Chapter 1
THE NATURE OF INTERNATIONAL LAW
What is international law?
The traditional definition of international law is that it is a body of rules and
principles of action which are binding upon civilized states in their relations to one
another. States are the sole actors in this definition and, in the past, public
international law dealt almost exclusively with regulating the relations between
states in diplomatic matters and in the conduct of war. Today, sovereign states
remain as the principal subjects of international law; but they are now joined by
international organizations and even by individuals.' Thus, the Restatement (Third)
of Foreign Relations Law of the United States, which U.S. courts generally
consider as the most authoritative work on the subject, defines international law as
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.”2
Scope of international law.
The expansion of the scope of international law is nothing short of
revolutionary: New subject matters are being added, new subjects of international
law are being recognized, non-Western states are flooding into the community of
nations, political and social principles are changing, international organizations are
assuming new roles. This is being affected by various factors: rapid changes in
technology, the multiplication of the number of states with differing backgrounds
and achieving loose forms of cooperation, fear of war, rising demands for social
reform.
'Subjects of international law will be treated at greater length in Chapter 5.
2
§ 101. Hereinafter to be cited as RESTATEMENT.
2
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
The topics that are covered by international law today include the regulation
of space expeditions, the division of the ocean floor, the protection of human rights,
the management of the international financial system, and the regulation of the
environment. Beyond the primary concern for the preservation of peace, it now
covers all the interests of contemporary international and even domestic life.
Is international law a law?
The question is sometimes asked whether international law is indeed law.
The basic challenge to international law as law is the claim that there can be no law
binding sovereign states. Moreover, there exists no international legislative body.
There is, of course, the General Assembly of the United Nations; but its resolutions
are generally not binding on anybody. There is no international executive. The
Security Council was intended to be that entity but it is often effectively hamstrung
by the veto power. Neither is there a central authority that can make judgments
binding on states. The International Court of Justice can bind states only when
states consent to be bound. Moreover, national officials tend to find justification for
whatever they do. Psychologically too, the allegiance to one’s sovereign state can
be very strong to the point of defying reason. When the chips are down, national
policy or interest is often preferred over international law. Enforcement of
international law is a real problem for several reasons. Frequently, there is no
assured procedure of identifying violation. Even the powers of the UN have
reference largely to lawbreaking that takes the form of an act of aggression or
threat to peace. But there are many violations of international law which are not of
this nature. Most of the time, all the UN can do is censure. For these reasons, it is
said that what is called international law is not law because it is commonly
disregarded.
These objections are based on an exaggerated notion of sovereignty as
embodying an individualist regime. This, however, is not the reality. The reality is
social interdependence and the predominance of the general interest. The reality is
that States are bound by many rules not promulgated by themselves. As Henkin
observes, “It is probably the case that almost all nations observe almost all
principles of international law and almost all of their obligations almost all of the
time.”3
3
Henkin, HOW NATIONS BEHAVE 42.
CHAPTER 1
THE NATURE OF INTERNATIONAL LAW
3
Brierly adds: “The ultimate explanation of the binding force of all law is that man,
whether he is a single individual or whether he is associated with other men in a
state, is constrained, in so far as he is a reasonable being, to believe that order and
not chaos is the governing principle of the world in which he lives.”4
In the ultimate analysis, although the final enforcer is power, fundamentally,
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.
If international law is a law, what is its theoretical basis or what makes it a
law?
Command theory. In the view of John Austin, a renowned legal philosopher,
law consists of commands originating from a sovereign and backed up by threats of
sanction if disobeyed. In this view, international law is not law because it does not
come from a command of a sovereign. Neither treaties nor custom come from a
command of a sovereign. This theory, however, has generally been discredited. The
reality is that nations see international law not as commands but as principles for
free and orderly interaction.
Consensual theory. Under this theory, international law derives its binding
force from the consent of states. Treaties are an expression of consent. Likewise,
custom, as voluntary adherence to common practices, is seen as expression of
consent.5 In reality, however, there are many binding rules which do not derive
from consent.
Natural law theory. The natural law theory posits that law is derived by
reason from the nature of man International law is said to be an application of
natural reason to the nature of the state-person. Although the theory finds little
support now, much of customary law and what are regarded as generally accepted
principles of law are in fact an expression of what traditionally was called natural
law.
Some dissenters, however, see no objective basis for international law. They
see international law as a combination of politics, morality and self-interest hidden
under the smokescreen of legal language.
4
Brierly , THE LAW OF NATIONS 55-56
treaties and custom will be treated in subsequent chapters.
4
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
In the ultimate analysis, however, the best answer is pragmatic.
Fundamentally, there is a general respect for law and also there is concern about the
consequences of defiance either to oneself or to the larger society. International law
is law because it is seen as such by states and other subjects of international law.
Public and private international law.
A distinction should be made between public international law, sometimes
referred to only as international law and which is the subject matter of this book,
and private international law, more commonly called conflict of laws. Public
international law governs the relationships between and among states and also their
relations with international organizations and individual persons. Private
international law is 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.
Brief historical development of international law.
From Ancient law to the League of Nations
What may be called ancient international law governed exchange of
diplomatic emissaries, peace treaties, etc., in the world of ancient Romans and even
earlier. There is evidence of treaties concluded between Jews and Romans, Syrians
and Spartans. The progressive rules of jus gentium, seen as a law “common to all
men,” became the law of the vast Roman empire.
Modem international law began with the birth of nation-states in the
Medieval Age. The governing principles were derived from Roman Law or Canon
Law which in turn drew heavily from natural law. Hugo Grotius, Dutch, is
considered father of modem international law. He authored De Jure Belli ac Pads.
What he called the “law of nations” was later given the name of “international law”
by the British philosopher Jeremy Bentham.
Before Grotius was Alberico Gentili, Oxford Professor of Roman Law (De
Jure Belli) and the Spanish theologian Francisco de Vitoria and the Jesuit
theologian Francisco Suarez; Samuel Pufendorf, German (De Jure Naturae
Gentium); Emmerich de Vattel, Swiss (The Law of Nations). These were generally
natural law people.
CHAPTER 1
THE NATURE OF INTERNATIONAL LAW
5
The positivist approach reinterpreted international law not on the basis of
concepts derived from reason but rather on the basis of what actually happened in
the conflict between states. With the emergence of the notion of sovereignty of
states came the view of law as commands originating from a sovereign and backed
up by threats of sanction if disobeyed. In this view, international law is not law
because it does not come from a command of a sovereign. Neither treaties nor
custom come from a command of a sovereign.
The following are some of the significant milestones in the development of
international law:
(a) The Peace of Westphalia, which ended the Thirty Years War
(1618-1648) and established a treaty based framework for peace cooperation.
(It was at this time that pacta sunt servanda arose.)
(b) Congress of Vienna (1815), which ended the Napoleonic Wars
and created a sophisticated system of multilateral political and economic
cooperation.
(c) Covenant of the League of Nations (1920) which included the
Treaty of Versailles which ended World War I.
In the aftermath of World War I, the victors decided to create an institution
designed to prevent the recurrence of world conflagration. Thus, the League of
Nations was bom. Its membership consisted of 43 states which included the five
British dominions of India, Canada, South Africa, Australia and New Zealand. The
United States did not join.
The League created the Permanent Court of International Justice.
From the end of World War II to the end of the Cold War
The League of Nations failed to prevent World War II. Thus, the formulation
of a new avenue for peace became the preoccupation of the victors. Hence was
founded the United Nations in 1945. This marked the shift of power away from
Europe and the beginning of a truly universal institution. The universalization was
advanced by decolonization which resulted in the expansion of the membership of
the United Nations. New states, carrying a legacy of bitterness against colonial
powers, became members of the UN.
6
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
It was during this period that three major groupings of states arose.
The Western states, although they were not all completely of one mind,
formed one group. Some remained satisfied with the status quo while others were
more open to Third World demands and supported social and legal changes. As to
international legislation, however, they insisted on two points. First, legal
provisions miust'be clear and precise. Second, any substantive rule must be
accompanied by an implementation mechanism that can spot and correct
violations.
Another grouping consisted of the socialist states led by the Soviet Union.
They formed the “socialist camp.” They sought to avert Western intrusion into
domestic affairs even as they sought relatively good relations with the West for the
sake of economic and commercial interchange. They also sought to convert
developing nations to their ideology.
The third group, the developing countries, formed the overwhelming
majority. The group consisted mainly of former colonies suffering from
underdevelopment together with newly industrializing countries such as the
Philippines, Malaysia, Thailand, Singapore, and South Korea who had earned their
independence through armed or political struggle while remaining under the
influence of Western or socialist ideas.
This was the Cold War period which succeeded in maintaining peace
through the balancing of the two super powers, the United States and its allies on
the one hand and the Soviet Union.
The end of the Cold War
The dissolution of the Soviet Union resulted in the end of the Cold War with
the re-emergence of international relations based on multiple sources of power and
not mainly on ideology. Many of the Baltic states were restored to statehood.
Yugoslavia collapsed and fragmented. The newly bom Russian Federation did not
inherit the Soviet Union’s position as a superpower.
At present there is only one super power, the United States, politically and
ideologically leading the western states. The United States acts both as world
policeman (but in an obviously selective manner as dictated by its own interests)
and also as global mediator.
CHAPTER 1
THE NATURE OF INTERNATIONAL LAW
7
Meanwhile, socialist countries are no longer united with some of them
depending on the support of Western states.
For their part, the developing countries seem to have veered away from
ideological orientation and towards market orientation instead and towards fighting
poverty and backwardness.
As for the United Nations, it seems to have declined as an international
agency for the maintenance of peace.
Chapter 2
THE SOURCES OF INTERNATIONAL LAW
What sources are.
The task of ascertaining what the laws are in the domestic sphere is a
relatively simple matter. Domestic laws are found in statute books and in
collections of court decisions. It is an altogether different matter with international
law. In the absence of a centralized legislative, executive and judicial structure,
there is no single body able to legislate and there is no system of courts with
compulsive power to decide what the law is nor is there a centralized repository of
international law. Thus, there is the problem of finding out where the law is. This
problem is exacerbated by the anarchic nature of world affairs and the competing
sovereignties. Nevertheless international law exists and there are “sources” where,
with some effort, the law can be found.
Sources are often classified into formal sources and material sources.
Authors, however, differ in defining these concepts. Formal sources can refer to
the various processes by which rules come into existence. Thus, for instance,
legislation is a formal source of law. So are treaty making and judicial decision
making as well as the practice of states. Material sources, on the other hand, are
not concerned with how rules come into existence but rather with the substance and
content of the obligation. They identify what the obligations are. In this sense, state
practice, UN Resolutions, treaties, judicial decisions and the writings of jurists are
material sources in so far as they identify what the obligations are. They are also
sometimes referred to as “evidence” of international law.
The doctrine of sources lays down conditions for verifying and ascertaining
the existence of legal principles. The conditions are the observable manifestations
of the “wills” of States as revealed in the processes by which norms are formed —
that is, treaty and state prac-
8
9
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW
tice accepted as law. The process of verification is inductive and posi- tivistic. It is
the process of finding what laws the states themselves have created and what laws
they are willing to place themselves under. It is a manifestation of the fact that
international law is characterized by individualism.
It is interesting, however, that the most widely accepted statement of the
“sources” of international law, that is, Article 38(1) of the Statute of the
International Court of Justice, does not speak of sources. Rather, Article 38 is
primarily a directive to the Court on how it should resolve conflicts brought before
it. Article 38 says:
1.
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a.
international conventions, whether general or particular,
establishing rules expressly recognized by contesting states;
b.
as law;
c.
international custom, as evidence of a general practice accepted
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 ex
aequo et bono, if the parties agree thereto.1
Article 38 is a declaration by states that these are the laws under which they
are willing to be bound. Thus, another statement of sources is the Restatement
(Third) of Foreign Relations Law of the United States which says:
1.
A rule of international law is one that has been accepted as such
by the international community of states
a)
customary law;
in
b)
agreement; or
by
the
form
of
international
'Article 59 says: “The decision of the Court has no binding force except between the parties and in
respect to that particular case.”
10
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
c)
by derivation from general principles common to
the major legal systems of the world.
2.
Customary international law results from a general and
consistent practice of states followed by them from a sense of legal
obligation.
3.
International agreements create law for the states parties thereto
and may lead to the creation of customary international law which such
agreements are intended for adherence by states generally and are in fact
widely accepted.
4.
General principles common to the major legal systems, even if
not incorporated or reflected in customary law or international agreements,
may be invoked as supplementary rules of international law where
appropriate.
Briefly, therefore, the “sources” of international law are custom, treaties and
other international agreements, generally recognized principles of law, judicial
decisions and teachings of highly qualified and recognized publicists. We shall
discuss these sources one by one.
Custom or customary law.
Custom or customary international law means “a general and consistent
practice of states followed by them from a sense of legal obligation.” (Restatement)
This statement contains the two basic elements of custom: the material factor, that
is, how states behave, and the psychological or subjective factor, that is, why they
behave the way they do.
The material factor: practice of states or usus
The initial factor for determining the existence of custom is the actual
behavior of states (usus). This includes several elements: duration, consistency, and
generality of the practice of states.
The required duration (diuturnitas) can be either short or long. An example
of customary law that is the result of long, almost immemorial, practice is the rule
affirmed in The Paquete Havana2 on the exemption of fishing vessels from capture
as prize of war.
2
175U.S. 677,687 (1900).
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW
11
We are then brought to the consideration of the question whether, upon the
facts appearing in these records, the fishing smacks were subject to capture by the
armed vessels of the United States during the recent war with Spain.
By an ancient usage among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law, coast fishing vessels, pursuing
their vocation of catching and bringing in fresh fish, have been recognized as
exempt, with their cargoes and crews, from capture as prize of war.
In the North Sea Continental Shelf Cases,3 however, the Court indicated that
a short duration, by itself, will not exclude the possibility of a practice maturing into
custom provided that other conditions are satisfied:
. . . Although the passage of only a short period of time is not
necessarily, or of itself, a bar to the formation of a new rule of
customary international law on the basis of what was purely a conventional rule, an indispensable requirement would be that within the
period in question, short though it might be, State practice, including
that of states whose interests are specially affected, should have been
both extensive and virtually uniform in the sense of the provision
invoked — and should moreover have occurred in such a way as to
show a general recognition that a rule of law or legal obligation is
involved.
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. The basic rule on consistency, that is,
continuity and repetition, was laid down in the Asylum Case (ICJ Reports 1950).
The facts in the case were as follows:
On October 3rd, 1948, a military rebellion broke out in Peru; it
was suppressed the same day. On the following day, a decree was
published charging a political party, the American People’s
Revolutionary Party, with having prepared and directed the rebellion.
The head of the Party, Victor Raul Haya de la Torre, was denounced as
being responsible. With other members of the party, he was prosecuted
on a charge of military rebellion....
3
[1%9] ICJ Rep.
12
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
On January 4th, 1949, the Colombian Ambassador in Lima
informed the Peruvian Government of the asylum granted to Haya de
la Torre, at the same time he asked that a safe-conduct be issued to
enable the refugee to leave the country. On January 14th, he further
stated that the refugee had been qualified as a political refugee. The
Peruvian Government disputed this qualification and refused to grant a
safe-conduct. A diplomatic correspondence ensued which terminated
in the signature, in Lima, on August 31st,
1949, of an Act by which the two Governments agreed to submit the
case to the International Court of Justice.
The decision of the ICJ was against Colombia:
Finally, as regards American international law, Colombia had
not proved the existence, either regionally or locally, of a constant and
uniform practice of unilateral qualification as a right of the State of
refuge and an obligation upon the territorial State. The facts submitted
to the Court disclosed too much contradiction and fluctuation to make
it possible to discern therein a usage peculiar to Latin America and
accepted as law.
It therefore followed that Colombia, as the State granting
asylum, was not competent to qualify the nature of the offence by a
unilateral and definitive decision binding on Peru.
Uniformity and generality of practice need not be complete, but it must be
substantial. In Nicaragua v. United States (ICJ Reports 1986), the Court said that
the practice need not be “in absolute conformity” with the purported customary
rule. It said:
In order to deduce the existence of customary rules, the Court
deems it sufficient that the conduct of states should, in general, be
consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new
rule.
Opinio juris
Once the existence of state practice has been established, it becomes
necessary to determine why states behave the way they do. Do states behave the
way they do because they consider it obligatory to behave thus or do they do it only
as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is
obligatory, is what makes
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW
13
practice an international rule. Without it, practice is not law. ... Even humanitarian
consideration by itself does not constitute opinio juris. As the Nicaragua case again
put it:
... [f]or a new customary rule to be formed, not only must the
acts concerned ‘amount to a settled practice,’ but they must be
accompanied by the opinio juris sive necessitatis. Either the States
taking such action or other States in a position to react to it, must have
behaved so that their conduct is “evidence of a belief that this practice
is rendered obligatory by the existence of a rule of law requiring it.”
The need for such a belief, i.e., the existence of a subjective element, is
implicit in the very notion of the opinio juris sive necessitatis.
It should be noted that it is also possible for customary law to develop which
will bind only several states, or even only two states. But the party claiming it must
prove that it is also binding on the other party. In the Asylum case, this was not
proved. But this was proved in the case of Right of Passage over Indian Territory
(ICJ Reports 1960) where the right of Portugal to pass through Indian territory was
recognized.
Dissenting states; subsequent contrary practice
Would dissenting states be bound by custom? Yes, unless they ha4
consistently objected to it while the custom was merely in the process of formation.
The authority that is usually used for this is the Anglo-Norwegian Fisheries* case
where the ICJ said that a coastline delimitation rule put forward by England “would
appear to be inapplicable as against Norway, in as much as she has always opposed
any attempt to apply it to the Norwegian coast.” Dissent, however, protects only the
dissenter and does not apply to other states. Moreover, a state joining the
international law system for the first time after a practice has become law is bound
by such practice.
It is also possible that after a practice has been accepted as law, contrary
practice might arise. What effect would such contrary practice have? In Fisheries
Jurisdiction Case (Merits)? the opinion was expressed that such contrary practice
can cast doubt on the alleged law. It noted “great uncertainty as to the existing
customary law on account of the conflicting and discordant practice of States.” It
concluded that
4
[1951]
5
[1974]
14
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
the uncertainty had “an unsettling effect on the crystallization of a still evolving
customary law on the subject.” ... It might be added that, over time, if the contrary
practice should gain general acceptance, it might instead become the law.
Evidence of state practice and opinio juris
Having said all of the above, what are the acceptable evidence of state
practice? Various forms of evidence may point to state practice. These can be
treaties, diplomatic correspondence, statements of national leaders and political
advisers, as well as the conduct of states. By themselves, however, they do not
constitute customary law unless characterized by opinio juris.
The existence of opinio juris is a matter of proof. The burden of proving its
existence falls on the state claiming it. In Nicaragua v. United States where one of
the issues was whether the prohibition of the use of force was customary law, the
ICJ said:
It considers that this opinio juris may be deduced from, inter
alia, the attitude of the Parties and of States towards certain General
Assembly resolutions, and particularly Resolution 2625 (XXV)
entitled “Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in Accordance with
the Charter of the United Nations.” Consent to such resolutions is one
of the forms of expression of an opinio juris with regard to the
principle of non-use of force, regarded as a principle of customary
international law, independently of the provisions, especially those of
an institutional kind, to which it is subject on the treaty-law plane of
the Charter.
