
been
unforeseen
and
grave
o No.
It
was
justified
because
Hungary
did
not
follow
through.
The
violation
of
other
treaty
rues
or
rules
of
general
international
law
may
justify
the
taking
of
certain
measures,
including
countermeasures,
by
the
injured
state,
but
it
does
not
constitute
a
ground
for
termination
under
the
law
of
treaties.
• Body
o ICJ
Goldwater
v.
Carter
(1979)
• Facts
o President
Carter
terminated
a
treaty
(Sino-‐American
Mutual
Defense
Treaty)
with
Taiwan
without
congressional
approval
o President
Carter
wanted
to
transfer
recognition
of
the
One
True
China
to
the
People’s
Republic
of
China
(China)
from
Republic
of
China
(Taiwan),
in
accordance
with
the
One
China
Policy
o No
congressional
action
was
taken
in
retaliation
for
what
President
Carter
did
o Plaintiff:
Sen.
Barry
Goldwater
• Rule
of
Law
o The
Court
does
not
answer
political
questions
• Issue
o Was
Carter’s
action
constitutional?
o Is
this
issue
of
whether
a
President
can
terminate
a
treaty
without
Congressional
approval
a
non-‐justiciable
political
question?
• Decision
o Maybe,
maybe
not.
The
issue
is
not
ripe
because
no
action
was
taken
by
the
Senate.
The
court
has
the
power
to
review
whether
or
not
a
particular
branch
of
government
has
exclusive
decision-‐making
power
over
an
issue.
o Yes.
Whether
or
not
a
President
can
terminate
a
treaty
closely
involves
his
foreign
relations
authority
and
therefore
is
not
reviewable
by
the
Supreme
Court
• Body
o US
Supreme
Court
Maritime
Delimitation
and
Territorial
Questions:
Qatar
v.
Bahrain
(1994)
• Facts
o Qatar
(Plaintiff)
filed
a
claim
to
settle
a
dispute
involving
sovereignty
over
certain
islands
and
rights
over
certain
shoals
and
delimitation
of
a
maritime
boundary
against
Bahrain
(Defendant)
o A
Tripartite
Committee
“for
the
purpose
of
approaching
the
International
Court
of
Justice”
was
formed
by
representatives
of
Qatar,
Bahrain,
and
Saudi
Arabia
o The
Committee
failed
to
produce
an
agreement
on
the
specific
terms
for
submitting
the
dispute
to
the
Court
o The
meetings
culminated
in
“Minutes”
which
reaffirmed
the
process
and
stipulated
that
the
parties
“may”
submit
the
dispute
to
the
ICJ
after
giving
the
Saudi
King
six
months
to
resolve
the
dispute
o The
Court’s
jurisdiction
was
disputed
by
Bahrain
• Rule
of
Law
o An
international
agreement
creating
rights
and
obligations
can
be
constituted
by
the
signatories
to
the
minutes
of
meetings
and
letters
exchanged
• Issue
o Does
ICJ
have
jurisdiction?
o Can
an
international
agreement
be
constituted
by
the
signatories
to
the
minutes
of
meetings
and
letters
exchanged?
• Decision
o YES.
Though
Bahrain
argued
that
the
Minutes
were
only
a
record
of
negotiation
and
could
not
serve
as
a
basis
for
the
ICJ’s
jurisdiction,
both
parties
agreed
that
the
letters
constituted
an
international
agreement
with
binding
force
o YES.
International
agreements
do
not
take
a
single
form
o
• Body
o ICJ
Anglo-‐Iranian
Oil
Co.
Case:
United
Kingdom
v.
Iran
(1952)
• Facts
o BP
(formerly
Anglo-‐Iranian)
signed
a
contract
with
the
Iranian
government
in
1933.
o In
1952,
Iran
nationalized
the
oil
industry,
in
which
BP
and
the
Iranian
government
had
a
conflict.
The
UK
filed
the
case
on
behalf
of
BP.
• Rule
of
Law
o Compulsory
jurisdiction
–
only
applies
to
treaties
between
states
over
signed
treaties
or
conventions
§ Corporations
cannot
be
represented
by
their
own
state
unless
they
were
party
to
a
signed
treaty
between
the
two
states
o Corporations
do
not
have
international
legal
personality
o ICJ
cannot
rule
on
cases
that
are
not
conflicts
between
two
states
over
signed
treaties
• Issue
o Does
ICJ
have
jurisdiction
on
the
case?
§ Iran
says
compulsory
jurisdiction
only
applies
to
treaties
created
after
the
ratification
of
the
declaration.
§ UK
says
the
1933
was
a
double
charter
and
counts
as
a
treaty
• Decision
o The
ICJ
has
no
jurisdiction
over
the
case
because
there
is
no
treaty
between
Iran
and
UK.
o It
does
not
matter
that
BP
was
not
treated
right
based
on
other
treaties
because
UK
was
not
part
of
these
treaties
o UK
was
not
party
to
the
original
treaty,
therefore
ICJ
cannot
have
jurisdiction
under
compulsory
jurisdiction
• Body
o ICJ
CHAPTER
4:
INTERNATIONAL
LAW
AND
MUNICIPAL
LAW
• Two
theories
o Dualism
–
when
international
law
and
municipal
law
conflict,
municipal
law
must
prevail;
there
are
two
separate
systems
of
law
§ Positivist
§ Strong
emphasis
on
SOVEREIGNTY
§ Prevailing
practice
o Monism
–
international
law
and
domestic
law
belong
to
one
system
of
law
§ International
law
>
municipal
law
• Supported
by
Kelsen
(Austrian
jurist,
legal
philosopher,
and
political
philosopher)
• Flowing
from
a
deep
suspicion
of
local
sovereigns
and
from
the
conviction
that
international
law
can
imbue
the
domestic
order
with
a
sense
of
moral
purpose
§ International
law
<
municipal
law
• Municipal
Law
in
International
Law
o local
laws
must
be
adjusted
accordingly
to
accommodate
treaties
o states
cannot
invoke
local
laws
for
terminating
agreements
• International
Law
in
Domestic
Law
o Transformation
–
international
law
must
be
created
as
a
law
by
parliament
o Incorporation
–
law
of
nations
is
adopted
in
its
full
extent
by
the
common
law,
and
held
to
be
part
of
the
law
of
the
land
• Philippines:
dualist
and
incorporation
o Conflict
between
International
Law
and
Domestic
Law:
International
Rule
§ EXCEPTION
FROM
APPLYING
INTERNATIONAL
LAW
AUTOMATICALLY:
the
constitutional
“violation
was
manifest
and
concerned
a
rule
of
its
internal
law
of
fundamental
importance”
(Article
46)
Violation
is
“manifest
if
it
would
be
objectively
evident
to
any
State
§ conducting
itself
in
the
matter
in
accordance
with
normal
practice
and
in
good
faith”
§ If
the
treaty
was
found
unconstitutional,
it
can
be
ignored
domestically
at
the
risk
of
international
repercussions
before
an
international
court
o Conflict
between
International
Law
and
Domestic
Law:
Municipal
rule
§ The
treaty
would
not
be
valid
and
operative
as
domestic
law
§ Dualism:
unconstitutionality
of
a
treaty
is
purely
a
domestic
matter
GENERALLY
RECOGNIZED
PRINCIPLES
OF
LAW
(Galing
lang
sa
notes
ko,
not
sure
if
these
concepts
really
fall
under
this)
• Restitution
–
compensation
for
damages
or
seizing
of
properties
o Chorzow
Factory
Case
• Judicial
Decisions
–
contains
principles
that
can
be
used
as
evidence
in
other
newer
cases
• Common
law
countries
don’t
rely
that
much
on
publicists
• Equity
–
used
of
law
is
silent
• Right
to
self-‐determination
Case
Chorzow
Factory
Case:
Germany
v.
Poland
(1928)
• Facts
o After
a
plebiscite
and
three
uprisings,
the
eastern
part
of
Silesia,
including
Chorzow,
was
separated
from
Germany
and
awarded
to
Poland
o The
company
that
owned
the
nitrogen
factory
argued
to
the
PCIJ
for
restitution
• Rule
of
Law
o A
State
is
held
responsible
for
expropriation
of
alien
property
o A
nation
is
responsible
for
acts
of
government
organs
or
officers
o It
is
a
basic
rule
of
international
law
that
reparation
is
to
be
made
for
violations
of
international
law
• Issue
o Whether
or
not
the
Polish
government
should
be
made
liable
to
make
reparations
to
the
German
government
• Decision
o Germany
was
awarded
compensation
by
Poland
• Body
o PCIJ
JUDICIAL
DECISIONS
AND
TEACHINGS
OF
HIGHLY
QUALIFIED
AND
RECOGNIZED
PUBLICISTS
Cases
Military
and
Paramilitary
Activities
in
and
against
Nicaragua:
Nicaragua
v.
United
States
(1986)
• Facts
o Government
of
President
Somoza
collapsed
after
an
armed
opposition
led
by
FSLN
(Sandinista)
o New
Sandinista
government
faced
armed
opposition
from
supporters
of
former
Somoza
government
and
ex-‐members
of
the
National
Guard
o Nicaragua
accused
the
US
of
planning
and
undertaking
activities
directed
against
Nicaragua
o FDN
and
ARDE
–
armed
opposition
to
new
government;
covertly
supported
by
the
US,
which
they
later
acknowledged
o Nicaragua:
US
was
effectively
in
control
of
the
contras
o US
used
‘inherent
right
of
collective
self-‐defense’
as
excuse
for
its
actions
• Issues
o Did
the
US
breach
customary
international
law
of
not
intervening
in
affairs
of
another
state?
o Of
not
using
force
against
another
state?
o Can
the
military
and
paramilitary
activities
the
US
undertook
be
justified
as
collective
self-‐defense?
o Of
not
violating
the
sovereignty
of
another
state?
• Decision
o Yes
o Yes.
Prohibition
on
the
use
of
force
is
clearly
found
on
Article
2(4)
of
the
UN
Charter.
o No.
Self-‐defense
is
only
available
against
a
use
of
force
that
amounts
to
an
armed
attack.
There
should
also
be
a
request
for
assistance
from
the
victim
state.
o Yes
• Body
o ICJ
Asylum
case:
Colombia
v.
Peru
(1950)
• Facts
o Colombian
ambassador
in
Lima,
Peru
allowed
Victor
Raul
Haya
de
la
Torre,
head
of
the
American
People’s
Revolutionary
Alliance
sanctuary
after
his
faction
lost
a
one-‐day
civil
war
in
Peru
o Colombian
government
granted
him
asylum,
but
Peru
did
not
grant
him
right
of
passage
o Colombia
cited
various
conventions
(Bolivian
Agreement
of
1911
on
Extradition,
Havana
Convention
of
1928
on
Asylum,
Montevideo
Convention
of
1933
on
Political
Asylum,
American
International
Law)
that
they
are
entitled
to
decide
if
asylum
should
be
granted
and
their
unilateral
decision
on
this
was
binding
on
Peru
• Rule
of
Law
o The
burden
of
proving
a
custom
exists
resides
in
the
plaintiff
• Issue
o Is
Peru
obligated
to
grant
right
of
passage
in
accordance
with
Colombia’s
unilateral
granting
of
asylum?
• Decision
o No
such
custom
dictates
that
Peru
should
grant
the
person
right
of
passage.
• Body
o ICJ
CHAPTER
5:
SUBJECTS
OF
INTERNATIONAL
LAW:
STATES
• Subjects
-‐
Those
who
have
international
personality
o Not
all
enjoy
the
same
rights
and
obligations
o States
are
the
predominant
actors
• Objects
–
those
who
indirectly
have
rights
under
or
are
beneficiaries
of
international
law
through
subjects
of
international
law
• States
enjoy
the
fullest
personality
in
international
law
• Montevideo
Convention
of
1933
on
Rights
and
Duties
of
States
o Permanent
population
o Defined
territory
o Government
o Capacity
to
enter
into
relations
with
other
states
• Elements
of
State
o People
or
Population
–
community
of
persons
§ Sufficient
in
number
§ Capable
of
maintaining
the
permanent
existence
of
the
community
§ Held
together
by
a
common
bond
of
law
o Territory
§ Can
be
disputed
§ State
does
not
cease
to
exist
when
it
loses
control
of
its
territory
temporarily
o Government
§ State
does
not
cease
to
exist
in
temporary
absence
of
government
o Sovereignty
o Self-‐determination
§ Two
levels
of
claim
to
self-‐determination
• Establishment
of
new
states
–
the
claim
by
a
group
within
an
established
state
to
break
away
and
form
a
new
entity
• Freedom
from
external
coercion,
or
the
claim
to
overthrow
effective
rules
and
establish
a
new
government
o Right
of
revolution
o Claim
of
the
people
within
an
entity
to
be
given
autonomy
• Recognition
of
States
o Declaratory
theory
–
recognition
is
merely
a
declaration
of
the
existence
of
a
state,
and
that
its
being
a
state
depends
upon
its
possession
of
the
required
elements
and
not
upon
recognition
o Constitutive
theory
–
recognition
is
what
makes
a
state
a
state
• Recognition
of
government
–
means
act
of
acknowledging
the
capacity
of
an
entity
to
exercise
powers
of
government
of
a
state
o Automatic
–
if
change
in
government
is
constitutional
o Sketchy
–
a
new
government
comes
into
existence
through
Extra-‐ constitutional
means
o Tinoco
Arbitration
o Upright
v.