“Instant custom”
Is there such a thing as “instant custom?” Quite obviously, what is referred to
as “instant custom” is not the product of constant and prolonged practice. Rather it
comes about as a spontaneous activity of a great number of states supporting a
specific line of action. In the after- math of the attack on the Word Trade Center in
New York, a coalition of forces arose in a matter of months supportive of the action
taken by the United States against Osama Bin Laden. At least one writer4 has sug
Antonio Cassese, TERRORISM IS ALSO DISRUPTING SOME CRUCIAL LEGAL CATEGORIES OF INTERNATIONAL LAW, 12 Eur. J. Int’l l, No.
6
5.
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW
15
gested that this united action may have given birth to instant customary law
classifying the attack as an armed attack under Article 51 of the UN Charter
justifying collective self-defense. What was peculiar about this collective action
was that the object of defense was not an attack from a state but from a non-state
organization.
Usus and opinio juris in Humanitarian Law: The Martens Clause
The Martens Clause refers to a paragraph found in the 1899 Hague Peace
Convention. It says: “Until a more complete code of laws of war has been issued,
the High Contracting parties deem it expedient to declare that, in cases not included
in the Regulations adopted by them, the inhabitants and belligerents remain under
the protection and the rule of the principles of the law of nations as they result from
the usages established among civilized peoples, from the laws of humanity, and the
dictates of the public conscience.
This was first inserted by the Russian publicist Fyodor Martens and has
found its way into a number of treaties including the 1949 Vienna Convention and
the First Additional Protocol of 1977. It has been cited by, among others, the ICJ in
the Legality of the Threat or Use of Nuclear Weapons.
What the clause does is to put the “laws of humanity” and the “dictates of
public conscience” on the same level as “usages of states” or usus thus suggesting
that even without practice or usus or at least without consistent practice there can
emerge a principle of law based on laws of humanity and the dictates of public
conscience. In other words, one need not wait for thousands of civilians to be killed
before a ban becomes effective.
Treaties.
Another important source are treaties or international agreements, whether
bilateral or multilateral. Treaties determine the rights and duties of states just as
individual rights are determined by contracts. Their binding force comes from the
voluntary decision of sovereign states to obligate themselves to a mode of behavior.
While treaties are generally binding only on the parties, the number of the
contracting parties and the generality of the acceptance of the rules created by the
treaty can have the effect of creating a universal law
16
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
in much the same way that general practice suffices to create customary law.
The question is sometimes asked whether treaties are law or are merely
obligations which the law says must be carried out. On the basis of this question, a
distinction is made between “contract treaties” or “law making treaties.” The
distinction, perhaps, is not very useful because all treaties must be observed by the
parties under the principle of pacta sunt servanda.
Treaties and custom
Whether or not treaties override custom depends on the intention of the
parties. If the treaty is intended to be declaratory of customary law, it may be seen
as evidence of customary law.
Normally, treaties and custom can be complementary. As seen, for instance,
in Nicaragua v. United States, adherence to treaties can be indicative also of
adherence to practice as opinio juris. What happens, however, when treaty and
custom contradict each other? Different situations may have different solutions.
If a treaty comes later than a particular custom, as between the parties to the
treaty, the treaty should prevail. A treaty manifests a deliberate choice of the parties
and the principle of pacta sunt servanda should be followed. Thus, for instance, in
the Wimbledon Case (PCIJ 1923), although the PCIJ recognized that customary
international law prohibited belligerents from ferrying armaments through a neutral
state, the Court said that Article 380 of the Treaty of Versailles opened the Kiel
Canal to passage “to the vessels of commerce and of war of all nations at peace
with Germany on terms of entire equality.”
The Kiel Canal cut through Germany linking the Baltic and North Sea. The
Court said:
The Court considers that the terms of Article 380 are categorical
and give rise to no doubt. It follows that the canal has ceased to be an
internal and national navigable waterway, the use of which by the
vessels of states other than the riparian state is left entirely to the
discretion of that state, and that it has become an international
waterway intended to provide under treaty guarantee easier access to
the Baltic for the benefit of all nations of the word....
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW
17
However, if a later treaty is contrary to a customary rule that has the status of
jus cogens, custom will prevail. This is because of Article 53 of the Vienna
Convention on the law of Treaties:
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 general international
law is a norm accepted and recognized by the international community
of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general
international law having the same character.
In a situation, where custom develops after a treaty, the rule is not clear. The
logical rule perhaps should be that the later custom, being the expression of a later
will, should prevail. But such an approach would militate against the certainty of
treaties. In practice, however, an attempt is made to keep the treaty alive by efforts
at reconciling a treaty with the developing custom. An example given of this
reconciliation is the Anglo-French Continental Shelf Case (1979). The issue was
the applicability of the equidistance principle in the delimitation of the continental
shelves of the United Kingdom and France. The Court said:
Article 6 ... does not formulate the equidistance principle and
“special circumstances” as two separate rules. The rule there stated in
each of the two cases is a single one, a combined equidis- tancespecial circumstances rule. ...
The Court does not overlook that under Article 6 the equidistance principle ultimately possesses an obligatory force which it
does not have in the same measure under the rules of customary law,
for Article 6 makes the application of the equidistance principle a
matter of treaty obligation for Parties to the Convention. But the
combined character of the equidistance-special circumstances rule
means that the obligation to apply the equidistance principle is always
one qualified by the condition “unless another boundary line is
justified by special circumstances. ...”
Treaties will be treated in greater detail in Chapter 3.
General principles of law recognized by civilized nations.
The third source cited by the Statute are “the general principles of law
recognized by civilized nations.” This is also referred to by the
18
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Restatement as “general principles of law recognized by or common to the world’s
major legal systems.” This has reference not to principles of international law but
to principles of municipal law common to the legal systems of the world. They
may, in a sense, be said to belong to no particular system of law but are evidence
rather of the fundamental unity of law. Most of these principles, however, have
either become part of customary law or have been incorporated into conventional
international law.
It is worth noting that the Restatement avoids the language “civilized
nations.” Its colonial connotation is now unacceptable in the international
community.
The Restatement refers to them as “supplementary rules of international
law.” These may be found in “judicial decisions and the teachings of the most
highly qualified publicists of the various nations” which the Statute refers to as
“subsidiary means for the determination of rules of law.”
An example would be the 1928 Chorzow Factory case7 where the
Permanent Court declared that “it is a general conception of law that every
violation of an engagement involves an obligation to make reparation.” Another
example would be the affirmation that private rights acquired under one regime
does not cease upon the change of government. The principle of estoppel is yet
another example. Other examples can be given.
The affirmation of general principles of law found in domestic systems as a
source of international law makes up for the fact that there is no international
legislative system. The insertion of this provision in Article 38(1) thus plugs some
of the gaps in the existing international law system. Barcelona Traction Case (ICJ
1964) adverted to this purpose when it said:
If the Court were to decide the case in disregard of the relevant
institutions of municipal law, it would without justification, invite
serious legal difficulties. It would lose touch with reality....
It is to rules generally accepted by municipal systems,... and not to the
municipal law of a particular State, that international law refers.
7
P.C J J, Ser. A, No. 9.
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW
19
More will be said in Chapter 4 on the relation between international law and
municipal law.
Judicial decisions.
Article 38 of the Statute directs the Court to apply judicial decisions as
subsidiary means for the determination of the rules of law. But this is made subject
to Article 59 which says that “the decisions of the court have no binding force
except between the parties and in respect of that particular case.” Hence, such
decisions do not constitute stare decisis. However, the decisions of the ICJ are not
only regarded as highly persuasive in international law circles; they have also
contributed to the formulation of principles that have become international law.
Later in this book it will be seen that the ICJ is the source of principles recognizing
the international personality of international organizations, the doctrine on “genuine
link” between a person and a state for purposes of jurisdiction, and the straight
baseline method in drawing baselines for archipelagos. Similarly, arbitral decisions
have been instrumental on the formation of international law principles.
The teachings of highly qualified writers and “Publicists.”
In many cases of first impression, the only authorities that can be cited are
writers. The extent to which they are referred to depends on the tradition of the
court or of individual judges. In common law jurisdictions, there is reluctance to
use them, more so in the US than in Britain. In civil law jurisdictions, there is more
ready reference to writers. The ICJ is generally reluctant to refer to writers but they
are often taken into consideration.
“Publicists” are institutions which write on international law. They also play
a role. The more significant ones are: The International Law Commission, an organ
of the U.N.; the Institut de Droit International, the International Law Association, a
multinational body; the (Revised) Restatement of Foreign Relations Law of the
United States; and the annual publication of the Hague Academy of International
Law. It should be noted, however, that these institutions are generally government
sponsored; hence, they bear within themselves a potential for national bias.
20
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Equity.
The Permanent Court of Justice had occasion to use equity as a source of law
in the case of Diversion of Water from the Meuse (Netherlands v. Belgium).
Netherlands had complained that certain canals constructed by Belgium were in
violation of an agreement in that the construction would alter the water level and
rate of flow of the Meuse River. The Court rejected the Netherlands claim and a
Belgian counterclaim based on the construction of a lock by the Netherlands at an
earlier time. Judge Hudson, in an individual concurring opinion said:
It would seem to be an important principle of equity that where
two parties have assumed an identical or a reciprocal obligation, one
party which is engaged in a continuing non-performance of that
obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party. The principle finds
expression in the so-called maxims of equity which exercised great
influence in the creative period of the development of the AngloAmerican law. Some of these maxims are, “Equality is equity”; “He
who seeks equity must do equity.” It is in line with such maxims that
“a court of equity refuses relief to a plaintiff whose conduct in regard
to the subject-matter of the litigation has been improper.” Halsbury’s LAWS
OF ENGLAND (2nd Ed., 1934), p.
87. A very similar principle was received into Roman Law. The
obligations of a vendor and a vendee being concurrent, “neither could
compel the other to perform unless he had done, or tendered, his own
part.”
Judge Hudson justified his use of equity thus:
The Court has not been expressly authorized by its Statute to
apply equity as distinguished from law. Nor, indeed, does the Statute
expressly direct its application of international law, though as has been
said on several occasions the Court is “a tribunal of international law.”
Series A, No. 7, p. 19; Series A, Nos. 20/21, p.
124. Article 38 of the Statute expressly directs the application of
“general principles of law recognized by civilized nations,” and in
more than one nation principles of equity have an established place in
the legal system. The Court’s recognition of equity as a part of
international law is in no way restricted by the special power conferred
upon it “to decide a case ex aequo et bono, if the parties agree
thereto.” [Citations omitted.] It must be concluded, therefore, that
under Article 38 of the Statute, if not independently of that Article, the
Court has some freedom to consider principles of equity as part of the
international law which it must apply.
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THE SOURCES OF INTERNATIONAL LAW
21
Equity, when accepted, is an instrument whereby conventional or customary
law may be supplemented or modified in order to achieve justice. It has both a
procedural and substantive aspect. Procedurally, it means a mandate given to a
judge to exercise discretion in order to achieve a determination that is more
equitable and fair. Different kinds of equity are distinguished: intra legem (within
the law), that is, the law is adapted to the facts of the case; praeter legem (beyond
the law), that is, it is used to fill the gaps within the law; and contra legem (against
the law), that is, a refusal to apply the law which is seen as unjust. Obviously, this
can be an area of great controversy.
Other supplementary evidence.
UN Resolutions
Declarations of legal principles and Resolutions by the United Nations are
generally considered merely recommendatory. But if they are supported by all the
states, they are an expression of opinio juris communis. But a growing number of
weaker nations, who have a very substantial vote, feel that U.N. Resolutions should
have the force of law. Resolutions can also be a reflection of what has become
customary law.
“Soft Law"
Not included among the sources is what a growing literature refers to as “soft
law.” Others prefer to call this category “non-treaty agreements.” They are
international agreements not concluded as treaties and therefore not covered by the
Vienna Convention on the Law of Treaties.
Other sources of soft law are administrative rules which guide the practice of
states in relation to international organizations. These are mostly administrative
procedures that are carried out with varying degrees of consistency and uniformity
that may eventually ripen into customary law or become formalized later on in
treaties.
Soft law plays an important role in international relations because often
states prefer non-treaty obligations as a simpler and more flexible foundation for
their future relations. The difference lies mainly in the wish of the parties to model
their relationship in a way that excludes the application of treaty or customary law
on the consequences of a breach of obligations.
Chapter 3 THE LAW OF TREATIES
Treaties can assume various names. They can be conventions, pacts,
covenants, charters, protocols, concordat, modus vivendi, etc. They represent the
most deliberate form of commitment through which governments cooperate with
one another. The generic term that is used is international agreements. In the
absence of an international legislative body, international agreements are a
convenient tool through which states are able to project common expectations.
The law on treaties is found in the 1969 Vienna Convention on the Law of
Treaties. It governs treaties between states. It entered into force in January 1980.
While the document is not retroactive in effect, it does contain customary law
precepts antedating 1969.
A Convention on the Law of Treaties Between States and International
Organizations or Between International Organizations was adopted on March
26,1986. It should enter into force 30 days after the 35th ratification or accession of
states.
Definition of treaties.
The Vienna Convention defines a treaty as “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.” The Vienna Convention applies to
international agreements that satisfy the Convention’s definition, specifically that
they be in writing and reflective of the intention of the parties to be bound, and
governed by international law.
While treaties are generally in written form, there are writers who hold that
even an oral agreement can be binding. However, only writ
22
CHAPTER 3
THE LAW OF TREATIES
23
ten agreements that are new, come under the provisions of the Vienna Convention.
No particular form is prescribed. Thus for instance, in Qatar v. Bahrain,' the
exchange of notes between the two heads of state was considered an international
agreement.
QUATAR V. BAHRAIN ICJ 1994
The Parties agree that the exchanges of letters of December
1987 constitute an international agreement with binding force in their
mutual relations. Bahrain, however, maintains that the Minutes of 25
December 1990 were no more than a simple record of negotiations,
similar in nature to the Minutes of the Tripartite Committee; that
accordingly they did not rank as an international agreement and could
not, therefore, serve as a basis for the jurisdiction of the Court.
The Court would observe, in the first place, that international
agreements may take a number of forms and be given a diversity of
names. Article 2, paragraph 1 of the Vienna Convention on the Law of
Treaties of 23 May 1969 provides that for the purposes of that
Convention, ‘treaty’ means 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,”
Furthermore, as the Court said, in a case concerning a joint
communique, “it knows of no rule of international law which might
preclude a joint communique from constituting an international
agreement to submit a dispute to arbitration or judicial settlement”
(Aegean Sea Continental Shelf; l.CJ. Reports IY78, p. 39, para. 96).
In order to ascertain whether an agreement of that kind has been
concluded, “the Court must have regard above all to its actual terms
and to the particular circumstances in which it was drawn up.” (ibid.)
The 1990 Minutes refer to the consultations between the two
Foreign Ministers of Bahrain and Qatar, in the presence of the For-
'[1994] ICJ Rep.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
eign Minister of Saudi Arabia, and state what had been “agreed”
between the Parties. In paragraph 1, the commitments previously
entered into are reaffirmed (which includes, at the least, the agreement
constituted by the exchanges of letters of December 1987). In
paragraph 2, the Minutes provide for the good offices of the King of
Saudi Arabia to continue until May 1991, and exclude the submission
of the dispute to the Court prior thereto. The circumstances are
addressed under which the dispute may subsequently be submitted to
the Court. Qatar’s acceptance of the Bahraini formula is placed on
record. The Minutes provide that the Saudi good offices are to
continue while the case is pending before the Court, and go on to say
that, if a compromise agreement is reached during that time, the case is
to be withdrawn.
Thus, the 1990 Minutes include a reaffirmation of obligations
previously entered into; they entrust King Fahd with the task of
attempting to find a solution to the dispute during a period of six
months; and lastly, they address the circumstances under which the
Court could be seised after May 1991.
Accordingly, and contrary to the contentions of Bahrain, the
Minutes are not a simple record of a meeting, similar to those drawn
up within the framework of the Tripartite Committee; they do not
merely give an account of discussions and summarize points of
agreement and disagreement. They enumerate the commitments to
which the Parties have consented. They thus create rights and
obligations in international law for the Parties. They constitute an
international agreement.
Bahrain, however, maintains that the signatories of the Minutes
never intended to conclude an agreement of this kind. It submitted a
statement made by the Foreign Minister of Bahrain and dated 21 May
1992, in which the States that “at no time did I consider that in signing
the Minutes I was committing Bahrain to a legally binding
agreement.” He goes on to say that, according to the Constitution of
Bahrain, “treaties ‘concerning the territory of the State’ can come into
effect only after their positive enactment as a law.” The Minister
indicates that he would therefore not have been permitted to sign an
international agreement taking effect at the time of the signature. He
was aware of that situation, and was prepared to subscribe to a
statement recording a political understanding, but not to sign a legally
binding agreement.
The Court does not find it necessary to consider what might
have been the intentions of the Foreign Minister of Bahrain or,
CHAPTER 3
THE LAW OF TREATIES
25
for that matter, those of the Foreign Minister of Qatar. The two
Ministers signed a text recording commitments accepted by their
Governments, some of which were to be given immediate application.
Having signed such a text, the Foreign Minister of Bahrain is not in a
position subsequently to say that he intended to subscribe only to a
“statement recording a political understanding,” and not to an
international agreement.
The Court concludes that the Minutes of 25 December 1990,
like the exchanges of letters of December 1987, constitute an international agreement creating rights and obligations for the Parties.
Similar was the case of Norway v. Denmark} The case involved a dispute
between Denmark and Norway over sovereignty in Eastern Greenland. In the
course of negotiations, Denmark had offered certain concessions important for
Norway for the purpose of persuading Norway not to obstruct Danish plans in
regard to Greenland. In reply, the Norwegian Minister accepted the offer: “I told the
Danish Minister today that the Norwegian Government would not make any
difficulty in the settlement of this question.” The Court found this declaration sufficient to bind the Norwegian government.
In fact, even a unilateral declaration concerning legal or factual situations
may create legal obligations. This was what happened in Nuclear Test Cases:
Australia v. France, New Zealand v. France,3 France was a signatory to the
Nuclear Test Ban Treaty and thus continued to conduct tests in the South Pacific
until 1973. The tests conducted in 1972 and 1973 led to the filing of protests by
Australia and New Zealand. The case, however, was taken off the Court’s list
without a decision when France announced by a series of unilateral announcements
that it would conduct no further tests after 1973. The Court nevertheless
commented on the legal significance of these announcements saying:
It is well-recognized that declarations made by way of unilateral
acts concerning legal or factual situations, may have the effect of
creating legal obligations. Declarations of this kind may be, and often
are, very specific. When it is the intention of the State making the
declaration that it should become bound according to
2
[1933] P.C.IJ. Ser.
3
[ 1974] ICJ Rep.
26
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
its terms, that intention confers on the declaration the character of a
legal undertaking, the State being thenceforth legally required to
follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be
bound, even though not made within the context of international
negotiations, is binding....
The Court added:
In announcing that the 1974 series of atmospheric tests would
be the last, the French Government conveyed to the world at large ...
its intention to terminate these tests. It was bound to assume that other
States might take note of these statements and rely on their being
effective. The validity of these statements and their legal consequences
must be considered within the general framework of the security of
international intercourse, and the confidence and trust which are so
essential in the relations among States.
Two characteristics the Court found which convinced it that a binding
obligation had been incurred. First, the commitment was very specific; second,
there was a clear intent to be bound.
This, however, did not prevent France from conducting nuclear tests in the
South Pacific. After having conducted six nuclear tests, France responded to
worldwide outrage and stopped the testing at six in 1996 rather than the originally
planned eight.
Moreover, care in attributing binding effect to a unilateral declaration was
expressed in a case involving the Trade Act of 1974 between the European and the
USA.4
7.118 Attributing international legal significance to unilateral
statements made by a State should not be done lightly and should be
subject to strict conditions. Although the legal effects we are ascribing
to the US statements made to the DSB [Dispute Settlement Body]
through this Panel are of a more narrow and limited nature and reach
compared to other internationally relevant instances in which legal
effect was given to unilateral declarations, we have conditioned even
these limited effects on the fulfillment
♦CASE CONCERNING SECTIONS 301-310 OF THE TRADE ACT OF 1974 (EUROPEAN UNION
v. USA, 1999).
CHAPTER 3
THE LAW OF TREATIES
27
of the most stringent criteria. A sovereign State should normally not
find itself legally affected on the international plane by the casual
statement of any of the numerous representative speaking on its behalf
in today’s highly interactive and inter-dependent world nor by a
representation made in the heat of legal argument on a State’s behalf.
This, however, is very far from the case before us.
7.121 The statements made by the US before this Panel were a
reflection of official US policy, intended to express US understanding
of its international obligations as incorporated in domestic US law.
The statements did not represent a new US policy or undertaking but
the bringing of a pre-existing US of a pre-existing US policy and
undertaking made in a domestic setting into an international forum.
Function of treaties.
Treaties have many functions. They are sources of international law, they
serve as the charter of international organizations, they are used to transfer territory,
regulate commercial relations, settle disputes, protect human rights, guarantee
investments, etc.
The different kinds of treaties may be classified from the standpoint of their
relevance as source of international law.
The first are multilateral treaties open to all states of the world. They create
norms which are the basis for a general rule of law. They are either codification
treaties or “law-making treaties” or they may have the character of both.
Another category includes treaties that create a collaborative mechanism.
These can be of universal scope {e.g., regulation of allocation of radio frequencies)
or regional (e.gfishing agreements). They operate through the organs of the
different states.
The third and largest category of treaties are bilateral treaties. Many of these
are in the nature of contractual agreements which create shared expectations such as
trade agreements of various forms. They are sometimes called “contract treaties.”
While treaties are generally binding only on the parties, the number of the
contracting parties and the generality of the acceptance of specific rules created by
the treaty can have the effect of creating a
28
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
universal law in much the same way that general practice suffices to create
customary law.
The making of treaties.
Negotiation Bilateral treaties, and multilateral treaties among a small
number, generally originate from the foreign ministries. Negotiation is done
through foreign ministries. Larger multilateral treaties are negotiated in diplomatic
conferences which are run like a legislative body. Power to negotiate The
negotiators must possess powers to negotiate. An act relating to the conclusion of a
treaty by one who has no proper authorization has no legal effect unless confirmed
by his state:
Article 7. Full powers.
1. A person is considered as representing a State for the
purpose of adopting or authenticating the text of a treaty or for the
purpose of expressing the consent of the State to be bound by a treaty
if:
(a)
he produces appropriate full powers; or
(b) it appears from the practice of the States concerned
or from other circumstances that their intention was to consider
that person as representing the State for such purposes and to
dispense with full powers.
2. In virtue of their functions and without having to produce
full powers, the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts
relating to the conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of
adopting the text of a treaty between the accrediting State and
the State to which they are accredited;
(c) representatives accredited by States to an international conference or to an international organization or one of
its organs, for the purpose of adopting the text of a treaty in that
conference, organization or organ.
CHAPTER 3
THE LAW OF TREATIES
29
Authentication of text
Negotiations conclude with the signing of the document. The signatures
serve as authentication of the document.
Article 9. Adoption of the text:
1.
The adoption of the text of a treaty takes place by the
consent of all the States participating in its drawing up except as
provided in paragraph 2.
2.
The adoption of the text of a treaty at an international
conference takes place by the vote of two-thirds of the States present
and voting, unless by the same majority they shall decide to apply a
different rule.
Article 10. Authentication of the text:
The text of a treaty is established as authentic and definitive:
(a) by such procedure as may be provided for in the text or
agreed upon by the States participating in its drawing up; or
(b) failing such procedure, 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.
The authentication of a treaty makes the text authoritative and
definitive. It is necessary so that the states will know definitively the
contents of the text and avoid any misunderstanding as to the terms.
Consent to be bound
Once the document has been signed, there are stages which follow which
culminate in making the document binding. The most important step is the consent
to be bound. There are various ways by which consent to be bound is expressed:
Article 11. Means of expressing consent to be bound by a treaty:
The consent of a State to be bound by a treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other means if so agreed.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Article 12. Consent to be bound by a treaty expressed by
signature:
1.
The consent of a State to be bound by a treaty is expressed by the signature of its representative when:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were
agreed that signature should have that effect; or
(c) 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.
2.
For the purposes of paragraph 1:
(a) the initialing of a text constitutes a signature of the
treaty when it is established that the negotiating States so
agreed; (b) the signature and referendum of a treaty by a
representative, if confirmed by his State, constitutes a full
signature of the treaty.
Article 13. Consent to be bound by a treaty expressed by an
exchange of instruments constituting a treaty:
The consent of States to be bound by a treaty constituted by
instruments exchanged between them is expressed by that exchange
when:
(a) the instruments provide that their exchange shall have
that effect; or (b) it is otherwise established that those States were
agreed that the exchange of instruments should have that effect, xxx
Article 14. Consent to be bound by a treaty expressed by
ratification, acceptance or approval:
1.
The consent of a State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to
be expressed by means of ratification; (b) it is otherwise established
that the negotiating States were agreed that ratification should be
required; (c) the representative of the State has signed the treaty
subject to ratification; or (d) the intention of the State to sign the treaty
subject to ratification appears from the full powers of its representative
or was expressed during the negotiation.
2.
The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those
which apply to ratification.
CHAPTER 3
THE LAW OF TREATIES
31
The manner of ratification differs from state to state. In the Philippines, it is
governed by Article VII, Section 21 of the Constitution. But between signature and
ratification a state is required by Article 18(a) not to engage in acts which can
defeat the purpose of the treaty.
Ratification is next followed by either exchange of ratification, in bilateral
treaties, or, in multilateral treaties, deposit of ratification:
Article 16. Exchange or deposit of instruments of ratification,
acceptance, approval or accession:
Unless the treaty otherwise provides, instruments of ratification,
acceptance, approval or accession establish the consent of a State to be
bound by a treaty upon:
(a) their exchange between the contracting States; (b) their
deposit with the depositary; or (c) their notification to the contracting
States or to the depositary, if so agreed.
Article 17 Consent to be bound by part of a treaty and choice of
differing provisions:
1.
Without prejudice to Articles 19 to 23, the consent of a
State to be bound by part of a treaty is effective only if the treaty so
permits or the other contracting States so agree.
2.
The consent of a State to be bound by a treaty which
permits a choice between differing provisions is effective only if it is
made clear to which of the provisions the consent relates.
Accession to a treaty
States which did not participate in the initial negotiation may also express
their consent to be bound by “accession.” Article 15 of the Convention says:
The consent of a State to be bound by a treaty is expressed by
accession when:
(a) the treaty provides that such consent may be expressed by
that State by means of accession;
(b) it is otherwise established that the negotiating States were
agreed that such consent may be expressed by that State by means of
accession; or
(c) all the parties have subsequently agreed that such consent
may be expressed by that State by means of accession.
32
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Reservations
In deference to the sovereignty of states, the Vienna Convention allows for
“reservations.” Article 2 defines reservations as “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.” In this regard,
therefore, treaties are different from statutes. Statutes must necessarily apply to all.
Reservations, however, are different from “interpretative declarations” which
are not meant to be a derogation from the treaty but an expression of how a state
understands its adoption of the treaty.
The rules on reservations are found in Articles 19 to 23:
Article 19. Formulation of reservations.
A State may, when signing, ratifying, accepting, approving or
acceding to a treaty, formulate 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; or (c) in cases not falling under
sub-paragraphs (a) and (b), the reservation is incompatible with the
object and purpose of the treaty.
Article 20. Acceptance of and objection to reservations
1.
A reservation expressly authorized by a treaty does not
require any subsequent acceptance by the other contracting States
unless the treaty so provides.
2.
When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an
essential condition of the consent of each one to be bound by the
treaty, a reservation requires acceptance by all the parties.
3.
When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation
requires the acceptance of the competent organ of that organization.
4.
In cases not falling under the preceding paragraphs and
unless the treaty otherwise provides:
(a)
acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty
CHAPTER 3
THE LAW OF TREATIES
in relation to that other State if or when the treaty is in force for
those States;
(b) an objection by another contracting State to a
reservation does not preclude the entry into force of the treaty as
between the objecting and reserving States unless a contrary
intention is definitely expressed by the objecting State;
(c) an act expressing a State’s 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.
5.
For the purposes of paragraphs 2 and 4 and unless the
treaty otherwise provides, a reservation is considered to have been
accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of
the reservation or by the date on which it expressed its consent to be
bound by the treaty, whichever is later.
Article 21. Legal effects of reservations and of objections to
reservations:
1.
A reservation established with regard to another party in
accordance with Articles 19,20 and 23:
(a) modifies for the reserving State in its relations with
that other party the provisions of the treaty to which the
reservation relates to the extent of the reservation; and
(b) modifies those provisions to the same extent for
that other party in its relations with the reserving State.
2.
The reservation does not modify the provisions of the
treaty for the other parties to the treaty inter se.
3.
When a State objecting to a reservation has not opposed
the entry into force of the treaty between itself and the reserving State,
the provisions to which the reservation relates do not apply as between
the two States to the extent of the reservation.
Article 22. Withdrawal of reservations and of objections to
reservations:
1.
Unless the treaty otherwise provides, a reservation may
be withdrawn at any time and the consent of a State which has
accepted the reservation is not required for its withdrawal.
34
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
2.
Unless the treaty otherwise provides, an objection to a
reservation may be withdrawn at any time.
3.
agreed:
Unless the treaty otherwise provides, or it is otherwise
(a) the withdrawal of a reservation becomes operative in
relation to another contracting State only when notice of it has
been received by that State; (b) the withdrawal of an objection to
a reservation becomes operative only when notice of it has been
received by the State which formulated the reservation.
Article 23. Procedure regarding reservations:
1.
A reservation, an express acceptance of a reservation and
an objection to a reservation must be formulated in writing and
communicated to the contracting States and other States entitled to
become parties to the treaty.
2.
If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally
confirmed by the reserving State when expressing its consent to be
bound by the treaty. In such a case the reservation shall be considered
as having been made on the date of its confirmation.
3.
An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not
itself require confirmation.
4.
The withdrawal of a reservation or of an objection to a
reservation must be formulated in writing.
A proliferation of reservations in multilateral treaties can very well defeat the
purpose of a treaty. In bilateral treaties, a reservation by one party means a rejection
of the treaty and necessitates re-negotiation. Reservations, therefore, are meant only
for multilateral treaties.
Must a reservation be consented to by all parties for it to be effective? This
question was answered by the ICJ in its advisory opinion in Reservations to the
Genocide Convention (ICJ Reports 1951) saying, by seven votes to five, that “a
state which has made and maintained a reservation which has been objected to by
one or more parties to the Convention but not by others, can be regarded as a party
to the Convention if the reservation is compatible with the object and purpose of the
Convention.” The Court added that compatibility could be decided by
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35
states individually since “if a party to the Convention objects to a reservation which
it considers incompatible with the object and purpose of the Convention, it can
consider that the reserving state is not a party to the Convention.” Under this view, it
is possible for different legal relationships to arise among parties to the same treaty.
This view some see as reflected in Article 19, supra, of the Vienna Convention.
The Philippines and the 1982 Convention on the Law of the Sea
In this connection, it should be noted that the provision on “archipelagic
waters” found in the 1982 Convention on the Law of the Sea conflicts with the
Philippine claim in Article I of the Constitution that the waters connecting the
islands, irrespective of their breadth and dimension, are “internal waters.” The
Philippine government is clearly aware of these possible conflicts. Hence, upon its
ratification of the Convention on the Law of the Sea on August 5,1984, it added the
following reservation:5
1.
The signing of the Convention by the Government of the
Republic of the Philippines shall not in any manner impair or prejudice the
sovereign rights of the Republic of the Philippines under and arising from the
Constitution of the Philippines;
2.
Such signing shall not in any manner affect the sovereign rights
of the Republic of the Philippines as successor to the United States of
America, under and arising out of the Treaty of Paris between Spain and the
United States of America of December 10, 1988, and the Treaty of
Washington between the United States of America and Great Britain of
January 2,1930;
3.
uch signing shall not diminish or in any manner affect the rights and
obligations of the Contracting Parties under the Mutual Defense Treaty
between the Philippines and the United States of America of August 30,1951,
and its related interpretative instruments; nor those under any pertinent
bilateral or multilateral treaty or agreement to which the Philippines is a
party;
5
UN Office for Oceans Affairs and the Law of the Sea, Law of the Sea Bulletin, Special Issue 1, March
1987, Annex II, p. 6, quoted in Sweeney, Oliver, Leech, THE INTERNATIONAL LEGAL SYSTEM 193 (3rd Ed., 1988).
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
6.
The provisions of the Convention on archipelagic passage
through sea lanes do not nullify or impair the sovereignty of the Philippines
as an archipelagic State over the sea lanes and do not deprive it of authority
to enact legislation to protect its sovereignty, independence, and security;
7.
The concept of archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or high sea from the rights
of foreign vessels to transit passage for international navigation;
The USSR filed a formal protest against the Philippine reservation. However,
the reservation does not seem to be necessary because Article 8(2) itself says that
the new rule applies only to “areas which had not previously been considered as”
internal waters. The 1973 Constitution, which in its Article I classified as internal
waters what is now referred to as archipelagic waters, pre-dates the 1982
Convention.
Reservations in Human Rights Treaties
The Human Rights Committee of the UN made the following observations
regarding reservations in human rights treaties:
17. As indicated above, it is the Vienna Convention on the Law
of Treaties that provides the definition of reservations and also the
application of the object and purpose test in the absence of other
specific provisions. But the Committee believes that its provisions on
the role of State objections in relation to reservations are inappropriate
to address the problem of reservations to human rights treaties. Such
treaties, and the Covenant specifically, are not a web of inter-State
exchanges of mutual obligations. They concern the endowment of
individuals with rights. The principle of inter-State reciprocity has no
place, save perhaps in the limited context of reservations to
declarations on the Committee’s competence under Article 41. And
because the operation of the classic rules on reservations is so
inadequate for the Covenant, States have often not seen any legal
interest in or need to object to reservations. The absence of protest by
States cannot imply that a reservation is either compatible or
incompatible with the object and purpose of the Covenant. Objections
have been occasional, made by some States but not others, and on
grounds not always
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37
specified; when an objection is made, it often does not specify a legal
consequence, or sometimes even indicates that the objecting party
nonetheless does not regard the Covenant as not in effect as between
the parties concerned. In short, the pattern is so unclear that it is not
safe to assume that a non-objecting State thinks that a particular
reservation is acceptable. In the view of the Committee, because of the
special characteristics of the Covenant as a human rights treaty, it is
open to question what effect objections have between States inter se.
However, an objection to a reservation made by States may provide
some guidance to the Committee in its interpretation as to its
compatibility with the object and purpose of the Covenant.
Entry into force of treaties
Treaties enter into force on the date agreed upon by the parties. Where no
date is indicated, the treaty enters into force once consent has been given.
Multilateral treaties generally contain a provision which says how many states have
to accept the treaty before it can come into force. The rules on entry into force are
as follows:
Article 24. Entry into force:
1. A treaty enters into force in such manner and upon such
date as it may provide or as the negotiating States may agree.
2. Failing any such provision or agreement, a treaty enters into
force as soon as consent to be bound by the treaty has been established
for all the negotiating States.
3. When the consent of a State to be bound by a treaty is
established on a date after the treaty has come into force, the treaty
enters into force for that State on that date, unless the treaty otherwise
provides.
4. The provisions of a treaty regulating the authentication of
its text, the establishment of the consent of States to be bound by the
treaty, the manner or date of its entry into force, reservations, the
functions of the depositary and other matters arising necessarily before
the entry into force of the treaty apply from the time of the adoption of
its text.
Article 25. Provisional application:
1. A treaty or a part of a treaty is applied provisionally
pending its entry into force if:
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38
(a) the treaty itself so provides; or (b) the negotiating
States have in some other manner so agreed.
2.
Unless the treaty otherwise provides or the negotiating
States have otherwise agreed, the provisional application of a treaty or
a part of a treaty with respect to a State shall be terminated if that State
notifies the other States between which the treaty is being applied
provisionally of its intention not to become a party to the treaty.
Application of treaties
The first fundamental rule on treaties is pacta sunt servanda. Article 26 of
the Convention says that “every treaty in force is binding upon the parties to it and
must be performed by them in good faith.”
A second fundamental rule, Article 46, is that a “party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.”
As to the territorial scope of its applicability, Article 29 says: “Unless a
different intention appears from the treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire territory.”
Interpretation of treaties
Article 31 contains the rules for the interpretation of treaties:
1.
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 and in the light of its object and purpose.
2.
The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its preamble
and annexes:
(a) any agreement relating to the treaty which was
made between all the parties in connection with the conclusion
of the treaty; (b) any instrument which was made by one or
more parties in connection with the conclusion of the treaty and
accepted by the other parties as an instrument related to the
treaty.
3.
context:
There shall be taken into account, together with the
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39
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the application of its
provisions;
b)
any subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding
its interpretation;
(c)
any relevant rules of international law applicable in
the relations between the parties.
4.
A special meaning shall be given to a term if it is established that the parties so intended.
Article 31 combines various approaches to treaty interpretation. Article 31(1)
follows the “objective” approach, that is, interpretation according to the ordinary
meaning of the words. This is supplemented by the “teleological” approach in
Article 31(2), that is, interpretation according to the telos or purpose of the treaty.
Finally, Article 31(3) and (4) follow a “subjective” approach which honors special
meaning given by the parties.
Where there are ambiguities in the meaning of a treaty, resort may be made
to supplementary sources. Articles 32 and 33 are relevant:
Article 32. Supplementary means of interpretation.
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of
its conclusion, in order to confirm the meaning resulting from the
application of Article 31, or to determine the meaning when the
interpretation according to Article 31:
(a)
(b)
sonable.
leaves the meaning ambiguous or obscure; or
leads to a result which is manifestly absurd or unrea-
Article 33. Interpretation of treaties authenticated in two or more
languages:
1.
W
hen a treaty has been authenticated in two or more languages, the text
is equally authoritative in each language, unless the treaty provides or
the parties agree that, in case of divergence, a particular text shall
prevail.
2.