Mercury
Business
Machines
Co.
o Consequences
of
Recognition
or
Non-‐recognition
§ Highly
political
judgment
unlike
recognition
of
states
§ Benefits
of
recognition
• Prestige
• Funding
agencies
and
loans
access
• Access
to
foreign
courts
• Military
and
financial
assistance
• Immunity
from
suit
o Admission
of
government
into
UN
DOES
NOT
mean
recognition
by
all
members,
only
to
the
extent
of
the
activities
of
the
organization
o Termination:
when
another
regime
is
recognized
• Succession
of
states
(see
p.83)
• Fundamental
Rights
of
States
o Independence
–
free
from
the
domination
of
other
states
§ Jurisdiction
over
territory
and
population
§ Right
to
self
defense
§ Right
of
legation
–
right
to
send
and
receive
diplomatic
missions
§ Duty
not
to
interfere
in
the
internal
affairs
of
other
states
o Equality
–
irrespective
of
the
size
or
power
of
the
state
o Peaceful
co-‐existence
§ Mutual
respect
for
each
other’s
territorial
integrity
and
sovereignty
§ Mutual
non-‐aggression
§ Non-‐interference
in
each
other’s
affairs
§ Principle
of
equality
• Some
incomplete
subjects
o Protectorates
–
controls
their
internal
affairs
but
external
affairs
are
controlled
by
foreign
entity
o Federal
state
o Mandated
and
Trust
Territories
–
created
by
League
of
Nations;
replaced
by
Trusteeship
by
the
UN
o Taiwan
–
de
jure
part
of
China
o The
Sovereign
Order
of
Malta
–
has
diplomatic
relations
with
over
40
states
o The
Holy
See
–
no
permanent
population
Cases
Tinoco
Arbitration:
Arbitration
between
Great
Britain
and
Costa
Rica
(1923)
• Facts
o Federico
Tinoco
seized
power
in
Costa
Rica
via
coup
in
1917.
o The
new
government
was
not
recognized
by
the
US
and
the
UK
o Tinoco
retired
after
one
year
and
the
new-‐new
government
nullified
all
contracts
made
by
the
Tinoco
government,
including
an
oil
concession
to
UK
companies
(Central
Costa
Rica
Petroleum
Company
and
Royal
Bank
of
Canada)
and
debts
• Rule
of
Law
o A
government
need
not
conform
to
a
previous
constitution
if
the
government
had
established
itself
and
maintained
a
peaceful
de
facto
administration
and
non-‐recognition
of
the
government
by
other
government
does
not
destroy
the
de
facto
status
of
the
government
o An
illegal
government
may
bind
a
state
to
international
obligations:
international
law
looks
at
the
state,
not
the
government
entity
within
the
state
o Corporations
possess
nationality
and
a
government
can
assert
claims
on
behalf
of
its
subjects
• Issues
o What
was
the
status
of
the
Tinoco
regime
in
international
law?
o Was
UK
estopped
from
pursuing
its
claims
because
it
never
recognized
the
Tinoco
government
either
de
jure
or
defacto?
• Decision
o Tinoco
regime
was
de
facto
government
o UK
is
not
estopped
• Body
o William
H.
Taft
as
arbitrator
Upright
v.
Mercury
Business
Machines
Co.
(1962)
• Facts
o Walter
Upright,
US
Citizen
(Plaintiff)
sues
as
the
assignee
of
a
trade
acceptance
drawn
on
and
accepted
by
defendant
Mercury
in
payment
for
business
typewriters
sold
and
delivered
to
it
by
Polygraph
Export
GmbH.
o Polygraph
is
a
GOCC
of
German
Democratic
Republic
which
is
not
recognized
by
the
US
• Rule
of
Law
o A
foreign
government,
although
not
recognized
by
the
Untied
States
government,
may
nevertheless
have
a
de
facto
existence
which
is
juridically
cognizable
• Issue
o Can
the
Plaintiff
sue
the
company
if
the
US
does
not
recognize
GDR?
• Decision
o Yes.
The
SC
overturned
previous
decision
that
sustained
the
defense.
• Body
o Supreme
Court
of
New
York
CHAPTER
6:
OTHER
SUBJECTS
OF
INTERNATIONAL
LAW
• International
Organizations
–
an
organization
set
up
by
treaty
among
two
or
more
states
o The
constituent
document
of
international
organizations
is
a
treaty;
treaty
includes
all
rights,
obligations,
and
functions
of
an
IO
o Only
states
can
be
members
of
international
organizations
o Possess
international
personality
(Reparations
Case)
§ The
UN
and
its
agents
are
protected
to
the
extent
that
allows
them
to
exercise
their
functions
stated
by
the
Charter
§ The
treaty
CREATED
an
entity
that
is
subject
to
recognition
by
everyone
regardless
of
membership
§ Not
the
same
as
personality
of
states
• “principle
of
speciality”
–
they
are
invested
by
States
with
powers
• “implied”
powers
–
subsidiary
powers
not
expressly
provided
for
in
the
basic
instruments
which
govern
their
activities
o Immunities
§ Can
be
given
immunities
and
privileges
of
international
persons
§ Basis:
the
need
for
effective
exercise
of
their
functions
§ Article
105
of
UN
Charter
-‐
Representatives
of
members
of
the
UN
and
officials
of
the
org
§ Supplemented
by
• General
Convention
on
the
Privileges
and
Immunities
of
the
United
Nations
(1946)
• Convention
and
Privileges
of
Specialized
Agencies
o The
United
Nations
§ “international
constitutional
supremacy
clause”
-‐
If
there
is
conflict
between
obligation
of
member
states
under
the
present
Charter
and
any
other
obligation
under
any
other
international
agreement,
their
obligations
under
the
present
Charter
shall
prevail
§ GA
–
important
and
other
questions
§ SC
–
“primary
responsibility
for
the
maintenance
of
international
peace
and
security”
• Procedural
matters
and
all
other
matters
• Abstain
=
veto
• Insurgents
o Protocol
II
–
first
and
only
international
agreement
exclusively
regulating
the
conduct
of
parties
in
non-‐international
armed
conflict
(1977
Protocol
II
to
the
1949
Geneva
Conventions)
§ Non-‐international
armed
conflict
–
armed
conflicts
which
take
place
in
the
territory
of
a
High
Contracting
Party
between
its
armed
forces
and
dissident
armed
forces
or
other
organized
armed
groups
which,
under
responsible
command,
exercise
such
control
over
a
part
of
its
territory
as
to
enable
them
to
carry
out
sustained
and
concerted
military
operations
and
to
implement
this
Protocol
§ “material
field
of
application”
• under
responsible
command
• exercise
such
control
over
a
part
of
its
territory
as
to
enable
them
to
carry
out
sustained
and
concerted
military
operations
and
to
implement
this
Protocol
• -‐>
“para-‐statal
entities
possessing
definite
if
limited
form
of
international
personality”
o Common
Article
3
–
minimum
humanitarian
protection
should
also
cover
internal
conflicts
• National
Liberation
Movements
o Legitimacy:
goal
of
self-‐determination
o Ultimate
goal
of
controlling
a
definite
territory
is
necessary
to
be
recognized
as
international
subjects
• Individuals
o Obligations
§ Regulation
of
armed
conflicts
§ Rules
on
international
crimes
to
which
individuals
are
subjects
• Crimes
against
humanity
• Genocide
• Aggression
• Terrorism
o When
individual
rights
are
violated,
they
still
have
to
rely
on
the
enforcement
powers
of
states
o Some
treaties
have
provided
for
the
right
of
individuals
to
petition
international
bodies
alleging
that
a
contracting
state
has
violated
some
of
their
human
rights
CHAPTER
7:
TERRITORY:
LAND,
AIR,
OUTER
SPACE
• Modes
of
Acquisition
of
Sovereignty
over
Territory
o Discovery
AND
Occupation
§ Occupation
–
effective,
i.e.