A version of the treaty in a language other than one of
those in which the text was authenticated shall be considered an
authentic text only if the treaty so provides or the parties so agree.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
3.
The terms of the treaty are presumed to have the same
meaning in each authentic text.
4.
Except where a particular text prevails in accordance with
paragraph 1, when a comparison of the authentic texts discloses a
difference of meaning which the application of Articles 31 and 32 does
not remove, the meaning which best reconciles the texts, having regard
to the object and purpose of the treaty, shall be adopted.
In case there is conflict among “official texts,” the language that is agreed by
the parties as authoritative is followed.
AIR FRANCE V. SAKS 470 US 392
(Syllabus) Article 17 of the Warsaw Convention makes air
carriers liable for injuries sustained by a passenger “if the accident
which caused the damage so sustained took place on board the aircraft
or in the course of any of the operations of embarking or
disembarking.” Respondent, while a passenger on petitioner’s jetliner
as it descended to land in Los Angeles on a trip from Paris, felt severe
pressure and pain in her left ear, and the pain continued after the
jetliner landed. Shortly thereafter, respondent consulted a doctor who
concluded that she had become permanently deaf in her left ear. She
then filed suit in a California state court, alleging that her hearing loss
was caused by negligent maintenance and operation of the jetliner’s
pressurization system. After the case was removed to Federal District
Court, petitioner moved for summary judgment on the ground that
respondent could not prove that her injury was caused by an
“accident” within the meaning of Article 17, the evidence indicating
that the pressurization system had operated in a normal manner.
Relying on precedent that defines the term “accident” in Article 17 as
an “unusual or unexpected” happening, the District Court granted
summary judgment to petitioner. The Court of Appeals reversed,
holding that the language, history, and policy of the Warsaw
Convention and the Montreal Agreement (a private agreement among
airlines that has been approved by the Federal Government) impose
absolute liability on airlines for injuries proximately caused by the
risks inherent in air travel; and that normal cabin pressure changes
qualify as an “accident” within the definition contained in Annex 13 to
the Convention on International Civil Aviation as meaning “an
occurrence associated with the operation of an aircraft.”
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Held: Liability under Article 17 arises only if a passenger’s
injury is caused by an unexpected or unusual event or happening that is
external to the passenger, and not where the injury results from the
passenger’s own internal reaction to the usual, normal, and expected
operation of the aircraft, in which case it has not been caused by an
accident under Article 17.
(a) The text of the Warsaw Convention suggests that the
passenger’s injury must be so caused. The difference in the language
of Article 17 imposing liability for injuries to passengers caused by an
“accident” and Article 18 imposing liability for destruction or loss of
baggage by an “occurrence,” implies that the drafters of the
Convention understood the word “accident” to mean something
different than the word “occurrence.” Moreover, Article 17 refers to an
accident which caused the passenger’s injury, and not to an accident
which is the passenger’s injury. The text thus implies that, however
“accident” is defined, it is the cause of the injury that must satisfy the
definition rather than the occurrence of the injury alone. And, since the
Warsaw Convention was drafted in French by continental jurists,
further guidance is furnished by the French legal meaning of
“accident” — when used to describe a cause of injury, rather than the
event of injury — as being a fortuitous, unexpected, unusual, or
unintended event.
(b) The above interpretation of Article 17 is consistent with
the negotiating history of the Warsaw Convention, the conduct of the
parties thereto, and the weight of precedent in foreign and American
courts.
(c) While any standard requiring courts to distinguish causes
that are “accidents” from causes that are “occurrences” requires
drawing a line that may be subject to differences as to where it should
fall, an injured passenger is only required to prove that some link in the
chain of causes was an unusual or unexpected event external to the
passenger. Enforcement of Article 17’s “accident” requirement cannot
be circumvented by reference to the Montreal Agreement. That
Agreement while requiring airlines to waive “due care” defenses under
Article 20(1) of the Warsaw Convention, did not waive Article 17’s
“accident” requirement. Nor can enforcement of Article 17 be escaped
by reference to the equation of “accident” with “occurrence” in Annex
13, which, with its corresponding Convention, expressly applies to
aircraft accident investigations and not to principles of liability to
passengers under the Warsaw Convention.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Invalidity of Treaties.
The usual ground for invalidation of contracts can also invalidate a treaty:
error of fact, fraud, corruption or duress.
Article 48. Error:
1.
A State may invoke an error in a treaty as invalidating its
consent to be bound by the treaty if the error relates to a fact or
situation which was assumed by that State to exist at the time when the
treaty was concluded and formed an essential basis of its consent to be
bound by the treaty.
2.
Paragraph 1 shall not apply if the State in question
contributed by its own conduct to the error or if the circumstances
were such as to put that State on notice of a possible error.
3.
An error relating only to the wording of the text of a
treaty does not affect its validity; Article 79 then applies.
Article 49. Fraud:
If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the
fraud as invalidating its consent to be bound by the treaty.
Article 50. Corruption of a representative of a State:
If the expression of a State’s consent to be bound by a treaty has
been procured through the corruption of its representative direcdy or
indirectly by another negotiating State, the State may invoke such
corruption as invalidating its consent to be bound by the treaty.
Article 51. Coercion of a representative of a State:
The expression of a State’s consent to be bound by a treaty
which has been procured by the coercion of its representative through
acts or threats directed against him shall be without any legal effect.
Article 52. Coercion of a State by the threat or use of force:
A treaty is void if its conclusion has been procured by the threat
or use of force in violation of the principles of international law
embodied in the Charter of the United Nations.
Moreover, a violation of jus cogens invalidates a treaty:
Article 53. Treaties conflicting with a peremptory norm of
general international law (jus cogens):
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43
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 general international
law is a norm accepted and recognized by the international community
of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general
international law having the same character.
Note, however, that the definition quoted here is based on the legal effect of
the rule and not on its intrinsic nature. It seems to say that the rule is jus cogens
because no derogation from it is permitted. However, what jus cogens really means
is that no derogation is allowed because it is jus cogens. It is the intrinsic nature of
the rule that disallows derogation.
What are the rules considered to be jus cogens ?
While there is wide acceptance of the existence of jus cogens, there is wide
dispute as to what principles rank as jus cogens. A 1966 Report of the International
Law Commission said that there were suggestions to specify what these were.
Some examples given were: (a) a treaty contemplating an unlawful use of force
contrary to the provisions of the Charter; (b) a treaty contemplating the performance
of any other act criminal under international law; (c) a treaty contemplating or conniving towards the commission of acts such as trade in slaves, piracy, or genocide.
But the Commission decided not to stipulate a list of jus cogens rules for fear of
being misunderstood and for fear of prolonged debate.
A state, however, can lose the right to assert the invalidity of a treaty. The
following rules apply:
Article 45. Loss of a right to invoke a ground for invalidating,
terminating, withdrawing from or suspending the operation of a treaty:
A State may no longer invoke a ground for invalidating,
terminating, withdrawing from or suspending the operation of a treaty
under Articles 46 to 50 or Articles 60 and 62 if, after becoming aware
of the facts:
(a) it shall have expressly agreed that the treaty is valid or
remains in force or continues in operation, as the case may be; or
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
(b) it must by reason of its conduct be considered as having
acquiesced in the validity of the treaty or in its maintenance in force or
in operation, as the case may be.
A state, moreover, with limited exception, may not plead its municipal law as a
ground for invalidating a treaty that has been entered.
Article 46. Provisions of internal 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 of its
internal law regarding competence to conclude treaties as invalidating
its consent unless that violation was manifest and concerned a rule of
its internal law of fundamental importance.
2.
A violation is manifest if it would be objectively evident
to any State conducting itself in the matter in accordance with normal
practice and in good faith.
Article 46. Provisions of internal 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 of its
internal law regarding competence to conclude treaties as invalidating
its consent unless that violation was manifest and concerned a rule of
its internal law of fundamental importance.
2.
A violation is manifest if it would be objectively evident
to any State conducting itself in the matter in accordance with normal
practice and in good faith.
Article 47. Specific restrictions on authority to express the
consent of a State:
If the authority of a representative to express the consent of a
State to be bound by a particular treaty has been made subject to a
specific restriction, his omission to observe that restriction may not be
invoked as invalidating the consent expressed by him unless the
restriction was notified to the other negotiating States prior to his
expressing such consent.
Article 47 is an example of manifest violation.
Amendment and Modification of Treaties.
A distinction is made between amendment and modification of a treaty.
Amendment is a formal revision done with the participation, at
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45
least in its initial stage, by all the parties to the treaty. Modification, on the other
hand, involves only some of the parties.
The general rule on amendments, found in Article 39, is that a “treaty may be
amended by agreement of the parties.” The procedure that is followed is the same
as that for the formation of treaties.
The process is simple enough with regard to bilateral treaties. In recognition
of the fact that it is not easy to obtain the consent of all in multilateral treaties,
Article 40 provides for the possibility of amendments which will affect only some
states but only after all parties have been given the opportunity to consider the
proposed amendments. Article 41, for its part, allows for modification of a treaty by
two or more of the parties.
Amendment
Article 40. Amendment of multilateral treaties:
1.
Unless the treaty otherwise provides, the amendment of
multilateral treaties shall be governed by the following paragraphs.
2.
A
ny proposal to amend a multilateral treaty as between all the parties
must be notified to all the contracting States, each one of which shall
have the right to take part in:
(a) the decision as to the action to be taken in regard to
such proposal; (b) the negotiation and conclusion of any
agreement for the amendment of the treaty.
3.
Every State entitled to become a party to the treaty shall
also be entitled to become a party to the treaty as amended.
4.
The amending agreement does not bind any State already
a party to the treaty which does not become a party to the amending
agreement; Article 30, paragraph 4(b), applies in relation to such State.
5.
Any State which becomes a party to the treaty after the
entry into force of the amending agreement shall, failing an expression
of a different intention by that State:
(a) be considered as a party to the treaty as amended;
and (b) be considered as a party to the unamended treaty in
relation to any party to the treaty not bound by the amending
agreement.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Modification
Article 41. Agreements to modify multilateral treaties between
certain of the parties only —
1.
Two or more of the parties to a multilateral treaty may
conclude an agreement to modify the treaty as between themselves
alone if:
(a) the possibility of such a modification is provided
for by the treaty ; or (b) the modification in question is not
prohibited by the treaty and:
(i)
does not affect the enjoyment by the other
parties of their rights under the treaty or the performance
of their obligations; (ii) does not relate to a provision,
derogation from which is incompatible with the effective
execution of the object and purpose of the treaty as a
whole.
2.
Unles
s in a case falling under paragraph 1(a) the treaty
otherwise
provides, the parties in question shall notify the other
parties of their intention to conclude the agreement and of the
modification to the treaty for which it provides.
Termination of Treaties.
A treaty may be terminated or suspended according to the terms of the treaty
or with the consent of the parties. A treaty with a definite period may also expire. It
may also end when the purpose for the treaty has already been achieved. But a mere
change of government or severance of diplomatic relations does not terminate or
suspend a treaty.
Three other important modes of terminating a treaty are material breach,
impossibility of performance and change of fundamental conditions (rebus sic
stantibus).
Material breach
Article 60. Termination or suspension of the operation of a
treaty as a consequence of its breach:
1.
A material breach of a bilateral treaty by one of the
parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
2.
A material breach of a multilateral treaty by one of the
parties entitles:
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(a) the other parties by unanimous agreement to
suspend the operation of the treaty in whole or in part or to
terminate it either:
(i)
in the relations between themselves and
the defaulting State, or
(ii)
as between all the parties;
(b) a party specially affected by the breach to invoke it
as a ground for suspending the operation of the treaty in whole
or in part in the relations between itself and the defaulting State;
(c) any party other than the defaulting State to invoke
the breach as a ground for suspending the operation of the treaty
in whole or in part with respect to itself if the treaty is of such a
character that a material breach of its provisions by one party
radically changes the position of every party with respect to the
further performance of its obligations under the treaty.
3.
A material breach of a treaty, for the purposes of this
article, consists in:
(a) a repudiation of the treaty not sanctioned by the
present Convention; or
(b) the violation of a provision essential to the
accomplishment of the object or purpose of the treaty.
4.
The foregoing paragraphs are without prejudice to any
provision in the treaty applicable in the event of a breach.
5.
Paragraphs 1 to 3 do not apply to provisions relating to
the protection of the human person contained in treaties of a
humanitarian character, in particular to provisions prohibiting any
form of reprisals against persons protected by such treaties.
Supervening impossibility of performance
Article 61. Supervening impossibility of performance:
1.
A party may invoke the impossibility of performing a
treaty as a ground for terminating or withdrawing from it if the
impossibility results from the permanent disappearance or destruction
of an object indispensable for the execution of the treaty. If the
impossibility is temporary, it may be invoked only as a ground for
suspending the operation of the treaty.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
2.
Impossibility of performance may not be invoked by a
party as a ground for terminating, withdrawing from or suspending the
operation of a treaty if the impossibility is the 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.
Rebus sic stantibus
Article 62. Fundamental change of circumstances:
1.
A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a
treaty, and which was not foreseen by the parties, may not be invoked
as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an
essential basis of the consent of the parties to be bound by the
treaty; and (b) the effect of the change is radically to transform
the extent of obligations still to be performed under the treaty.
2.
A fundamental change of circumstances may not be
invoked as a ground for terminating or withdrawing from a treaty:
(a)
if the treaty establishes a boundary; or (b) 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.
3.
If, under the foregoing paragraphs, a party may invoke a
fundamental change of circumstances as a ground for terminating or
withdrawing from a treaty it may also invoke the change as a ground
for suspending the operation of the treaty.
Article 62 is a codification of the common law principle of rebus sic
stantibus. But the modem approach to it is restrictive. As the ICJ said in the
Fisheries Jurisdiction case (ICJ Reports 1973),
international law admits that a fundamental change in the
circumstances which determined the parties to accept a treaty, 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.
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49
But the Court also added that the changes “must have increased the burden of
the obligations to be executed to the extent of rendering performance something
essentially different from the original intention.”
The following three cases illustrate how difficult it is to establish causes for
the termination of treaties:
FISHERIES JURISDICTION CASE
(UNITED KINGDOM V. ICELAND)
ICJ REP 1973 3
[The United Kingdom, as part of what was known as “the
Cod Wars,” applied to the Court claiming that the proposed
extension of Iceland’s exclusive fisheries jurisdiction from 12
miles to SO miles was a breach of an agreement between the
two states, evidenced by an Exchange of Notes in 1961. Iceland
contended that the Court had no jurisdiction to hear the case and
it also submitted that any agreement which it had with the
United Kingdom not to extend its fisheries jurisdiction, was no
longer binding due to a fundamental change of circumstances
since that agreement.
[The court decided that it did have jurisdiction. It also
considered that Art. 62 of the Vienna Convention on the Law of
Treaties represented customary international law.]
37. One of the basic requirements embodied [Article 62] is
that the change of circumstances must have been a fundamental one. In
this respect the Government of Iceland has, with regard to
developments in fishing techniques, referred ... to the increased
exploitation of the fishery resources in the seas surrounding Iceland
and to the danger of still further exploitation because of an increase in
the catching capacity of fishing fleets. The Icelandic statements recall
the exceptional dependence of that country on its fishing for its
existence and economic development.”
38. The invocation by Iceland of its ‘ vital interests ’, which
were not made the subject of an express reservation to the acceptance
of the jurisdictional obligation under the 1961 Exchange of Notes,
must be interpreted, in the context of the assertion of changed
circumstances, as an indication by Iceland of the reason why it regards
as fundamental the changes which in its view have taken place in
previously existing fishing techniques. This inter-
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
pretation would correspond to the traditional view that the changes of
circumstances which must be regarded as fundamental or vital are
those which imperil the existence or vital development of one of the
parties.
43. Moreover, in order that a change of circumstances may give
rise to a ground for invoking the termination of a treaty it is also
necessary that it should have resulted in a radical transformation of the
extent of the obligations still to be performed. The change must have
increased the burden of the obligations to be executed to the extent of
rendering the performance something essentially different from the
originally undertaken. In respect of the obligation with which the
Court is here concerned, this condition is wholly unsatisfied; the
change of circumstances alleged by Iceland cannot be said to have
transformed radically the extent of the jurisdictional obligation which
is imposed in the 1961 Exchange of Notes. The compromissory clause
enabled either of the parties to submit to the Court any dispute
between them relating to an extension of Icelandic fisheries
jurisdiction in the waters above its continental shelf beyond the 12mile limit. The present dispute is exactly of the character anticipated in
the compromissory clause of the Exchange of Notes. Not only has the
jurisdictional obligation not been radically transformed in its extent; it
has remained precisely what it was in 1961.
NAMIBIA CASE
ICJ REP 1971 16
[The Security Council had resolved that South Africa’s
Mandate over South-West Africa (Namibia) was terminated, but
this had been ignored by South Africa. The Security Council
then resolved, by Resolution 276 (1970), that the continued
presence of South Africa in Namibia was illegal. It sought an
advisory opinion from the Court, asking what were the legal
consequences for States of the continued presence of South
Africa in Namibia notwithstanding Resolution 276 (1970). The
Court held that South Africa was under an obligation to
withdraw its administration in Namibia. It also held that other
States where under an obligation not to recognize any acts by
South Africa’s administration in Namibia (see Chapter 5).]
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THE LAW OF TREATIES
94. In examining this action of the General Assembly, it is
appropriate to have regard to the general principles of international law
regulating termination of a treaty relationship on account of breach.
For even if the mandate is viewed as having the character of an
institution, as is maintained, it depends on those international
agreements which created the system and regulated its application. As
the Court indicated in 1962 ‘this Mandate, like practically all other
similar Mandates’ was a special type of instrument composite in nature
and instituting a novel international regime. It incorporates a definite
agreement. (ICJ Rep 1962, p. 331). The Court stated conclusively in
that Judgment that the Mandate ... ‘in fact and in law, is an
international agreement having the character of a treaty or convention.’
(ICJ Rep 1962, p. 330). The rules laid down by the Vienna Convention
on the Law of Treaties concerning termination of a treaty relationship
on account of breach (adopted without a dissenting vote) may in many
respects be considered as a codification of existing customary law on
the subject. In the light of these rules, only a material breach of a treaty
justifies termination, such breach being defined as:
(a) a repudiation of the treaty not sanctioned by the present
Convention; or
(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. (Art. 60, para. 3)
95. General Assembly Resolution 2145 (XXI) determines that
both forms of material breach had occurred in this case. By stressing
that South Africa ‘has, in fact, disavowed the Mandate’, the General
Assembly declared in fact that it had repudiated it. The resolution in
question is therefore to be viewed as the exercise of the right to
terminate a relationship in case of a deliberate and persistent violation
of obligations which destroys the very object and purpose of that
relationship.
96. It has been contended that the Covenant of the League of
Nations did not confer on the Council of the League power to
terminate a mandate for misconduct of the mandatory and that no such
power could therefore be exercised by the United Nations, since it
could not derive from the League greater powers than the latter itself
had. For this objection to prevail it would be necessary to show that the
mandates system, as established under the League, excluded the
application of the general principle of law that a right of termination on
account of breach must be presumed to exist in respect of all treaties,
except as regards provisions relating
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
to the protection of the human person contained in treaties of a
humanitarian character (as indicated in Art. 60, para. 5, of the Vienna
Convention). The silence of a treaty as to the existence of such a right
cannot be interpreted as implying the exclusion of a right which has its
source outside the treaty, in general international law, and is dependent
on the occurrence of circumstances which are not normally envisaged
when a treaty is concluded.
101. It has been suggested that, even if the Council of the
League had possessed the power of revocation of the Mandate in an
extreme case, it could not have been exercised unilaterally but only in
co-operation with the Mandatory which had committed a serious
breach of the obligations it had undertaken. To contend, on the basis of
the principle of unanimity which applied in the League of Nations, that
in this case revocation could only take place with the concurrence of
the Mandatory, would not only run contrary to the general principle of
law governing termination on account of breach, but also postulate an
impossibility. For obvious reasons, the consent of the wrongdoers to
such a form of termination cannot be required.
DANUBE DAM CASE
(Hungary v. Slovakia)
37ILM162 (1998)
[In 1977, Hungary and Czechoslovakia concluded a
treaty to facilitate the construction of dams on the Danube
River. Hungary later suspended works due to environmental
concerns in response to which Czechoslovakia carried out
unilateral measures. Hungary then claimed the right to terminate
the treaty, at which point the dispute was submitted to the
International Court of Justice. Hungary also submitted that it
was entitled to terminate the Treaty on the ground that
Czechoslovakia had violated Articles of the Treaty by
undertaking unilateral measures, culminating in the diversion of
the Danube. Slovakia became a party to the 1977 Treaty as
successor to Czechoslovakia (see above on succession).]
100. The 1977 Treaty does not contain any provision
regarding its termination..
101. The Court will now turn to the first ground advanced by
Hungary, that of the state of necessity. In this respect, the Court
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THE LAW OF TREATIES
will merely observe that, even if a state of necessity is found to exist, it
is not a ground for the termination of a treaty. It may only be invoked
to exonerate from its responsibility a State which has failed to
implement a treaty.
102. Hungary also relied on the principle of the impossibility
of performance as reflected in Article 61 ... [I]f the joint exploitation of
the investment was no longer possible, this was originally because
Hungary did not carry out most of the works for which it was
responsible; Article 61, paragraph 2, of the Vienna Convention
expressly provides that impossibility of performance may not be
invoked for the termination of a treaty by a party to that treaty when it
results from that party’s own breach of an obligation flowing from that
treaty.
104. Hungary further argued that it was entitled to invoke a
number of events which, cumulatively, would have constituted a
fundamental change of circumstances [changes of political nature, the
reduced economic viability of the Project, and the progress of
environmental knowledge and international environmental law]. The
changed circumstances advanced by Hungary are, in the Court’s view,
not of such a nature’ that their effect would radically transform the
extent of the obligations still to be performed in order to accomplish
the Project. A fundamental change of circumstances must have been
unforeseen; the existence of the circumstances must have constituted
an essential basis of the consent of the parties to be bound by the
treaty.
106. ... [I]t is only a material breach of the treaty itself, by a
State party to that treaty, which entitles the other party to rely on it as a
ground for terminating the treaty. The violation of other treaty rules or
of 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.
109. ... Czechoslovakia violated the Treaty only when it
diverted the waters of the Danube into the bypass canal in October
1992. In constructing the works which would lead to the putting into
operation of [the unilateral measure], Czechoslovakia did not act
unlawfully.
In the Court’s view, therefore, the notification of termination by
Hungary on 19 May 1992 was premature.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Procedure for the Termination of Treaties
Article 65. Procedure to be followed with respect to invalidity,
termination, withdrawal from or suspension of the operation of a treaty
—
1.
A party which, under the provisions of the present
Convention, invokes either a defect in its consent to be bound by a
treaty or a ground for impeaching the validity of a treaty, terminating
it, withdrawing from it or suspending its operation, must notify the
other parties of its claim. The notification shall indicate the measure
proposed to be taken with respect to the treaty and the reasons
therefor.
2.
If, after the expiry of a period which, except in cases of
special urgency, shall not be less than three months after the receipt of
the notification, no party has raised any objection, the party making
the notification may carry out in the manner provided in Article 67 the
measure which it has proposed.
3.
If, however, objection has been raised by any other party,
the parties shall seek a solution through the means indicated in Article
33 of the Charter of the United Nations.
4.
Nothing in the foregoing paragraphs shall affect the rights
or obligations of the parties under any provisions in force binding the
parties with regard to the settlement of disputes.
5.
Without prejudice to Article 45, the fact that a State has
not previously made the notification prescribed in paragraph 1 shall
not prevent it from making such notification in answer to another party
claiming performance of the treaty or alleging its violation.
Article 66. Procedures for judicial settlement, arbitration and
conciliation:
If, under paragraph 3 of Article 65, no solution has been reached
within a period of 12 months following the date on which the
objection was raised, the following procedures shall be followed:
(a) any one of the parties to a dispute concerning the
application or the interpretation of Article 53 or 64 may, by a written
application, submit it to the International Court of Justice for a
decision unless the parties by common consent agree to submit the
dispute to arbitration;
CHAPTER 3
THE LAW OF TREATIES
55
(b) any one of the parties to a dispute concerning the
application or the interpretation of any of the other articles in Part V of
the present Convention may set in motion the procedure specified in
the Annex to the Convention by submitting a request to that effect to
the Secretary-General of the United Nations.
Article 67. Instruments for declaring invalid, terminating,
withdrawing from or suspending the operation of a treaty —
1.
The notification provided for under Article 65, paragraph
1 must be made in writing.
2.
Any act declaring invalid, terminating, withdrawing from
or suspending the operation of a treaty pursuant to the provisions of the
treaty or of paragraphs 2 or 3 of Article 65 shall be carried out through
an instrument communicated to the other parties. If the instrument is
not signed by the Head of State, Head of Government or Minister for
Foreign Affairs, the representative of the State communicating it may
be called upon to produce full powers.
Article 68. Revocation of notifications and instruments provided
for in Articles 65 and 67:
A notification or instrument provided for in Article 65 or 67 may
be revoked at any time before it takes effect.
Authority to Terminate
While the Vienna Convention enumerates those who have the capacity to
enter into treaties, it does not say who may terminate a treaty. Logically, however,
the authority to terminate should also belong to the one who has the authority to
enter into the treaty. In the Philippines, however, as in the United States, the
authority to conclude treaties is shared between the Senate and the President. Can
the President unilaterally terminate a treaty? Goldwater v. Carter,6 discussed this
question relative to President Carter’s termination of the defense treaty with
Taiwan. No decision was reached except to say that the matter was not yet ripe for
judicial review: “The Judicial Branch should not decide issues affecting the
allocation of power between the President and Congress until the political branches
reach a constitutional impasse. Otherwise, we would encourage small groups or
even individual
‘444 U.S. 996 (1979).
56
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Members of Congress to seek judicial resolution of issues before the normal
political process has the opportunity to resolve the conflict.”
Succession to treaties.
When one state ceases to exist and is succeeded by another on the same
territory, the question arises whether the new state is bound by the commitments
made by its predecessor. This subject is taken up by the 1978 Vienna Convention
on the Succession of States with Respect to Treaties which entered into force on
November 6,1996.
The Convention follows the “clean slate” rule. Article 16 says: “A newly
independent State is not bound to maintain in force, or to become a party to, any
treaty by reason only of the fact that at the date of the succession of States the treaty
was in force in respect of the territory to which the succession of States relates.”
But a new state may agree to be bound by the treaties made by its predecessor.
The “clean slate" rule, however, does not apply to treaties affecting boundary
regimes.
Article 11. Boundary regimes
A succession of States does not as such affect: (a) a boundary
established by a treaty ; or (b) obligations and rights established by a
treaty and relating to the regime of a boundary.
Article 12. Other territorial regimes
1.
A succession of States does not as such affect: (a)
obligations relating to the use of any territory, or to restrictions upon
its use, established by a treaty for the benefit of any territory of a
foreign State and considered as attaching to the territories in question;
(b) rights established by a treaty for the benefit of any territory and
relating to the use, or to restrictions upon the use, of any territory of a
foreign State and considered as attaching to the territories in question.
2.
A succession of States does not as such affect: (a)
obligations relating to the use of any territory, or to restrictions upon
its use, established by a treaty for the benefit of a group of States or of
all States and considered as attaching to that territory;
(b) rights established by a treaty for the benefit of a group of States or
of all States and relating to the use of any territory, or
CHAPTER 3
THE LAW OF TREATIES
to restrictions upon its use, and considered as attaching to that territory.
3.
The provisions of the present article do not apply to treaty
obligations of the predecessor State providing for the establishment of
foreign military bases on the territory to which the succession of States
relates.
Chapter 4
INTERNATIONAL LAW AND MUNICIPAL LAW
Dualism vs. Monism.
When a domestic court is confronted with a problem and one of the opposing
parties relies on municipal law as the proper solution and the other party claims that
the problem should be solved by international law, what is the court to do? In other
words, when there is conflict between international law and domestic law, which is
to prevail?
There are varying theories which try to answer the question. The dualist or
pluralist theory holds that international law and municipal law are essentially
different from each other. They differ as to source. Municipal law is a product of
local custom or of legislation whereas the sources of international law are treaties
and custom grown among states. They differ as regards the relations they regulate.
Municipal law regulates relations between individual persons under the state
whereas international law regulates relations between states, They also differ
regarding their substance. Municipal law is a law of the sovereign over individuals
whereas international law is a law between sovereign states.
For the dualists, when international law and municipal law conflict,
municipal law must prevail. The dualists are positivists with a strong emphasis on
state sovereignty.
Opposite to the dualist theory is the Monistic Theory or Monism. Under this
theory, international law and domestic law belong to only one system of law.
However, there are two monist theories. One theory holds that municipal law
subsumes and is superior to international law, and a second theory, supported by
Kelsen, holds that international law is superior to domestic law. The superiority of
international law is seen as 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.
58
CHAPTER 4
INTERNATIONAL LAW AND MUNICIPAL LAW
59
Municipal Law in International Law.
At present the prevailing practice accepts dualism at least in its postulate that
there are two legal systems. There are prevailing provisions in treaties which
recognize dualism. Thus, Article 27 of the Vienna Convention on the Law of
Treaties says, “A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.” Article 13 of the Declaration of
Rights and Duties of States adopted by the International Law Commission in 1949
provides: “Every State has the duty to cany out in good faith its obligations arising
from treaties and other sources of international law, and it may not invoke
provisions in its constitution or its laws as an excuse for failure to perform this
duty.” This follows the dualist tradition and blocks domestic law from entry into the
international arena. Thus, a state which has violated a provision of international law
cannot justify itself by recourse to its domestic law. Moreover, a state which has
entered into an international agreement must modify its law to make it conform to
the agreement. In Exchange of Greek and Turkish Population Case,' the Court
adverted to “a principle which is self-evident according to which a state which has
contracted a valid international obligation is bound to make in its legislation such
modifications as may be necessary to ensure the fulfillment of the obligations
undertaken.”
But even in dualism, the two systems are not completely separated. Thus,
Article 38 recognizes the common teachings of domestic law as part of
international law. Barcelona Traction Case2 said:
If the Court were to decide the case in disregard of the relevant
institutions of municipal law, it would without justification, invite
serious legal difficulties. It would lose touch with reality.... It is to
rules generally accepted by municipal systems,... and not to the
municipal law of a particular State, that international law refers.
For a situation, moreover, where the court must decide a dispute which turns
not upon international law but upon domestic law, as in the Brazilian Loans Case3
the Court stated what it must do: “Once the Court has arrived at the conclusion that
it is necessary to apply the
'Advisory Opinion PCU
2
[1964] ICJ Rep.
Trance v. Brazil, PCU
60
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
municipal law of a particular country, there seems to be no doubt that it must seek
to apply it as it would be applied in that country....”
International Law in Domestic Law.
Dualism also rules when it comes to entry of international law into the
domestic sphere. International law, unless it is made part of the domestic system,
has no role in the settlement of domestic conflicts.
How does international law become part of domestic law for “dualists”? In
this regard, there are two theories. The first is the doctrine of transformation. This
is based on a strict dualist approach. Since the two systems are distinct and operate
separately, for international law to become part of domestic law it must be
expressly and specifically transformed into domestic law through the appropriate
constitutional machinery such as an act of Congress or Parliament. This doctrine
flows by analogy from what is applicable to treaties. Treaties do not become part of
the law of a state unless it is consented to by the state.
The other theory is the doctrine of incorporation. Blackstone expressed this
in his Commentary when he said that:
the law of nations, wherever any question arises which is properly
the object of its jurisdiction, is here adopted in its full extent by the
common law, and it is held to be part of the law of the land.
What does Philippine law follow? In the case of treaties as international law,
they become part of the law of the land when concurred in by the Senate in
accordance with Article VII, Section 21 of the Constitution which sets down the
mechanism for transforming a treaty into binding municipal law. With regard to
customary law and treaties which have become customary law, by saying that the
Philippines “adopts the generally accepted principles of international law as part of
the law of the land,” the Constitution manifests its adherence to the “dualist” theory
and at the same time adopts the incorporation theory and thereby makes
international law part of domestic law. This provision makes the Philippines one of
the states which make a specific declaration that international law has the force also
of domestic law.4 International law
4
Similar provisions are found in the Austrian Constitution, Article 9: “The generally recognized rules
of international law shall be considered as component parts of the Federal Law,” and in Article 25 of the
Constitution of the Federal Republic of Germany: “The general rules of public international law are an integral
part of federal law.”
CHAPTER 4
INTERNATIONAL LAW AND MUNICIPAL LAW
61
therefore can be used by Philippine courts to settle domestic disputes in much the
same way that they would use the Civil Code or the Penal Code and other laws
passed by Congress.
What elements of international law become part of Philippine law by
incorporation through Article II, Section 2? Since treaties become apart of
Philippine law only by ratification, the principle of incorporation applies only to
customary law and to treaties which have become part of customary law. This
distinction, however, is sometimes blurred in some Philippine Supreme Court
decisions.5
There have been occasions when the Supreme Court made use of
international law to settle domestic problems. In Mejojfv. Director of Prisons,6 an
alien of Russian descent who had been detained pending execution of the order of
deportation was ordered released on bail when after two years the deportation order
could not be carried out because no ship or country would take him. The Court said
in part:7
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines
“adopts the generally accepted principles of international law as part of
the law of the Nation.” And in a resolution entitled “Universal
Declaration of Human Rights” and approved by the General Assembly
of the United Nations of which the Philippines is a member, at its
plenary meeting on December 10, 1948, the right to life and liberty
and all other fundamental rights as applied to all human beings were
proclaimed. It was there resolved that “All human beings are bom free
and equal in degree and rights”
(Art. 1); that “Everyone is entitled to all the rights and freedom set
forth in this Declaration, without distinction of any kind, such as race,
color, sex, language, religion, political or other opinion, nationality or
social origin, property, birth, or other status” (Art.
2)\ that “Everyone has the right to an effective remedy by the
competent nationals for acts violating the fundamental rights granted
him by the Constitution or by law” (Art. 8); that “No one shall be
subjected to arbitrary arrest, detention or exile” (Art. 9); etc.
'See Aloysius Llamzon, THE GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW: TOWARDS A STRUCTURALLY CONSISTENT USE OF CUSTOMARY
INTERNATIONAL LAW IN PHIUPPINE COURTS, JD Thesis
submitted to the Ateneo de Manila School of Law, 2002.
<90 Phil. 70 (1951).
Vd. at 73-4.
62
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Earlier, in Kuroda v. Jalandoni,8 the Court said that the provision “is not
confined to the recognition of rules and principles of international law as contained
in treaties to which our government may have been or shall be a signatory.” Thus,
although the Philippines was not a signatory to the Hague Convention and became
a signatory to the Geneva Convention only in 1947, the Court held that a Philippine
Military Commission had jurisdiction over war crimes committed in violation of
the two conventions prior to 1947. Apparently, the Court considered jurisdiction
over war crimes part of customary law.
In Agustin v. Edu,9 a case involving a presidential Letter of Instruction
prescribing the use of early warning devices (EWD), the Court said that the
constitutional provision “possesses relevance.” The court pointed out that the 1968
Vienna Convention on Road Signs and Signals had been ratified by the Philippine
government under Presidential Decree No. 207. “It is not for this country to
repudiate a commitment to which it had pledged its word. The concept Pacta sunt
servanda stands in the way of such an attitude, which is, moreover, at war with the
principle of international morality.”10 Strictly speaking, therefore, the incorporation
here was done not via the Constitution but by ratification.
Likewise, the international duty of protecting foreign embassies was
recognized in JBL. Reyes v. Bagatsing." The doctrine of immunity from suit of a
foreign state is likewise a principle of international law whose acceptance in this
jurisdiction has been established in a long line of cases starting with Raquiza v.
Bradford.'2 It was summarized and reaffirmed in Baer v. TizonP
Conflict between International Law and Domestic Law: International Rule
This incorporation or reception of international law into domestic Philippine
law can become a problem when international law, whether customary or
conventional, comes into conflict with domestic law, whether constitutional or
statutory. Which law should prevail? It will
8
83 Phil. 171,178(1949).
9
88 SCRA 195,213 (February
'°Id.
"G.R. No. 65366, October 25,1983.
I2
75 Phil. 50 (1945).
”57 SCRA 1,6-8 (May 3,1974).
CHAPTER 4
INTERNATIONAL LAW AND MUNICIPAL LAW
63
depend on whether the case goes to a domestic court or to an international tribunal.
It is an established principle that, before an international tribunal, a state may not
plead its own law as an excuse for failure to comply with international law. “Every
State has the duty to carry out in good faith its obligations arising from treaties and
other sources of international law, and it may not invoke provisions in its
constitutions or its laws as an excuse for failure to perform this duty.”14 In the advisory opinion on Exchange of Greek and Turkish Populations Case,'5 the Court
said: “this clause ... merely lays stress on a principle which is self-evident,
according to which a State which has contracted valid international obligations is
bound to make in its legislation such modifications as may be necessary to ensure
the fulfillment of the obligations undertaken.”
This principle of the Vienna Convention has long been established and is
generally recognized. But an exception is made to the rule by Article 46 of the same
Convention in cases where the constitutional “violation was manifest and
concerned a rule of its internal law of fundamental importance.” The same article
defines the violation as “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 that is declared unconstitutional, however, does not come under
the exception, the treaty can be ignored domestically but only at the risk of
international repercussions before an international court.
Conflict between International Law and Domestic Law: Municipal Rule
The situation, however, is different when the conflict comes before a
domestic court. Domestic courts are bound to apply the local law. In international
practice, however, courts are very rarely confronted with such a problem. The
reason for this is that courts are generally able to give to domestic law a
construction which does not conflict with international law. But should conflict
arise, what rule should be followed and what are the possible consequences?
“Article 13, Declaration of Rights and Duties adopted by the International Law Commis
sion in 1949.
,s
[1925] PCIJ, Ser. B,No. 10.
64
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Conflict may arise between a state’s Constitution and international law.
Conceivably, however, there should be no such conflict between the Philippine
Constitution or statutes on the one hand and customary international law on the
other because the Constitution when formulated accepted the general principles of
international law as part of the law of the land. Problems can more likely arise
between treaties on the one hand and the Constitution or statutes on the other.