community
with
structure
of
government
§ Acquisition
of
terra
nullius
(territory
which
prior
to
occupation
did
not
belong
to
any
state
or
abandoned)
§ Las
Palmas
(1928)
§ Eastern
Greenland
Case
(1933)
o Prescription
–
You
want
it,
you
occupy
it
for
a
long
time.
§ May
be
negated
by
lack
of
acquiescence
by
the
prior
occupant
o Cession
–
acquisition
of
territory
through
treaty
o Conquest
–
not
allowed
anymore
o Accretion
and
Avulsion
§ Accretion
–
force
of
nature
creates
land
§ Avulsion
–
violent
separation
of
piece
of
land
o NOT
CONTIGUITY
–
proof
only
o Intertemporal
law
–
the
laws
used
in
acquiring
territory
are
international
laws
applicable
in
time
of
acquisition
• Airspace
o Chicago
Convention
on
International
Civil
Aviation
(1944)
(1974
effectivity)
o International
Civil
Aviation
Organization
(ICAO)
o Governing
principles
(see
p.114)
• Outer
Space
o Sovereignty
over
air
space
extends
only
until
where
outer
space
begins
(WDK)
o 1967
Treaty
on
the
Exploration
and
Use
of
Outer
Space
§ Everything
for
the
benefit
of
mankind
and
peace
§ No
nuclear
weapons
please
§ No
military
installations
§ Astronauts
–
envoys
of
mankind;
give
all
necessary
assistance
Cases
The
Island
of
Palmas
(1928)
• Facts
o Palmas
or
Miangas
is
an
island
of
little
economic
value
or
strategic
location
near
Mindanao
o Palmas
is
included
in
the
territory
of
the
Philippines
according
to
Treaty
of
Paris
(1898)
o US
through
Gen.
Leonard
Wood
discovered
that
Netherlands
also
claimed
sovereignty
over
the
island
• Rule
of
Law
o Contiguity
has
no
standing
in
international
law
o Title
by
discovery
is
inchoate
o If
another
sovereign
exercises
sovereignty
continuously
and
the
other
state
does
not
contest
the
claim,
the
claim
by
the
former
is
greater
than
a
title
based
on
mere
discovery
• Issue
o Whether
Palmas
was
part
of
US
or
Netherlands
territory
o Does
a
territory
belong
to
the
first
discoverer
or
to
the
state
that
actually
exercises
sovereignty
over
it?
• Decision
o Palmas
is
part
of
Netherlands
territory
o Netherlands
showed
that
the
Dutch
East
India
Company
had
negotiated
treaties
with
the
local
princes
of
the
island
since
the
17th
century
and
had
exercised
sovereignty,
including
requirement
of
Protestantism
and
the
denial
of
other
nationals
on
the
island
• Body
o Permanent
Court
of
Arbitration
Legal
Status
of
Eastern
Greenland
Case:
Denmark
v.
Norway
(1933)
• Facts
o First
European
settlement
in
Greenland
was
established
by
Norse
colonists
from
Iceland
in
1000
o 1260s
onwards,
the
Norse
colony
in
Greenland
recognized
the
King
of
Norway
as
its
overlord
o When
Norway
was
under
Danish
rule,
official
documents
state
that
Greenland
was
part
of
Norway
o Norse
population
died
out
around
1500
o Denmark
sent
a
new
expedition
and
established
a
new
colony
finding
no
Norse
there
o 1919
–
Denmark
claimed
the
whole
Greenland
with
Norway’s
acquiescence
(Ihlen
Declaration
–
verbal
lang
lol)
o In
1931,
Norway
claimed
Eastern
Greenland
as
part
of
Norway
as
terra
nullius
since
there
was
nothing
there
other
than
Norwegian
whalers
and
trappers
o They
agreed
to
settle
dispute
at
the
PCIJ
• Rule
of
Law
o Effective
control
is
also
relative
to
the
strength
of
claims
• Issue
o Is
a
country
bound
by
the
reply
given
on
its
behalf
by
its
Minister
of
Foreign
Affairs?
o In
the
case
of
two
competing
claims
of
sovereignty
over
the
same
territory,
which
of
the
two
is
stronger?
• Decision
o Yes
o Up
to
1931,
there
was
no
claim
by
any
power
other
than
Denmark
to
the
sovereignty
over
Greenland.