Should a conflict arise between an international agreement and the
Constitution, the treaty would not be valid and operative as domestic law. The
Constitution, in Article VIII, Section 5, 2(a) explicitly recognizes the power of the
Supreme Court to declare a treaty unconstitutional. This does not mean, however,
that a treaty that has been declared unconstitutional loses its character as
international law. Under the “dualist” theory, which the Constitution accepts, the
unconstitutionality of a treaty is purely a domestic matter. As Article 27 of the
Vienna Convention on the Law of Treaties says, “A party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.”
Of interest here is the manner in which the Supreme Court handled the
challenge to the Senate’s ratification of the GATT Treaty in Tanada v. Angara}6
The petitioners in the case argued that the “letter, spirit and intent” of the
Constitution mandating “economic nationalism” were violated by the “parity
provisions” and “national treatment clauses” scattered in various parts not only of
the WTO Agreement and its annexes but also in the Ministerial Decisions and
Declarations and in the Understanding on Commitments in Financial Services. The
petitioners had relied on the nationalistic provisions of Articles II and XII of the
Constitution. In reply, the Court said:
By its very title, Article II of the Constitution is a “declaration
of principles and state policies.” The counterpart of this article in the
1935 Constitution is called the “basic political creed of the nation” by
Dean Vicente Sinco. These principles in Article II are not intended to
be self-executing principles ready for enforcement through the courts.
They are used by the judiciary as aids or as guides in the exercise of its
power of judicial review, and by the legislature in its enactment of
laws. As held in the leading case of
l6
G.R. No. 118295, May 2,1997.
CHAPTER 4
INTERNATIONAL LAW AND MUNICIPAL LAW
65
Kilosbayan, Incorporated vs. Morato, the principles and state policies
enumerated in Article II and some sections of Article XII are not “selfexecuting provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable
constitutional rights but guidelines for legislation.”
All told, while the Constitution indeed mandates a bias in favor
of Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the world
on the bases of equality and reciprocity and limits protection of
Filipino enterprises only against foreign competition and trade
practices that are unfair. In other words, the Constitution did not intend
to pursue an isolationist policy. It did not shut out foreign investments,
goods and services in the development of the Philippine economy.
While the Constitution does not encourage the unlimited entry of
foreign goods, services and investments into the country, it does not
prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is
unfair.
The position of the Court in Tafiada is a retreat from an the earlier case of
Manila Prince Hotel v. Government Service Insurance System17 where the Court
said that the command of Article XII, Section 10 was mandatory and selfexecutory. Section 10 says: “In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State shall give preference to
qualified Filipinos.” In awarding a contract to a Filipino corporation which had a
lower bid than that of a Malaysian, the Court said that the command of Section
12 “is a mandatory, positive command which is complete in itself and which needs
no further guidelines or implementing laws or rules for its enforcement. From its
very words, the provision does not require any legislation to put it in operation. It is
per se judicially enforceable.” The Court, however, attempted to justify its new
position by saying:
It is true that in the recent case of Manila Prince Hotel vs.
Government Service Insurance System, et al„ this Court held that
“Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs
no further guidelines or implementing laws or rules for its
l7
GJt. No. 122156, February 3,1997.
66
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
enforcement. From its very words, the provision does not require any
legislation to put it in operation. It is per se judicially enforceable.”
However, as the constitutional provision itself states, it is enforceable
only in regard to “the grants of rights, privileges and concessions
covering national economy and patrimony” and not to every aspect of
trade and commerce. It refers to exceptions rather than the rule. The
issue here is not whether this paragraph of Sec.
10 of Art. XII is self-executing or not. Rather, the issue is whether, as
a rule, there are enough balancing provisions in the Constitution to
allow the Senate to ratify the Philippine concurrence in the WTO
Agreement. And we hold that there are.
The municipal rule for settling a conflict between international agreement
and legislation is different. The rule followed in the United States is that treaties
and statutes are equal in rank and that, since neither is superior to the other, the rule
followed is that as between an earlier treaty and a later law, the later one prevails.
As the United States Supreme Court said: “This Court has also repeatedly taken the
position that an Act of Congress ... is on a full parity with a treaty, and that when a
statute which is subsequent in time is inconsistent with a treaty, the statute to the
extent of conflict renders the treaty null.”18 The same rule applies in the Philippines.
But again, the rule applies only in the domestic sphere. The treaty, even if contrary
to later statute, remains as international law; while an international tribunal would
not have the power to reverse the nullification of the treaty in domestic law, it can
take appropriate action in favor of an aggrieved state.
Illustrative cases
HEAD MONEY CASES EDYE V. ROBERTSON 112 U^. 580 (1884)
A treaty is primarily a compact between independent nations.
It depends for the enforcement of its provisions on the interest and the
honor of the governments which are parties to it. If these fail, its
infraction becomes the subject of international negotiations and
reclamations, so far as the injured party chooses to seek redress, which
may, in the end, be enforced by actual war. It is obvious that,
18
Reid v. Covert, 354 U.S. 1,18 (1957).
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INTERNATIONAL LAW AND MUNICIPAL LAW
with all this, the judicial courts have nothing to do, and can give no
redress.
But a treaty may also contain provisions which confer certain
rights upon the citizens or subjects of one of the nations residing in the
territorial limits of the other, which partake of the nature of municipal
law and which are capable of enforcement as between private parties in
the courts of the country. An illustration of this character is found in
treaties which regulate the mutual rights of citizens and subjects of the
contracting nations in regard to rights of property by descent or
inheritance when the individuals concerned are aliens. The
Constitution of the United States places such provisions as these in the
same category as other laws of Congress by its declaration that this
Constitution and the laws made in pursuance thereof, and all treaties
made or which shall be made under authority of the United States,
shall be the supreme law of the land.
A treaty, then, is a law of the land; it becomes an an act of
Congress whenever its provisions prescribe a rule by which the rights
of the private citizen or subject may be determined. And when such
rights are of a nature to be enforced in a court of justice, that court
resorts to the treaty for a rule of decision for the case before it as it
would to a statute.
But, even in this aspect of the case, there is nothing in this law
which makes it irrepealable or unchangeable. The Constitution gives it
no superiority over an act of Congress in this respect, which may be
repealed or modified by an act of a later date. Nor is there anything in
its essential character, or in the branches of the government by which
the treaty is made, which gives it this superior sanctity.
A treaty is made by the President and the Senate. Statutes are
made by the President, the Senate, and the House of Representatives.
The addition of the latter body to the other two in making a law
certainly does not render it less entitled to respect in the matter of its
repeal or modification than a treaty made by the other two. If there be
any difference in this regard, it would seem to be in favor of an act in
which all three of the bodies participate. And such is, in fact, the case
in a declaration of war, which must be made by Congress and which,
when made, usually suspends or destroys existing treaties between the
nations thus at war.
In short, we are of opinion that, so far as a treaty made by the
United States with any foreign nation can become the subject
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
of judicial cognizance in the courts of this country, it is subject to such
acts as Congress may pass for its enforcement, modification, or repeal.
WHITNEY v. ROBERTSON, 124 US. 190 (1888) FIELD, J.
The plaintiffs are merchants, doing business in the city of New
York; and in August, 1882, they imported a large quantity of
‘centrifugal and molasses sugars,’ the produce and manufacture of the
island of San Domingo. These goods were similar in kind to sugars
produced in the Hawaiian Islands, which are admitted free of duty
under the treaty with the king of those islands, and the act of congress
passed to carry the treaty into effect. They were duly entered at the
custom-house at the port of New York; the plaintiffs claiming that, by
the treaty with the republic of San Domingo, the goods should be
admitted on the same terms, that is, free of duty, as similar articles, the
produce and manufacture of the Hawaiian islands. The defendant, who
was at the time collector of the port, refused to allow this claim, treated
the goods as dutiable articles under the acts of Congress....
The plaintiffs appealed from the collector’s decision to the
secretary of the treasury, by whom the appeal was denied. They then
paid, under protest, the duties exacted, and brought the present action
to recover the amount.... The defendant demurred to the complaint, the
demurrer was sustained, and final judgment was entered in his favor;
to review which the case is brought here.
... [t]he act of Congress under which the duties were collected,
authorized their exaction. It is of general application, making no
exception in favor of goods of any country. It was passed after the
treaty with the Dominican republic, and, if there be any conflict
between the stipulations of the treaty and the requirements of the law,
the latter must control.
A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the
infraction of its provisions a remedy must be sought by the injured
party through reclamations upon the other. When the stipulations are
not self-executing, they can only be enforced pursuant to legislation to
carry them into effect, and such legislation is as much subject to
modification and repeal by congress as legislation
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upon any other subject. If the treaty contains stipulations which are
self-executing, that is, require no legislation to make them operative, to
that extent they have the force and effect of a legislative enactment.
Congress may modify such provisions, so far as they bind the United
States, or supersede them altogether. By the constitution, a treaty is
placed on the same footing, and made of like obligation, with an act of
legislation. Both are declared by that instrument to be the supreme law
of the land, and no superior efficacy is given to either over the other.
When the two relate to the same subject, the courts will always
endeavor to construe them so as to give effect to both, if that can be
done without violating the language of either; but, if the two are
inconsistent, the one last in date will control the other: provided,
always, the stipulation of the treaty on the subject is self-executing.
If the country with which the treaty is made is dissatisfied with
the action of the legislative department, it may present its complaint to
the executive head of the government, and take such other measures as
it may deem essential for the protection of its interests. The courts can
afford no redress. Whether the complaining nation has just cause of
complaint, or our country was justified in its legislation, are not
matters for judicial cognizance.
In Taylor v. Morton, 2 Curt. 454, 459, this subject was very
elaborately considered at the circuit by Mr. Justice CURTIS, of this
court, and he held that whether a treaty with a foreign sovereign had
been violated by him; whether the consideration of a particular
stipulation of the treaty had been voluntarily withdrawn by one party,
so that it was no longer obligatory on the other; whether the views and
acts of a foreign sovereign had given just occasion to the legislative
department of our government to withhold the execution of a promise
contained in a treaty, or to act in direct contravention of such promise,
were not judicial questions; that the power to determine these matters
had not been confided to the judiciary, which has no suitable means to
exercise it, but to the executive and legislative departments of our
government; and that they belong to diplomacy and legislation, and not
to the administration of the laws. And he justly observed, as a
necessary consequence of these views, that, if the power to determine
these matters is vested in congress, it is wholly immaterial to inquire
whether by the act assailed it has departed from the treaty or not, or
whether such departure was by accident or design, and, if the latter,
whether the reasons were good or bad. In these views we fully concur.
It follows, therefore, that, when a law is
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
clear in its provisions, its validity cannot be assailed before the courts
for want of conformity to stipulations of a previous treaty not already
executed. Considerations of that character belong to another
department of the government. The duty of the courts is to construe
and give effect to the latest expression of the sovereign will. In HeadMoney Cases, 112 US. 580, 5 Sup. Ct. Rep. 247, it was objected to an
act of congress that it violated provisions contained in treaties with
foreign nations, but the court replied that, so far as the provisions of
the act were in conflict with any treaty, they must prevail in all the
courts of the country; and, after a full and elaborate consideration of
the subject, it held that, ‘so far as a treaty made by the United States
with any foreign nation can be the subject of judicial cognizance in the
courts of this country, it is subject to such acts as congress may pass
for its enforcement, modification, or repeal.’
Chapter 5
SUBJECTS OF INTERNATIONAL LAW: STATES
Subjects of International Law.
Subjects of international law are entities endowed with rights and obligations
in the international order and possessing the capacity to take certain kinds of action
on the international plane. In other words, they are those who have international
personality. They are actors in the international legal system and are distinct from
objects of international law. Objects of international law are those who indirectly
have rights under or are beneficiaries of international law through subjects of
international law.
Not all subjects of international law enjoy the same rights and obligations.
States remain the predominant actors, but other actors have come to be recognized.
In asserting the international personality of the United Nations, for instance, the
Reparations Case1 had this to say:
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. Throughout its history, the
development of international law has been influenced by the
requirements of international life, and the progressive increase in the
collective activities of States has already given rise to instances of
action upon the international plane by certain entities which are not
States....
States enjoy the fullest personality in international law. They will be the
concern of this chapter. Other subjects will be treated in the following chapter.
'[1949] ICJ Rep.
71
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
States: Commencement of their Existence.
There are various situations when the question of statehood arises. Examples
are when a portion of a territory has seceded, or when there is foreign control over
the affairs of an entity which claims to be a state, or when states have formed a
union but continue to retain some autonomy, and when individual members of a
federation claim statehood.
The traditional statement of the characteristics which make an entity a state
is found in the Montevideo Convention of 1933 on Rights and Duties of States:
“The state as a person of international law should possess the following
qualifications: (a) a permanent population; (b) a defined territory; (c) government;
(d) the capacity to enter into relations with other States.” Hence, the definition of
the concept “state” which has found currency among Philippine writers is this: it is
a community of persons more or less numerous, permanently occupying a definite
portion of territory, independent of external control, and possessing an organized
government to which the great body of inhabitants render habitual obedience.
Commentators, following the Montevideo Convention, break down the concept
into four elements: people, territory, government, and sovereignty
People or Population
As an element of a state, “people” simply means a community of persons
sufficient in number and capable of maintaining the permanent existence of the
community and held together by a common bond of law. It is of no legal
consequence if they possess diverse racial, cultural, or economic interests. Nor is a
minimum population required.
Territory
A definite territory over which an entity exercises permanent sovereignty is
another element of a state. But as the Restatement (Third) on the Foreign Relations
Law of the United States explains: “An entity may satisfy the territorial
requirement for statehood even if its boundaries have not been finally settled, if one
or more of its boundaries are disputed, or if some of its territory is claimed by
another state. An entity does not necessarily cease to be a state even if all its
territory has been occupied by a foreign power or if it has otherwise lost control of
its territory temporarily.”2
2
§ 201. U.S. courts generally view the Restatement as an authoritative scholarly statement of
contemporary international law.
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73
Government
Government, as an element of a state, is defined as “that institution or
aggregate of institutions by which an independent society makes and carries out
those rules of action which are necessary to enable men to live in a social state, or
which are imposed upon the people forming that society by those who possess the
power or authority of prescribing them.”3 International law does not specify what
form a government should have. Moreover, for purposes of international law, it is
the national government that has legal personality and it is the national government
that is internationally responsible for the actions of other agencies and
instrumentalities of the state. Finally, a temporary absence of government, for
instance during an occupation by a foreign power, does not terminate the existence
of a state.
Sovereignty
Sovereignty means independence from outside control. The Montevideo
Convention expresses this in positive terms as including “the capacity to enter into
relations with other States.” This latter element of sovereignty, however, is
dependent on recognition.
An entity may in fact possess all the elements of a state but if one or more
states do not extend recognition to it, the entity would not be able to establish
relations with those states. Incidentally, although the Philippines was not yet an
independent state in 1945, it was accepted as one of the original signatories of the
United Nations Charter.
Self-determination
Sovereignty as an element of a state is related to but not identical with the
broader concept of the right of self-determination. In the post- World War II era,
there have arisen numerous new states. The impetus behind the birth of new states
is the principle of self-determination of peoples. Both the International Covenant
on Civil and Political Rights and the International Covenant on Economic, Social,
and Cultural Rights assert the principle of self determination of people in identical
language: “All peoples have the right of self-determination. By virtue of that right
they freely determine their political status and freely pursue
3
U.S. v. Dorr, 2 Phil. 332, cited in Bacani v. NACOCO, 100 Phil. 468,471 (1956).
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
their economic, social and cultural development.” This principle has been affirmed
and reaffirmed by various documents of the United Nations, notably the
Declaration on the Granting of Independence to Colonial Countries and Peoples
(1960) and the Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of the
United Nations. (1970).
The various levels of claim to self-determination may be broken down into
two main categories. The first is the establishment of new states — that is, the
claim by a group within an established state to break away and form a new entity.
The second does not involve the establishment of a new state. This can simply be
claims to be free from external coercion, or the claim to overthrow effective rulers
and establish a new government, that is, the assertion of the right of revolution; or
the claim of people within an entity to be given autonomy.
The UN has used various means to give effect to self-determination:
resolutions of support for demands, sanctions for offenses against selfdetermination, helping in ascertaining the will of the people, giving rights of
participation in international fora, inquiries and reports, military force to maintain
order, formulation of criteria whether self- government exists, and technical
assistance. But international law has not recognized a right of secession from a
legitimately existing state.
Recognition of states.
When State A recognizes State B, it means that both recognize the capacity
of each other to exercise all the rights belonging to statehood. Recognition thus
means the act of acknowledging the capacity of an entity to exercise rights
belonging to statehood.
Can an entity claim to be a state before it is recognized by other states?
There are two views on this. One view, the declaratory theory, is that recognition
is merely “declaratory” of the existence of the state and that its being a state
depends upon its possession of the required elements and not upon recognition. A
recognizing state merely accepts an already existing situation. The weight of
authority favors the “declaratory view.”
The other view, the constitutive theory, is that recognition “constitutes” a
state, that is, it is what makes a state a state and confers legal
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75
personality on the entity. In effect, this merely emphasizes the point that states are
under no obligation to enter into bilateral relations. But then states may decide to
recognize an entity as a state even if it does not have all the elements of a state
found in the Montevideo Convention.
In an extended article on recent practice of states relative to recognition, the
author draws the following conclusion:4
The main conclusion to be drawn is that the question of recognition of states has become less predictable and more a matter of
political discretion as a result of recent practice. The traditional criteria
for statehood retain an uneasy existence alongside the new EC
Guidelines, which have been particularly influential in relation to the
recognition of the new states emerging from the USSR and
Yugoslavia.
The anarchic situation in Georgia led some countries to refrain
from recognizing that country in accordance with the traditional
criteria while in the case of the Republic of Bosnia and Herzegovina
the international community used recognition in an attempt to arrest
what looked like an inevitable slide into anarchy.
Issues such as the presence of foreign forces on a country’s soil
have been treated inconsistently or glossed over. This is
understandable because there are times when train timetables cannot
keep up with the march of history. A valid distinction could be made
between situations which are the remnants of the Cold War such as the
continuing presence of former Soviet troops in Germany and situations
of hostile occupation such as the hold of Belgrade-supported local
Serbian forces over large slabs of Croatia and Bosnia and
Herzegovina. Yet even in the latter case, the absence of control by the
central government over large parts of its territory did not halt
recognition. Nor has the continuing unwelcome presence of ‘Soviet’
forces in the Baltic republics detracted from their independence in
international eyes.
At the same time, the absence of foreign forces from the former
Yugoslav Republic of Macedonia (which was accomplished when the
Yugoslav People’s Army completed its withdrawal from Macedonia in
March 1992) has not led states to accept that territory as a fit subject of
recognition.
4
Roland Rich, RECOGNITION OF STATES: THE COLLAPSE OF YUGOSLAVIA AND THE SOVIET UNION, 4 Eur.
J Int’l L, No. 1 (1993).
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Membership of the UN has also been seen differently by
different countries insofar as a vote in favour may amount to
recognition. India decided to extend recognition before Croatia,
Slovenia and Bosnia and Herzegovina joined the UN. Sweden took the
view that, having participated in the unanimous decision of the UN
General Assembly to accept the membership of Bosnia and
Herzegovina, ‘this according to Swedish practice means that Sweden
has recognized the Republic of Bosnia and Herzegovina.’ The
Swedish view has considerable merit in that membership of the UN is
only open to states and voting in favour of a new member state’s
application would seem to imply a statement of recognition of that
new state. However, other states take a different view. Both Chile and
Sri Lanka for example, having participated in the UN General
Assembly vote admitting the Republic of Bosnia and Herzegovina,
nevertheless considered it necessary a few days later to extend
recognition on a bilateral basis.
It now seems that the ‘political realities’ have gained primacy
over the inclinations to maintain consistency by applying accepted
criteria to test the fact of statehood. This should not be seen as
necessarily a negative development. The application of the traditional
criteria as the test for statehood and therefore the rationale behind
recognition was largely amoral. How a government came to be in
effective control over its territory was, for the most part, not
considered to be a relevant factor. The adoption of conditions leading
to recognition is an attempt to introduce a greater moral dimension.
Yet the enemy of such a moral stand is inconsistency, the very factor
which the traditional criteria tried to avoid. And there can be fewer
better examples of inconsistency than the continuing refusal to
recognize the independence of the former Yugoslav Republic of
Macedonia even though it meets every criterion and every condition
but simply refuses to change its name. The ‘political realities’ in this
case seem to have more to do with internal EC politics than with the
merits of the Macedonian case.
The EC’s 12 December 1992 Edinburgh summit dealt with the
question of the former Yugoslav Republic of Macedonia but did not
advance the matter significantly. While falling short of endorsing the
line taken at the Lisbon summit in relation to recognition, the
Edinburgh summit did not really review this position and simply left
EC Foreign Ministers seized of the question. Authorities in Skopje
may have no alternative but to
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77
consider the EC position as an abdication of the leadership role
hitherto played by the EC. This could lead the government in Skopje to
the conclusion that it should seek UN membership thus by-passing the
EC altogether. In such circumstances, the issue of the effect of a vote
for membership of the UN on the question of recognition will need to
be closely considered by UN members.
Reverting to the long-running debate about whether recognition
is declaratory or constitutive, recent events seem to point towards a
trend to attempt to constitute states through the process of recognition.
Bosnia and Herzegovina is an obvious example but Ukraine can also
be seen to fit into this category.
The end of the Cold War will lead to many new situations where
peoples will not feel as constrained as in the past to attempt to exercise
their right to self-determination. In response to this phenomenon the
international community is now faced with a far more complex
problem than in the recent past. Old ideas about equating the status quo
to stability, about the unacceptability of secession, about considering
peoples only in terms of the states they live in and about the
inviolability of existing international frontiers will be re-examined.
When considering a question of recognition, states will have to ask
themselves questions about whether such an action will contribute to a
peaceful resolution of a conflict, and if the answer is in the affirmative,
the traditional criteria for statehood may well have to be finessed.
Nor should we expect this new situation to be limited to the
problems of Europe. The principles involved are universal and the new
issues to be confronted may soon be seen to be problems on a global
scale.
Recognition of Government.
Closely related to recognition of states is recognition of governments. It
means the act of acknowledging the capacity of an entity to exercise powers of
government of a state.
If a change in government in an existing state comes about through ordinary
constitutional procedure, recognition by others comes as a matter of course. The
problem is acute when a new government within a state comes into existence
through extra-constitutional means. The following are two cases involving
recognition of government:
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
THE TINOCO ARBITRATION
Great Britain v. Costa Rica (1923)
William H. Taft, Arbitrator
In January 1917, the Government of Costa Rica, under President
Alfredo Gonzalez, was overthrown by Federico Tenneco. Tenneco’s
government concluded certain contracts with British Corporations.
Tenneco retired and left the country. After Tenneco’s retirement the
old constitution was restored and a Law of Nullities was passed
annulling the contracts concluded during the Tenneco regime. Great
Britain made claims on the basis of the injuries done to its nationals
caused by the annulments. There were two preliminary questions: 1.
What was the status of the Tinoco regime in international law. 2. Was
Great Britain estopped from pursuing its claims because it never
recognized the Tinoco government either de jure or de facto.
Taft ...
But it is urged that many leading Powers refused to
recognize the Tinoco government. ... Undoubtedly, recognition
by other Powers is an important evidential factor in establishing
proof of the existence of a government in the society of nations.
The non-recognition by other nations of a government
claiming to be a national personality, is usually appropriate
evidence that it has not attained the independence and control
entitling it by international law to be classed as such. But when
recognition of a government is by such nations determined by
inquiry, not into its de facto sovereignty and complete
governmental control, but into its illegitimacy or irregularity of
origin, their non-recognition loses something of evidential
weight... [it] cannot outweigh the evidence disclosed by this
record before me as to the de facto character of Tinoco’s
government....
Second. It is ... argued on behalf of Costa Rica that the
Tinoco government cannot be considered a de facto
government, because it was not established and maintained in
accord with the constitution of Costa Rica of 1871. To hold that
a government... does not become a de facto government unless
it conforms to a previous constitution would be to hold that
within the rules of international law a revolution contrary to the
fundamental law of the existing government
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SUBJECTS OF INTERNATIONAL LAW: STATES
cannot establish a new government. This cannot be, and is
not,true....
Third. It is further objected by Costa Rica that Great Britain by
her failure to recognize the Tinoco government is estopped now to
urge claims of her subjects dependent upon the acts and
contracts of the Tinoco government Here the executive of Great
Britain takes the position that the Tinoco government which it did not
recognize, was nevertheless a de facto government that could create
rights in British subjects which it now seeks to protect. Nonrecognition may have aided the succeeding government to come into
power; but subsequent presentation of claims based on the de facto
existence of the previous government ... does not work an injury to the
succeeding government in the nature of a fraud or breach of good
faith.
UPRIGHT v. MERCURY BUSINESS MACHINES CO.
Supreme Court of New York, Appellate Division,
First Department, 1961.
13 A.D.2d 36,213 N.Y.S.2d 417
BREITEL, JUSTICE PRESIDING. Plaintiff, an individual, sues
as the assignee of a trade acceptance drawn on and accepted by
defendant in payment for business typewriters sold and delivered to it
by a foreign corporation. The trade acceptance is in the amount of $27
307.45 and was assigned to plaintiff after dishonor by defendant.
Involved on this appeal is only the legal sufficiency of the first
affirmative defense. It alleges that the foreign corporation is the
creature of the East German Government, a government not
recognized by the United States. It alleges, moreover, that such
corporation is an enterprise controlled by and that it is an arm and
instrument of such government.
On motion addressed to its sufficiency Special Term sustained
the defense. For the reasons that follow the defense should have been
stricken as legally insufficient....
A foreign government, although not recognized by the
political arm of the United States Government, may nevertheless
have de facto existence which is juridically cognizable. The acts
of such a de facto government may affect private rights and
obligations arising either as a result of activity in, or with
persons or corporations within, the
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
territory controlled by such de facto government. This is
traditional law. (Russian Reinsurance Co. v. Stoddard, 240 N.Y.
149, 147 N.E. 703; M. Salimoff & Co. v. Standard Oil Co., 262
N.Y. 220,186 N.E. 679, 89 ALJi. 345)
Consequences of Recognition or Non-recognition.
In a world of growing interdependence, recognition or nonrecognition of
government can have very serious consequences. A government, once recognized,
gains increased prestige and stability. The doors of funding agencies are opened,
loans are facilitated, access to foreign courts and immunity from suit are gained.
Military and financial assistance also come within reach. The absence of formal
recognition, on the other hand, bars an entity from all these benefits or, at least,
access to them may be suspended.
Recognition of a government, however, like recognition of a state involves a
highly political judgment. The United States, for instance, refused for many years
to recognize the government of the People’s Republic of China or of North Korea
not because it was not obvious that these governments had effective control of their
territory but because the United States did not wish these governments to benefit
from the legal effects of recognition.
Does admission of a government to the United Nations mean recognition by
all members? No. The recognition is only to the extent of the activities of the
organization.
While recognition of a state is not the same as recognition of government,
the two often go together in the case of new states. However, within established
states, governments come and go with no effect on recognition of the state. It
should be noted, moreover, that recognition of government does not mean approval
of the recognized government’s methods. Nor do diplomatic relations connote
approval; they are intended merely to secure a convenience.
An illustration of the political nature of recognition may be found in United
States history. In the 19th century, Daniel Webster said that nations have the
discretion to govern themselves and to choose which agency to represent them. In
1792, after the French Revolution, Jefferson said that the US would deal with any
government effectively in power.
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SUBJECTS OF INTERNATIONAL LAW: STATES
81
In subsequent years, however, the US required more than just effective
control by the incoming government. Woodrow Wilson said that the US should not
deal with governments set up in violation of their constitution. After the
Communists took over in China in 1949, Truman said that the US would not deal
with a government imposed by a foreign power. When Chinese troops entered the
Korean war, Dulles said that the policy of the United States was to recognize de
facto governments when (1) they control government, (2) are not confronted with
active resistance in the country, and (3) are willing to live up to international
obligations.
When is recognition terminated? The answer is fairly simple: recognition of
a regime is terminated when another regime is recognized. For as long as a state
continues to meet the qualifications of statehood, its status as a state cannot be
“derecognized.” When the United States recognized the government of China in
1979, it derecognized the government of Taiwan, but continued with commercial,
cultural, and other non-governmental relationships.
Succession of States.
Succession or Continuity
States do not last forever. The issue of state succession can arise in different
circumstances. Existing sovereignties can disappear under different circumstances.
New political sovereigns may arise as the result of decolonization, dismemberment
of an existing state, secession, annexation and merger. In each of these cases an
existing sovereignty disappears either in whole or in part and a new one arises thus
giving rise to questions of succession to rights and obligations.
The international law and practice of states on this subject have been
confused. Some on one extreme suggest that the new state succeeds to no rights or
obligations of the predecessor state but begins with a tabula rasa. Others on
another extreme hold that the successor state assumes all the obligations and enjoys
all the rights of the predecessor. Others hold that succession has varying effects on
state rights and duties.
The issue of continuity is also particularly problematic. When a new state
arises, what is its relation to the predecessor state? Is it completely distinct from the
predecessor state or is it a continuation of the
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
predecessor state? There are cases when there are no problems. For instance, the
present India is a continuation of the former British India while Pakistan is a
completely new state. But there are also very problematic situations. Take for
instance the Soviet Union and the Yugoslavia.
After the USSR was dissolved, Russia claimed to be a continuation of the
USSR and therefore entitled to membership not only in the UN but also in the
Security Council. Russia’s claim was supported by the Decision of the Council of
Heads of State of the Commonwealth of the Independent States on December 21,
1991. But the Baltic states of Estonia, Latvia and Lithuania, which had been
annexed by the Soviet Union in 1940, declared their independence. The European
Community adopted a resolution welcoming the restoration of the sovereignty of
the Baltic states in 1991. So did the United States.
The problem of Yugoslavia, however, is more complicated. The mother state
was the Socialist Federal Republic of Yugoslavia. Over a period of several months,
this state collapsed and the component republics declared independence. Majorities
in Bosnia and Herzegovina voted for independence in a referendum and this was
recognized by the Arbitration Commission of Yugoslavia. The European
Community recognized Slovenia, Croatia and Bosnia and these were admitted to
the United Nations. Serbia and Montenegro, however, formed a new state called the
Federal Republic of Yugoslavia and maintained that they were the continuation of
the former mother state. This claim was opposed by the other republics and by the
international community. In 1992, the Security Council even declared that “the state
formerly known as the Socialist Federal Republic of Yugoslavia has ceased to
exist.”
In November 2000, Yugoslavia applied for membership in the UN thereby
abandoning its claim to continuity of SFRY.
Succession of States
The issues on succession can be succession to territory, to treaties, to
property and contracts. The rules may be summarized thus:5
When a state succeeds another state with respect to particular territory,
the capacities, rights and duties of the predecessor
’The summary given here is taken from THIRD RESTATEMENT OF FOREIGN RELATIONS LAW.
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SUBJECTS OF INTERNATIONAL LAW: STATES
state with respect to that territory terminate and are assumed by the
successor state.
As to state property, subject to agreement between predecessor
and successor states, title passes as follows:
(a) where part of the territory of a state becomes territory of
another state, property of the predecessor state located in that territory
passes to the successor state;
(b) where a state is absorbed by another state, property of the
absorbed state, wherever located, passes to the absorbing state;
(c) where part of a state becomes a separate state, property of
the predecessor state located in the territory of the new state passes to
the new state.
With respect to public debts, subject again to agreement
between the states concerned, responsibility for the public debt of the
predecessor, and rights and obligations under its contracts, remain with
the predecessor state, except as follows:
(a) where part of the territory of a state becomes territory of
another state, local public debt, and the rights and obligations of the
predecessor state under contracts relating to that territory, are
transferred to the successor state;
(b) where a state is absorbed by another state, the public debt,
and rights and obligations under contracts of the absorbed state, past to
the absorbing state;
(c) where part of a state becomes a separate state, local public
debt, and rights and obligations of the predecessor state under contracts
relating to the territory of the new state, pass to the new state.
With respect to treaties (already touched on in the Chapter on
Treaties), the Vienna Convention is followed. The rules are:
(1) When part of the territory of a state becomes territory of
another state, the international agreements of the predecessor state
cease to have effect in respect of the territory and the international
agreements of the successor state come into force there. This reflects
the “moving treaty rule” or “moving boundaries rule.” If X has a treaty
with Y, and part of Y is transferred to Z, X may seek relief from treaty
obligation under “rebus sic stantibus.’’
(2) When a state is absorbed by another state, the international agreements of the absorbed state are terminated and the
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international agreements of the absorbing state become applicable to
the territory of the absorbed state. Third states may appeal to rebus sic
stantibus.
(3) When a part of a state becomes a new state, the new state
does not succeed to the international agreements to which the
predecessor state was party, unless, expressly or by implication, it
accepts such agreements and the other party or parties thereto agree or
acquiesce. This applies the “clean slate theory.”
(4) Pre-existing boundary and other territorial agreements
continue to be binding notwithstanding. This is the uti possidetis rule.
The consequences of the re-unification of West and East Germany were
governed by the German Unification Treaty of 1990. The special case of
Hongkong’s return to China in 1997 were governed by the 1984 Sino-British Joint
Declaration on the Question of Hongkong.
Fundamental Rights of States.
Independence
Independence is the capacity of a state to provide for its own well-being and
development free from the domination of other states, providing it does not impair
or violate their legitimate rights. As a right, independence means the right to
exercise within its portion of the globe, to the exclusion of others, the functions of a
state.6 But restrictions upon a state’s liberty arising either from customary law or
from treaties do not deprive a state of independence.
Flowing from independence are certain other rights such as jurisdiction over
its territory and permanent population, the right to self defense and the right of
legation. Independence also involves the duty not to interfere in the internal affairs
of other states.
Equality
Equality obviously does not mean equality in political or economic power.
Rather, it means equality of legal rights irrespective of the size or power of the
state. Within the General Assembly, the doctrine
6
Island of Las Palmas Arbitration [ 1928].
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85
means one state, one vote. The UN Charter, Article 2, provides that “the
Organization is based on the principle of the sovereign equality of all its
Members.” Hence, each has one vote in the General Assembly and every state may
aspire for the offices in the various organs of the UN.
Peaceful co-existence
This right has been developing over the past twenty years. The theory was
elaborated in 1954 as the Five Principles of Co-existence by India and China and
includes mutual respect for each other’s territorial integrity and sovereignty, mutual
non-aggression, non interference in each other’s affairs and the principle of
equality. This has also been expressed in other documents such as the 1970
Declaration on Principles of International Law Friendly Relations and Cooperation
Among States.
Some Incomplete Subjects.
Protectorates. Protectorates are largely of historical importance. They are
dependent states which have control over their internal affairs but whose external
affairs are controlled by another state. They were sometimes referred to as
autonomous states, vassal states, semisovereign or dependent states
Federal state. This is a union of previously autonomous entities. Various
arrangements are possible. One arrangement may involve placing full authority in a
central organ while another arrangement might lodge authority in the individual
entities to the detriment of the central organ. The central organ will have personality
in international law; but the extent of international personality of the component
entities can be a problem.
Mandated and Trust Territories. Mandated territories were territories placed
by the League of Nations under one or other of the victorious allies of World War I.
The mandate system was replaced by the trusteeship system after World War II
under the Trusteeship Council. For instance, the Carolines, Marianas and Marshall
Islands were placed under the trusteeship of the United States. These have been in
the process of evolution and self-determination since 1986.
Taiwan. Taiwan seems to be a non-state territory which de jure is part of
China. But it is too affluent and strategically located to be over
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looked by international actors. It is interesting that when Taiwan sought accession
to the GATT treaty it did not do so as a state but as part of a “customs territory.”
The Sovereign Order of Malta. There was a time when the order had
sovereignty over Malta. This has since been lost. But the Italian Court of Cassation
in 1935 recognized its international personality. Currently, it has diplomatic
relations with over forty states.
The Holy See and Vatican City. In 1929, the Lateran Treaty was signed with
Italy which recognized the state of the Vatican City and “the sovereignty of the
Holy See in the field of international relations as an attribute that pertains to the
very nature of the Holy See, in conformity with its traditions and the demands of its
mission in the world.” It has no permanent population.
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OTHER SUBJECTS OF INTERNATIONAL LAW
States are the dominant subjects of international law. But there are others:
international organizations, insurgents, liberation movements, and, in a more
limited way, individuals.
1.
International Organizations.
Establishment, international personality, immunity
In the matter of international organizations, there are three general questions
that need to be discussed. First, how do they come into existence? Second, do they
have international personality? Third, do they enjoy any kind of immunity?
An international organization is an organization that is set up by treaty
among two or more states. It is different from non-governmental organizations
(NGO) which are set up by private persons. The constituent document of
international organizations therefore is a treaty. For this reason, only states are
members of international organizations. As the ICJ put it in its Advisory Opinion
on the Use of Nuclear Weapons (1996) about the World Health Organization:
The Court observes that in order to delineate the field of activity
or the area of competence of an international organization, one must
refer to the relevant rules of the organization and, in the first place, to
its constitution. From a formal standpoint, the constituent instruments
of international organizations are multilateral treaties, to which the
well-established rules of treaty interpretation apply.
But they are also treaties of a particular type; their object is to create
new subjects of law endowed with a certain autonomy, to which the
parties entrust the task of realizing common goals.
Such treaties can raise specific problems of interpretation owing, inter
alia, to their character which is conventional and at the same
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time institutional; the very nature of the organization created, the
objectives which have been assigned to it by its founders, the
imperatives associated with the effective performance of its functions,
as well as its own practice, are all elements which may deserve special
attention when the time comes to interpret these constituent treaties.
That international organizations have international personality was
established in the oft-quoted Reparations Case (ICJ Advisory Opinion, 1949)
involving the international personality of the United Nations. The question raised
was formulated thus:
“I. In the event of an agent of the United Nations in the
performance of his duties suffering injury in circumstances involving
the responsibility of a State, has the United Nations, as an
Organization, the capacity to bring an international claim against the
responsible de jure or de facto government with a view to obtaining
the reparation due in respect of the damage caused
(a) to the United Nations, (b) to the victim or to persons entitled
through him?