Up
till
1921,
no
power
disputed
Danish
claim
to
sovereignty
• Body
o PCIJ
CHAPTER
8:
TERRITORY:
LAW
OF
THE
SEA
• Convention
on
the
Law
of
the
Sea
of
1982
(LOS)
o Sovereignty
over
the
territorial
sea
extends
to
airspace
as
well
as
to
its
bed
and
subsoil
• Territorial
Sea
–
up
to
12
nautical
miles
beyond
o Overlapping
–
median
line
equidistant
from
the
opposite
baselines
o Baselines:
“normal”
or
“straight”
§ Baseline
–
“the
low-‐water
line
along
the
coast
as
marked
on
large
scale
charts
officially
recognized
by
the
coastal
State”
§ Normal
–
drawn
following
the
definition
of
baseline;
normally
not
straight
• Anglo-‐Norwegian
Fisheries
case:
low-‐water
mark
or
the
mean
between
the
two
tides
§ Straight
–
drawn
connecting
selected
points
on
the
coast
without
appreciable
departure
from
the
general
shape
of
the
coast
• The
ratio
of
the
water
to
the
area
of
the
land,
including
atolls,
is
between
1
to
1
and
9
to
1
• The
length
of
such
baseline
shall
not
exceed
100
nautical
miles,
except
that
up
to
3
percent
of
the
total
number
of
baselines
may
exceed
up
to
125
nautical
miles
• Shall
not
be
drawn
to
and
from
low-‐tide
elevations,
unless
lighthouses
or
similar
installations
which
are
permanently
above
sea
level
have
been
built
on
them
or
where
a
low-‐tide
elevation
is
situated
wholly
or
partially
at
a
distance
not
exceeding
the
breadth
of
the
territorial
sea
of
another
state
• Shall
not
apply
in
such
a
way
as
to
cut
off
from
the
high
seas
of
the
EEZ
the
territorial
sea
of
another
state
• See
p.122
o Sovereignty
over
Territorial
Sea
§ Right
of
innocent
passage
–
applies
to
ships
and
aircraft,
submarines
must
surface
§ Innocent
passage
–
not
prejudicial
to
the
peace,
good
order
or
security
of
the
coastal
state
• See
p.122
• Coastal
states
have
the
unilateral
right
to
verify
the
innocent
character
of
passage
• Straits
–
in
time
of
peace,
states
have
a
right
to
send
their
warships
through
straits
used
for
international
navigation
between
two
parts
of
the
high
seas
without
the
previous
authorization
of
a
coastal
state
provided
the
passage
is
innocent;
no
right
for
coastal
state
to
prohibit
such
passage
in
time
of
peace
• Internal
waters
–
all
waters
(part
of
the
sea,
rivers,
lakes,
etc.)
landwards
from
the
baseline
of
the
territory
• Archipelagic
waters
–
internal
waters
which
had
not
previously
been
considered
as
such
o State
may
designate
sea
lanes
and
air
routes
• Bays
–
considered
internal
waters
o See
p.126
• Contiguous
Zone
–
an
area
not
exceeding
24
nautical
miles
from
the
baseline
o State
exercises
authority
to
the
extent
necessary
to
§ prevent
infringement
of
its
customs,
fiscal,
immigration,
or
sanitation
authority
over
its
territorial
waters
of
territory
§ punish
such
infringement
o Still
high
sea
• Exclusive
economic
zone
or
“patrimonial
sea”
o Not
more
than
200
nautical
miles
beyond
the
baseline
o 2
primary
obligations
§ ensure
the
living
resources
of
the
EEZ
are
not
subjected
to
over-‐ exploitation
-‐>
“maximum
sustainable
yield”
§ promote
the
objective
of
“optimum
utilization”
of
the
living
resources
–
determine
allowable
catch.
If
it
cannot
catch
the
allowable,
it
must
allow
other
states
to
fish
• The
Continental
(Archipelagic)
Shelf
o The
seabed
and
subsoil
of
the
submarine
areas
adjacent
to
the
coastal
state
but
outside
the
territorial
sea,
to
a
depth
of
two
hundred
meters
or,
beyond
that
limit,
to
where
the
depth
allows
exploitation
o The
seabed
and
subsoil
of
areas
adjacent
to
islands
o The
coastal
state
alone
has
the
right
to
explore
and
exploit,
erect
installations
needed,
erect
a
safety
zone
over
its
installations
with
a
radius
of
500
m
• The
Deep
Seabed:
“Common
Heritage
of
Mankind”
o May
not
be
appropriated
(Articles
135
to
153
of
the
1982
Convention)
• Islands
o Above
water
at
high
tide
o Has
EEZ
o Rocks
not
qualified,
must
be
able
to
support
economic
life
• The
High
Seas
–
“all
parts
of
the
sea
that
are
not
included
in
the
territorial
sea
or
in
the
internal
waters
of
a
State”
o Six
freedoms
§ Navigation
§ Overflight
§ Fishing
§ Lay
submarine
cables
and
pipelines
§ Construct
artificial
islands
and
structures
§ Scientific
research
o Flag
state
has
jurisdiction
over
vessels
in
high
seas
o Hot
pursuit
–
must
commence
within
internal
waters,
be
continuous,
stop
when
they
entered
different
territory
§ Mutatis
mutandis
–
the
right
of
hot
pursuit
• Also
applies
to
violations
of
applicable
laws
and
regulations
of
the
coastal
state
in
the
exclusive
economic
zone
or
the
continental
self
including
safety
zones
§ May
be
carried
out
only
by
vessels
marked
for
such
purpose
• Settlement
of
disputes
o Peaceful
means
are
compulsory
o Tribunals
§ International
Tribunal
for
the
Law
of
the
Sea
§ ICJ
§ An
arbitral
tribunal
constituted
under
the
Convention
o Bilateral
agreements
allowed
CHATPER
9:
JURISDICTION
OF
STATES
• Jurisdiction
–
authority
to
affect
legal
interests
• Five
Principles
o Generally
accepted
§ Territoriality
§ Nationality
§ Protective
o Sketchy
§ Universality
§ Passive
Personality
• Territoriality
–
a
state
has
absolute,
but
not
necessarily
exclusive
jurisdiction
within
its
territory
o Water
boundary
§ Thalweg
doctrine
–
if
the
water
between
two
countries
is
navigable,
the
middle
of
the
navigable
part
is
the
boundary
§ If
non-‐navigable,
the
middle
is
the
boundary
o Effects
Doctrine
–
a
country
has
jurisdiction
to
acts
occurring
outside
its
territory
but
has
effects
within
it
§ Subjective
–
crime
commenced
within
the
state
but
completed
or
consummated
abroad
§ Objective
–
commenced
without
the
state
but
consummated
within
its
territory
o Jurisdiction
over
foreign
vessels
§ English
–
norm
today
§ French
• Nationality
–
every
state
has
jurisdiction
over
its
nationals
everywhere
o Effective
nationality
link
§ Preference
to
the
REAL
and
EFFECTIVE
nationality
• Habitual
residence
of
the
individual
• Center
of
interests
• Family
ties
• Participation
in
public
life
• Attachment
shown
by
him
for
a
country
and
inculcated
in
his
children
§ Must
correspond
with
factual
situation
o Law
enacted
by
a
State
for
the
purpose
of
determining
who
are
its
nationals
“shall
be
recognized
by
other
Sates
in
so
far
as
it
is
consistent
with
international
custom
and
the
principles
of
law
generally
recognized
with
regard
to
nationality”
o A
legal
bond
having
as
its
basis
a
social
fact
of
attachment,
a
genuine
connection
of
existence,
interests
and
sentiments,
together
with
the
existence
of
reciprocal
rights
and
duties
o Corporations
–
principal
place
of
business
or
registered
office
§ Owned
or
controlled
by
nationals
o Maritime
vessels
–
state
flag
§ Flags
of
convenience
may
be
challenged
o Stateless
persons
§ De
jure
§ De
facto
• Protective
–
conduct
outside
its
territory
that
threatens
its
security,
as
long
as
that
conduct
is
generally
recognized
as
criminal
by
states
in
the
international
community
• Universality
–
activities
that
are
universally
dangerous
to
states
and
their
subjects,
require
authority
in
all
community
members
to
punish
such
acts
wherever
they
may
occur,
even
absent
a
link
between
the
state
and
the
parties
or
the
acts
in
question
o See
p.157
• Passive
Personality
–
act
committed
outside
its
territory
by
a
person
not
its
national
where
the
victim
of
the
act
was
its
national
o Increasingly
accepted
as
applied
to
terrorist
and
other
organized
attacks
o United
States
V.
Fawaz
Yuniz
• Conflicts
of
Jurisdiction
o The
Balancing
Test
–
compare/balance
interests
with
other
states
§ Yes
to
all
questions
for
jurisdiction
• Was
there
an
actual
or
intended
effect
on
American
foreign
commerce?
• Is
the
effect
sufficiently
large
to
present
a
cognizable
injury
to
the
plaintiffs
and,
therefore,
a
civil
violation
of
the
anti-‐trust
laws?
• Are
the
interests
of,
and
link
to,
the
United
States,
including
effects
on
American
foreign
commerce
sufficiently
strong
compared
to
other
nations?
o International
Comity
–
Even
when
a
state
has
basis
for
exercising
jurisdiction,
it
will
refrain
from
doing
so
if
its
exercise
will
be
unreasonable
§ Link
of
the
activity
to
territory
§ Connection
–
nationality,
residence,
economic
activity
of
the
person
to
be
regulated
§ Character
of
the
activity
§ Existence
of
justified
expectations
that
might
be
protected
or
injured
by
the
regulation
§ Likelihood
of
conflict
with
regulation
by
another
state
o Forum
non
conveniens
–
practical
side
of
the
trial
§ Convenience
of
trial
or
locus
contractus
§ Residence
or
domicile
of
parties
or
locus
solutionis
§ Private
interests
–
mostly
money
and
logistics
§ Public
interests
–
congestion,
desire
to
settle
local
controversies
at
home
• Extradition
–
created
by
treaty
o A
state
may
surrender
a
fugitive
even
if
they
do
not
have
extradition
treaties
if
surrendering
him
is
not
contrary
to
the
state’s
constitution
Cases
Nationality
Principle
Blackmer
v.
United
States
(1932)
• Facts
o Blackmer
is
a
US
citizen
who
resided
in
France
o He
was
served
subpoenas
to
appear
as
a
witness
regarding
the
trial
related
to
the
Teapot
Dome
Scandal
as
well
as
pamasahe
o When
he
failed
to
respond
to
the
subpoenas,
he
was
found
guilty
and
fined
• Rule
of
Law
o There
must
be
due
process
for
the
exercise
of
judicial
jurisdiction
in
personam
o State
has
jurisdiction
to
its
nationals
• Decision
o Guilty.
He
should
have
fulfilled
his
jury
duty
as
citizen.
• Body
o Supreme
Court
of
the
US
Re
Immigration
Act
and
Hanna:
Canada
Supreme
Court
of
British
Columbia
(1957)
• Facts
o A
stateless
man
called
Hanna
wanted
to
get
off
a
stateless
ship
into
Canada
o Canada
wanted
to
deport
him
o He
was
effectively
prisoner
of
the
ship
o Court
decided
he
cannot
be
kept
in
the
ship
• Rule
of
Law
o Rules
on
stateless
persons
–
they
have
human
rights
Territoriality
Principle
Trails
Smelter
Arbitration
–
Convention
for
the
Settlement
of
Difficulties
Arising
from
Operation
of
Smelter
at
Trail
BC
(Ottawa
1935)
• Facts
o In
Trail,
British
Columbia
o Pollution
problem
prompted
Canadians
to
increase
height
of
smoke
stacks
o Higher
smoke
stacks
led
to
pollution
going
to
Washington,
US
• Rule
of
Law
o The
duty
to
protect
other
states
against
harmful
acts
by
individuals
from
within
its
jurisdiction
at
all
times
is
the
responsibility
of
the
state
• Decision
o Canada
(D)
is
responsible
in
international
law
for
the
conduct
of
Trail
Smelter
Company
o Damages
must
be
paid
o Trail
Smelter
must
stop
polluting
Universality
Principle
Attorney-‐General
of
Israel
v.
Eichmann
(1961)
• Facts
o Adolf
Eichmnann
was
a
high
ranking
SS
officer
who
played
a
central
role
in
the
planning
and
implementation
of
the
persecution
of
Jews
in
Germany,
Poland,
Hungary,
and
other
countries
during
WW2.
o Escaped
to
Argentina
o Kidnapped
by
Israeli
agents
and
brought
to
Israel
for
trial
o Argentina
complained
violation
of
sovereignty
o Security
Council
agreed
with
Argentina
and
asked
Israel
to
pay
damages
o Argentina
and
Israel
just
agreed
that
the
issue
is
closed
o Eichmann
was
tried
under
the
Nazi
Collaborators
Law
and
was
punished
by
death
• Rule
of
Law
o International
law
needs
the
judicial
and
legislative
organs
of
every
country
to
give
effect
to
its
criminal
interdictions
and
to
bring
the
criminals
to
trial
o The
jurisdiction
to
try
crimes
under
international
law
is
universal
• Issue
o Was
the
kidnapping
legal,
did
it
violate
territorial
sovereignty
o Should
he
be
held
accountable
for
his
acts
which
were
performed
in
official
function
(Act
of
State)
o Retroactive
effect
of
law?
• Decision
o Yes
(Rule
of
Law)
o Yes,
such
responsibility
does
not
detract
one
iota
from
the
personal
responsibility
of
the
accused
for
his
acts
o No
rule
of
general
customary
international
law
on
retroactivity
• Body
Eichmann
v.
Attorney-‐General
of
Israel
(1962)
• Facts
• Rule
of
Law
o In
the
absence
of
supreme
legislative
authority
and
international
codes,
the
process
of
its
evolution
resembles
that
of
the
common
law
o Crimes
recognized
by
customary
international
law
are
those
which
damage
vital
international
interests,
impair
the
foundations
and
security
of
the
international
community;
violate
universal
moral
values
and
humanitarian
principles
which
are
at
the
root
of
the
systems
of
criminal
law
adopted
by
civilized
nations
o Example:
piracy
jure
gentium
o They
involve
the
perpetration
of
an
intentional
crime
in
the
avoidance
of
which
all
the
nations
of
the
world
are
interested
o Power
is
vested
in
every
State
regardless
of
the
fact
that
the
offence
was
committed
outside
its
territory
by
a
person
who
did
not
belong
to
it,
provided
he
is
in
its
custody
at
the
time
he
is
brought
to
trial
Passive
Personality
Principle
United
States
v.
Fawaz
YUNIS
(1988)
• Facts
o Fawaz
Yunis
and
four
other
men
hijacked
a
Jordanian
Airlines
flight
in
Beirut,
Lebanon
with
two
US
citizens
on
board.
o They
wanted
to
go
to
Tunis
where
a
conference
of
the
Arab
League
was
underway.
o After
a
lengthy
trip,
they
arrived
back
at
Beirut,
held
a
press
conference,
then
blew
up
the
plane
o “Operation
Goldenrod”
by
the
US
aimed
at
arresting
Yunis
was
executed
o He
was
brought
to
Washington,
DC
to
be
tried
o He
was
charged
with
conspiracy,
aircraft
piracy,
and
hostage
taking
• Rule
of
Law
o Universality
Principle
o Protective
Principle
• Issue
o Did
US
have
jurisdiction?
o Was
the
kidnapping
illegal?
• Decision
o Yes.
o No.
Universality.
• Body
o US
District
Court,
DC
Extradition
United
States
v.
Alvarez-‐Machain
(1992)
• Facts
o Humberto
Alvarez
Machain,
a
Mexican
physician,
was
allegedly
involved
in
the
1985
kidnapping,
torture,
and
murder
of
DEA
agent
Enrique
Camarena
Salazar
by
prolonging
his
life
for
torture
and
interrogation
o On
April
2,
1990,
he
was
kidnapped
from
his
medical
office
in
Guadalajara,
Mexico,
to
be
flown
by
private
plane
to
El
Paso,
Texas
where
he
was
arrested
by
DEA
officials
o DC
court
concluded
that
DEA
agents
were
responsible
for
his
kidnapping
but
were
not
personally
involved
with
it
o Claimed
violation
of
extradition
treaty
with
Mexico
• Rule
of
Law
o Forcible
abduction
is
no
sufficient
reason
why
the
party
should
not
answer
when
brought
within
the
jurisdiction
of
the
court
which
has
the
right
to
try
him
for
such
an
offence
o The
treaty
does
not
say
anything
about
forcible
abductions
• Decision
o Kidnapping
is
okay
to
bring
people
to
court,
Universality
• Body
o SCOTUS
Mark
Jimenez
v.
Judge
Puruganan
(2002)
• Facts
o Illegal
contribution
to
Democrats
o Money
laundering
o DOJ
received
the
US
request
for
extradition
from
DFA
• Issue
o Should
he
be
given
notice
before
being
issued
extradition
trial?
• Decision
o No.
That
will
defeat
the
purpose
of
extradition.
It’s
like
a
notice
to
flee.
Besides,
there
will
still
be
fair
trial.
CHAPTER
10:
IMMUNITY
FROM
JURISDICTION
• Immunity
from
jurisdiction
o Sovereign
immunity
o Immunity
of
the
representative
of
states
or
diplomatic
and
consular
immunities
• Immunity
of
head
of
state
o Only
for
a
sitting
head
of
state
• State
immunity
o The
Schooner
Exchange
v.
McFaddon
o Absolute
immunity
of
states
o Development
§ Jure
imperii
(governmental
acts)
§ Jure
gestionis
(trading
and
commercial
acts)
• Diplomatic
and
consular
immunities
–
functional;
based
on
customary
law
• Diplomatic
immunities
–
Vienna
Convention
on
Diplomatic
Relations
o See
p.204
o Functions
of
the
diplomatic
mission
§ Representing
the
State
§ Protecting
interests
of
sending
state
and
nationals
§ Negotiating
with
Government
of
receiving
state
§ Ascertaining
by
all
lawful
means
conditions
and
developments
in
the
receiving
state
and
reporting
them
to
sending
state
§ Promoting
friendly
relations
o Purely
mutual
consent
• Consuls
and
consular
immunities
o Not
concerned
with
political
matters
o Vienna
Convention
on
Consular
Relations
o Issuing
passports
and
visas
o See
p.211
• The
Act
of
State
Doctrine
–
courts
of
one
country
will
not
sit
in
judgment
on
the
acts
of
the
government
of
another,
done
within
its
own
territory
o Alfred
Dunhill
–
limited
the
scope
of
Act
of
State
Doctrine
§ Should
not
be
extended
to
include
the
repudiation
of
a
purely
commercial
obligation
owed
by
a
foreign
sovereign
or
by
one
of
its
commercial
instrumentalities.
Cases
Sovereign
Immunity
of
States
The
Schooner
Exchange
v.
McFaddon
• Facts
o The
ship
was
originally
civilian
owned
by
McFaddon
but
was
seized
by
Napoleon
near
Spain
and
transformed
into
a
warship
Balou
o It
had
to
dock
in
Philadelphia
US
because
of
storm
damages
o The
owner
recognized
it
was
his
ship
• Rule
of
Law
o Doctrine
of
foreign
state
immunity
• Issue
o Does
the
US
court
have
jurisdiction?
• Decision
o Court
did
not
exercise
jurisdiction
because
the
vessel
belonged
to
a
different
state,
therefore
immune,
appealed,
then
appealed
again
(Supreme
Court)
• Body
o SCOTUS
Dralle
v.
Republic
of
Czechoslovakia
(1950)
• Acta
gestionis
• Dralle,
a
German
company,
filed
suit
in
Austria
against
Czechoslovakia
over
trademarks
that
belonged
to
a
nationalized
Czech
subsidiary
of
the
German
company
• State
immunity
cannot
be
applied
because
the
case
was
concerned
with
commercial
activities
United
States
of
America
v.
Hon.
VM
Ruiz
(1985)
• Facts
o US
bases
in
Subic
o Eligio
de
Guzman
&
Co.,
Inc
submitted
bids
for
repair
of
typhoon
damages
o Nalaman
ng
US
na
incompetent
yung
company
so
they
want
injunction
o The
company
sued
• Rule
of
Law
o Contract
was
necessary
in
the
performance
of
treaty
as
states,
therefore
does
not
quality
under
jure
gestionis
Holy
See
v.
The
Hon.
Eriberto
U.
Rosario,
Jr.
(1994)
• Church
received
donation
of
land
for
Nuncio’s
house
• Decided
to
just
sell
the
lot
through
an
agent
to
Ramon
Licup
who
assigned
his
rights
to
respondents
Starbright
Sales
Enterprises
• Squatters
do
not
want
to
leave
so
Church
and
Starbright
dispute
who
should
make
them
leave
• Church
said
Starbright
should
do
it
or
else
they’ll
just
return
earnest
money,
which
they
did
• Church
sold
land
to
Tropicana
Properties
instead
• Starbright
sued
Church
for
annulment
of
sale
• DECISION:
Church
is
immune
because
the
land
was
for
official
purpose
originally
United
States
of
America
v.
Hon
Luis
R.
Reyes
(1994)
• Nelia
Montoya,
respondent,
US
citizen,
employed
as
ID
checker
at
the
US
Navy
Exchange
at
JUSMAG
in
QC
• Bradford,
US
citizen,
is
the
activity
exchange
manager
in
the
JUSMAG
HQ
• Respondent’s
body
and
belongings
were
searched
by
Yong
Kennedy,
also
an
ID
checker
upon
the
instruction
of
the
store
manager,
Ms.
Bradford,
while
she
was
already
at
the
parking
area
in
the
presence
of
the
defendant
and
numerous
curious
onlookers
• She
is
not
covered
by
state
immunity
because
it
happened
in
the
parking
lot,
and
it
was
outside
her
function
• Case
was
about
discrimination
Immunity
of
International
Organizations
Department
of
Foreign
Affairs
v.
National
Labor
Relations
Commission
(1996)
• Magnayi
filed
illegal
dismissal
case
against
ADB
• ADB
enjoys
immunity
in
everything
except
in
specified
cases
of
borrowing
and
guarantee
operations,
as
well
as
the
purchases,
sale
and
underwriting
of
securities
• Bank’s
officers
enjoy
immunity
in
the
exercise
of
their
functions
• ADB
did
not
lose
immunity
because
the
act
was
not
jure
gestionis
• DFA
must
relay
cases
against
immune
personalities
Kapisanan
ng
Manggagawa
at
TACSA
v.
Secretary
of
Labor
and
Employment
and
International
Rice
Research
Institute,
Inc.
• Kapisanan
filed
a
Petition
for
Direct
Certification
Election
with
DOLE
• IRRI
opposed
the
petition
citing
immunity
from
all
civil,
criminal
and
administrative
proceedings
under
PH
laws
• Immunity
was
upheld
• BLR
reversed
the
decision,
allowed
the
election
• Appeared
to
Secretary
of
Labor:
Immunity
UPHELD
• Because
of
INTERNATIONAL
NATURE
of
IRRI
• Different
solution
to
problem
was
used:
better
management-‐employee
relationship
Lasco
et.
Al
v.
United
Nations
Revolving
Fund
for
Natural
Resources
Exploration
(UNRFNRE)
(1995)
• Petitioners
were
fired
from
UNRFNRE,
a
joint
PH-‐UN
project
exploration
project
in
Dinagat
Islands
for
minerals
• Filing
case
for:
illegal
dismissal
and
damages
• Decision:
UN
has
immunity,
other
modes
of
settlement
must
be
pursued
Act
of
State
Doctrine
Underhill
v.
Hernandez
(1987)
• George
Underhill
was
a
US
citizen
who
constructed
the
waterworks
system
for
the
city
of
Bolivar
• Underhill
applied
for
passport
to
leave
the
city
but
was
denied
because
he
was
being
blackmailed
to
operate
his
waterworks
for
the
benefit
of
the
community
and
revolutionary
forces
until
he
was
allowed
to
leave
• Sued
to
recover
damages
caused
by
refusal
to
grant
passport
• Tried
in
New
York
court
• Decision:
act
of
state
doctrine,
no
jurisdiction
Banco
Nacional
de
Cuba
v.
Sabbatino
(1964)
• Farr
was
supposed
to
buy
sugar
from
CAV
but
the
industry
was
nationalized
• He
bought
it
directly
from
Cuban
government
instead
• Upon
receiving
the
sugar,
he
did
not
pay
directly
to
the
government,
but
to
Sabbatino,
CAV’s
representative
• Applying
the
Act
of
State
Doctrine,
SCOTUS
decided
it
will
not
exercise
jurisdiction
even
if
the
seizing
of
the
property
by
another
state
was
committed
within
its
territory
• Banco
Nacional
filed
a
lawsuit
in
the
US
on
behalf
of
the
Cuban
government
against
Sabbatino
to
recover
the
money
• Act
of
State
doctrine
upheld,
which
upheld
the
legality
of
expropriation
by
the
Cuban
government
even
if
it
was
a
violation
of
international
law
• The
state
can
sue,
but
cannot
be
sued
Alfred
Dunhill
of
London,
Inc.
v.
Cuba
(1976)
• Cuba
nationalized
the
cigar
industry
and
seized
assets
• Companies
thought
they
had
to
pay
the
Cuban
government
for
it
• Companies
want
to
get
back
the
money
they
mistakenly
paid
to
the
government
which
they
government
does
not
want
to
return
• SCOTUS
found
the
act
of
not
returning
the
money
does
not
constitute
Act
of
State,
because
it
is
not
acting
as
a
state,
only
as
a
business
entity
that
does
not
want
to
return
other
businesses’
money
• The
burden
of
proving
what
they
did
was
Act
of
State
was
on
the
Cuban
government
Kirkpatrick
Co.
v.
Environmental
Tectonics
Corp.
(1990)
• Kirkpatrick
won
a
bid
con
a
contract
by
bribing
Nigerian
government
officials
• Tectonics
lost
the
bid
as
a
result
• Act
of
State
doctrine
applies,
according
to
lower
court
• For
Tectonics
to
win,
they
must
prove
that
Nigerian
government
officials
accepted
bribes
and
that
that
was
the
reason
for
Kirkpatrick
winning
the
bid
• SCOTUS
says
Act
of
State
Doctrine
does
not
apply.
It
only
applies
when
the
case
turns
on
whether
the
court
gives
legal
effect
to
the
act
of
a
foreign
state
in
its
own
territory
• Whether
the
bribe
took
place
and
influenced
the
outcome
of
the
bidding
or
not
does
not
require
the
court
to
decide
whether
what
the
Nigerian
government
did
was
an
act
of
state.