The Court answered the question after rephrasing it:
Do the provisions of the Charter relating to the functions of the
Organization imply that the latter is empowered to assure its agents
limited protection? These powers, which are essential to the
performance of the functions of the Organization, must be regarded as
a necessary implication arising from the Charter. In discharging its
functions, the Organization may find it necessary to entrust its agents
with important missions to be performed in disturbed parts of the
world. These agents must be ensured of effective protection. It is only
in this way that the agent will be able to carry out his duties
satisfactorily. The Court therefore reaches the conclusion that the
Organization has the capacity to exercise functional protection in
respect of its agents. The situation is comparatively simple in the case
of Member States, for these have assumed various obligations towards
the Organization.
But what is the situation when a claim is brought against a State
which is not a Member of the Organization? The Court is of opinion
that the Members of the United Nations created an entity possessing
objective international personality and not merely personality
recognized by them alone. As in the case of Question 1(a), the Court
therefore answers Question 1(b) in the affirmative.
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The Court had to answer the question because the UN Charter is silent about
the organization’s international personality. In the case of other organizations, the
charter itself might specifically endow it with international personality. But if it
does not, possession of international personality may be implied from the functions
of the organization, as in the case of the UN.
Although international organizations have personality in international law,
their powers and privileges are by no means like those of states. Their powers and
privileges are limited by the constituent instrument that created them. To quote
again from the Advisory Opinion on the Use of Nuclear Weapons cited supra:
The Court goes on to point out that international organizations
are subjects of international law which do not, unlike States, possess a
general competence. International organizations are governed by the
“principle of speciality," that is to say, they are invested by the States
which create them with powers, the limits of which are a function of
the common interests whose promotion those States entrust to them.
The powers conferred on international organizations are
normally the subject of an express statement in their constituent
instruments. Nevertheless, the necessities of international life may
point to the need for organizations, in order to achieve their objectives,
to possess subsidiary powers which are not expressly provided for in
the basic instruments which govern their activities.
It is generally accepted that international organizations can exercise
such powers, known as “implied” powers.
Immunities
Because they enjoy international personality, they can also be given the
immunities and privileges of international persons. Their immunities, however,
have for basis not sovereignty, as it is for states, but the need for the effective
exercise of their functions.
In the case of the United Nations, the immunities are spelled out in Article
105 of the UN Charter:
1.
The Organization shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary for the fulfillment
of its purposes.
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2.
Representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such privileges and
immunities as are necessary for the independent exercise of their functions in
connection with the Organization.
3.
The General Assembly may make recommendations with a
view to determining the details of the application of paragraphs 1 and 2 of
this Article or may propose conventions to the Members of the United
Nations for this purpose.
This has been supplemented by the General Convention on the Privileges
and Immunities of the United Nations (1946) and by the Convention and Privileges
of Specialized Agencies (1947).
There is no common law doctrine recognizing the immunity of international
organizations. Their immunities come from the conventional instrument creating
them a clear example of the grant of immunity is the 1946 General Convention on
the Privileges and Immunities of the United Nations.
The Philippine Court has affirmed the immunity of other international
organization in International Catholic Migration Commission v. Calleja,1
Southeast Asian Fisheries Development Center v. Acosta, and Lasco v. United
Nations Revolving Fund for Natural Resources Exploration?
A curious case, however, is the case of Kapisanan ng mga Manggagawa v.
The International Rice Research Institute (IRRI) decided jointly with the
International Catholic Migration case. IRRI was created not by a treaty but by a
Memorandum of Agreement between the Philippine Government on the one hand
and the Rockefeller and Ford Foundations, two private organizations. It is therefore
not an international organization. Initially, IRRI was organized and registered with
the Securities and Exchange Commission as a private corporation subject to all
laws and regulations. However, by virtue of Pres. Decree No. 1620, promulgated on
19 April 1979, IRRI was granted the status, prerogatives, privileges and immunities
of an international organization. The Supreme Court has consistently recognized
the immunity granted
'G.R. No. 85750, September 28,1990.
’G.R. Nos. 109095-109107, February
23,1995.
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91
to IRRI declaring it to be on the same footing as the International Catholic
Migration Commission.
The Court recognized that the Catholic Migration Commission was a
“specialized agency” under the Charter of the United Nations. Likewise, without
giving the reason why, it recognized the IRRI as an international organization. The
Court said:
The grant of immunity from local jurisdiction to ICMC and
IRRI is clearly necessitated by their international character and
respective purposes. The objective is to avoid the danger of partiality
and interference by the host country in their internal workings.
The exercise of jurisdiction by the Department of Labor in these
instances would defeat the very purpose of immunity, which is to
shield the affairs of international organizations, in accordance with
international practice, from political pressure or control by the host
country to the prejudice a member States of the organization, and to
ensure the unhampered performance of their functions.
The end result of the protective blanket that has been wrapped around IRRI is
the efforts of employees to seek redress for violations of labor rights have been
repeatedly rebuffed by the Supreme Court. For all practical purposes, they are
denied the protection given by the Constitution in Article XIII, Section 3
guaranteeing full protection for labor.
There have also been two cases involving the immunity of the Asian
Development Bank (ADB). The bank’s Charter is a treaty to which the Philippines
is a party. The first case was Department of Foreign Affairs v. National Labor
Relations Board,3 where the issue was whether the National Labor Relations
Commission could assume jurisdiction over a case of illegal dismissal against
ADB. In upholding the immunity of the ADB, the Court appealed to the provisions
of the ADB’s Charter:
Article 50(1) of the Charter provides:
The Bank shall enjoy immunity from every form of legal
process, except in cases arising out of or in connection with the
exercise of its powers to borrow money, to guarantee obligations, or to
buy and sell or underwrite the sale of securities.
’G.R.No. 113191, September 18,1996.
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Similar provisions are found in the Headquarters Agreement. Thus, its
Section 5 reads:
The Bank shall enjoy inununity from every form of legal
process, except in cases arising out of, or in connection with, the
exercise of its powers to borrow money, to guarantee obligations, or to
buy and sell or underwrite the sale of securities.
The Court concluded:
The above stipulations of both the Charter and Headquarters
Agreement should be able, nay well enough, to establish that, except in
the specified cases of borrowing and guarantee operations, as well as
the purchase, sale and underwriting of securities, the ADB enjoys
immunity from legal process of every form....
The Court reiterated what it had said in World Health Organization v.
Aquino.*
It is a recognized principle of international law and under our
system of separation of powers that diplomatic immunity is essentially
a political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where
the plea of diplomatic immunity is recognized and affirmed by the
executive branch of the government.... it is then the duty of the courts
to accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, ... or other officer acting under
this direction. Hence, in adherence to the settled principle that courts
may not so exercise their jurisdiction ... as to embarrass the executive
arm of the government in conducting foreign relations, it is accepted
doctrine that ‘in such cases the judicial department of government
follows the action of the political branch and will not embarrass the
latter by assuming an antagonistic jurisdiction.
The World Health case was an original action for certiorari and prohibition
to set aside respondent judge’s refusal to quash a search warrant issued by him at
the instance of Constabulary officers for the search and seizure of the personal
effects of an official of the World Health Organization.
4
G.R. No. L-35131, November 29,1972.
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93
The second case was Jeffrey Liang (Hue Feng) v. People .5 The case
involved a criminal complaint against Jeffrey Liang, an ADB official, for grave oral
defamation. Appeal was made to the political character of Jeffrey Liang as an agent
of international organization. But the Court ruled that the immunity granted to
officers and staff of the ADB was not absolute; but limited to acts performed in an
official capacity and could not cover the commission of a crime such as slander or
oral defamation in the name of official duty.
The United Nations: Structure and Powers
The principal international organization is the United Nations. It came into
being on October 24,1945, when the UN Charter came into force. The membership
now includes almost all the world’s independent nations. Admission to membership
is governed by Article 4 which says:
The UN is a universal organization charged with peacekeeping
responsibilities, the development of friendly relations among nations,
the achievement of international cooperation in solving international
problems of an economic, social, cultural and humanitarian character,
and the promotion of human rights and fundamental freedoms for all
human beings without discrimination. Article 1 of the Charter says that
the UN can include “all other peace-loving states which accept the
obligations contained in the present Charter and, in the judgment of the
Organization, are able and will to carry out these obligations.” As new
independent nations arise, the number of members continue to grow.
The Purposes of the United Nations are:
1.
To maintain international peace and security, and to that
end: 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, and to bring about by
peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace;
2.
To develop friendly relations among nations based on
respect for the principle of equal rights and self-determination
5
G.R. No. 125865, March 26,2001.
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of peoples, and to take other appropriate measures to strengthen
universal peace;
3.
To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian
character, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race,
sex, language, or religion; and
4.
To be a center for harmonizing the actions of nations in
the attainment of these common ends.
The UN, however, is enjoined against intervening in matters which are
“essentially within the domestic jurisdiction” of any state. Article 2(7) says:
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 VII.
In the hierarchy of international organizations, the UN occupies a position of
preeminence. Article 103 says that “in the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and
their obligations under any other international agreement, their obligations under
the present Charter shall prevail.” This clause is known as the “international
constitutional supremacy clause.”
The principal organs of the UN are the General Assembly, the Security
Council, the Economic and Social Council (ECOSOC), the Trusteeship Council,
the International Court of Justice (ICJ), and the Secretariat.
General Assembly
In the General Assembly, all members are represented. It has plenary powers
in the sense that it “may discuss any question or any matters within the scope of the
... Charter.” (Article 10)
The GA distinguishes between “important questions” and “other questions.”
Important questions are decided by a two-thirds majority of the members voting
and present. “Other questions” require only a
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95
majority. The Charter identifies what the “important questions” are and the GA
may, by a majority vote, identify other important questions. (Article 18[3])
Security Council
The Security Council has “primary responsibility for the maintenance of
international peace and security.” (Article 24[1]) There are 15 member states, five
of them permanent (China, France, Russia [in place of the former USSR], United
Kingdom and the US). The others are elected for two year terms in accordance with
equitable geographic representation.
The Security Council distinguishes between “procedural matters” and “all
other matters.” Matters that are not procedural require nine affirmative votes,
including the “concurring votes of the permanent members.” (Article 27[3]) But
since the Charter does not specify what matters are procedural, the Council practice
is that a decision on whether a matter is procedural or not also requires the
concurrence of the permanent members. Hence, a double veto by the permanent
members is possible. And an abstention is considered a veto.
ECOSOC
The ECOSOC has 54 member states elected for three year terms. It has a
large number of subsidiary organs, among them the UN Commission on Human
Rights and the Commission on the Status of Women.
Trusteeship Council
The Trusteeship Council supervises non-self governing territories. Its
jurisdiction has already become very limited. Palau was the last entity to be under
the Council. The Council suspended operations after Palau became independent on
1 October 1994.
Secretariat
The Secretariat “shall comprise a Secretary General and such staff as the
Organization may require.” (Article 97) The Secretary General is elected to a five
year term by the General Assembly upon the recommendation of the Security
Council, subject to veto power. He is the chief administrator of the organization and
has the power to “bring to the attention of the Security Council any matter which in
his opinion
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may threaten the maintenance of international peace and security.” (Article 99)
International Court of Justice
The International Court of Justice is the principal judicial organ of the UN.
This will be treated in another chapter.
Other Agencies
Aside from the main organs of the UN, there are also specialized agencies.
Some of these are: the United Nations Educational, Scientific and Cultural
Organization (UNESCO). The International Civil Aviation Organization (ICAO),
the World Health Organization (WHO), the Food and Agricultural Organization
(FAO), the World Bank and the International Monetary Fund (IMF).
Regional Organizations: ASEAN
Regional organizations also play an important role. But they are neither
organs nor subsidiary organs of the UN. They are autonomous international
organizations having an institutional affiliation with the UN by concluding
agreements with the UN. (Article 5). They are international institutions created by
international agreements for the purpose of dealing with regional problems in
general or with specific matters be they economic, military or political.
The regional organization of South East Asian nations is the ASEAN. It was
established on 8 August 1967 in Bangkok, Thailand, with the signing of the
Bangkok Declaration by the five original Member Countries namely Indonesia,
Malaysia, Philippines, Singapore and Thailand.
Brunei Darussalam joined the Association on 8 January 1984. Vietnam
became the seventh member of ASEAN on 28 July 1995. Laos and Myanmar were
admitted into ASEAN on 23 July 1997. Cambodia also became a member in 1999.
The Bangkok Declaration united the ASEAN Member Countries in a joint
effort to promote economic cooperation and the welfare of the people in the region.
The Bangkok Declaration set out guidelines for ASEAN’s activities and defined the
aims of the organization.
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The ASEAN nations came together with three main objectives in mind: to
promote the economic, social and cultural development of the region through
cooperative programs; to safeguard the political and economic stability of the
region against big power rivalry; and to serve as a forum for the resolution of intraregional differences.
The ASEAN Declaration states that the aims and purposes of the Association
are: (1) to accelerate economic growth, social progress and cultured development in
the region and (2) to promote regional peace and stability through abiding respect
for justice and the rule of law in the relationship among countries in the region and
adherence to the principles of the United Nations Charter.
The ASEAN Vision 2020, adopted by the ASEAN Leaders on the 30th
Anniversary of ASEAN, agreed on a shared vision of ASEAN as a concert of
Southeast Asian nations, outward looking, living in peace, stability and prosperity,
bonded together in partnership in dynamic development and in a community of
caring societies.
In 2003, the ASEAN Leaders resolved that an ASEAN Community shall be
established comprising three pillars, namely, ASEAN Security Community,
ASEAN Economic Community and ASEAN Socio- Cultural Community.
ASEAN Member Countries have adopted the following fundamental
principles in their relations with one another, as contained in the Treaty of Amity
and Cooperation in Southeast Asia (TAC):
— mutual respect for the independence, sovereignty, equality, territorial
integrity, and national identity of all nations;
— the right of every State to lead its national existence free from
external interference, subversion or coercion;
— non-interference in the internal affairs of one another;
— settlement of differences or disputes by peaceful manner;
— renunciation of the threat or use of force; and
— effective cooperation among themselves.
All ten members have already ratified the Charter and it will take effect upon
the deposit of all ratifications.
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2.
Insurgents.
Protocol II
The first and only international agreement exclusively regulating the conduct
of parties in a non-international armed conflict is the 1977 Protocol II to the 1949
Geneva Conventions. It “develops and supplements Article 3, infra, common to the
Geneva Conventions of 12 August 1949 without modifying its existing conditions
or application.” A non-international armed conflict covered by this expanded
guarantee is defined in Article I. They are armed conflicts
which take place in the territory of a High Contracting Party between
its armed forces and dissident armed forces or other oiganized 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.
Article I further adds that the “Protocol shall not apply to situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not being armed conflicts.” This is
true even if the armed forces of the territory may have been called upon to suppress
the disorder.
It will thus be seen that Protocol II sets down requirements for what it calls
“material field of application “First, the armed dissidents must be under
responsible command; second, they must exercise such control over a part of its
territory as to enable them to carry out sustained and concerted military operations
and to implement this Protocol.” The Protocol thus sets a very high threshold for
applicability, higher than the threshold for the applicability of Protocol I which
does not require control over territory. For this reason, in the conflict between the
Philippine government and the National Democratic Front, the Philippine
government has been able to maintain consistently that the NDF and its New
People’s Army have not crossed this threshold and that therefore what applies to
them is Common Article 3 and not Protocol II. This means that they do not have
the status of subject of international law. The same can be said of the MNLF and
MILF in Mindanao.
Insurgent groups which satisfy the material field of application of Protocol II
may be regarded as “para-statal entities possessing definite if limited form of
international personality.” State practice indicates
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two specific attributes of such “personality.” First, they are recognized as having
belligerent status against the de jure government. Other states are therefore
required to maintain neutrality regarding them. Second, they are seen as having
treaty making capacity.
Common Article 3
Traditionally, international law on armed conflict does not apply to internal
conflicts such as civil wars or rebellions. In 1949, however, it was decided that
minimum humanitarian protection should also be promulgated to cover internal
conflict. For this reason, each of the four Geneva Conventions contains a common
Article 3 which says:
Art. 3. In the case of armed conflict not of an international
character occurring in the territory of one of the High Contracting
Parties, each Party to the conflict shall be bound to apply, as a
minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those
placed hors de combat by sickness, wounds, detention, or any other
cause, shall in all circumstances be treated humanely, without any
adverse distinction founded on race, color, religion or faith, sex, birth
or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at
any time and in any place whatsoever with respect to the abovementioned persons:
(a) violence to life and person, in particular murder of
all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees
which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International
Committee of the Red Cross, may offer its services to the Parties to the
conflict.
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The Parties to the conflict should further endeavor to bring into
force, by means of special agreements, all or part of the other
provisions of the present Convention.
The application of the preceding provisions shall not affect the
legal status of the Parties to the conflict.
The last sentence means that the application does not convert the conflict into
an international one and therefore does not preclude the possibility that any
participant in the conflict may be prosecuted for treason. What this means is that,
although rebels have the protection of Common Article 3, they do not thereby gain
the status of subjects of international law unless they satisfy the “material field of
application” of Protocol II.
3.
National Liberation Movements.
National liberation movements are organized groups fighting in behalf of a
whole people for freedom from colonial powers. According to the First Protocol of
the 1977 Geneva Convention, they are “peoples fighting against colonial
domination and alien occupation and against racist regimes in the exercise of their
right of self-determination, as enshrined in the Charter of the United Nations.” They
first arose in Africa and then in Asia. Many of these movements succeeded in their
struggle and acquired statehood. Thus, liberation movements are now on the wane.
What are their characteristics. First, they can be based within the territory
which they are seeking to liberate or they might find a base in a friendly country.
Control of territory, therefore, is not a necessary factor. Their legitimacy rather
comes from their goal: to free themselves from colonial domination, or a racist
regime or foreign occupation. Briefly, their goal is self-determination.
Although control over territory and people is not essential to their legitimacy,
the ultimate goal of controlling a definite territory is necessary for them to be
recognized as international subjects. Besides, they must have an organization
capable of coming into contact with other international organizations. With these
characteristics, they can claim international status. As Article 96, of the above
Convention says:
The authority representing a people engaged against a High Con tracting
Party in an armed conflict of the type referred to in Article 1,
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paragraph 4, may undertake to apply the Conventions and this Protocol in relation
to that conflict by means of a unilateral declaration addressed to the depositary.
Such declaration shall, upon its receipt by the depositary, have in relation to that
conflict the following effects:
(a) The Conventions and this Protocol are brought into force for the
said authority as a Party to the conflict with immediate effect;
(b) The said authority assumes the same rights and obligations as
those which have been assumed by a High Contracting Party to the
Conventions and this Protocol; and
(c) The Conventions and this Protocol are equally binding upon all
Parties to the conflict.
4.
Individuals.
In the early development of international law human beings were exclusively
under the control of states. In international law they were objects or at best
“beneficiaries” of international law. With the greater global awareness of human
rights individuals have now come to be recognized as possessing albeit limited
rights and obligations in international law.
Among the obligations of individuals are those arising from the regulation of
armed conflicts. Violation of these rules can place individuals under criminal
responsibility. There are also rules on international crimes to which individuals are
subject such as crimes against humanity, genocide, aggression, and terrorism.
When individual rights are violated, however, individuals still have to rely on
the enforcement power of states. But some treaties have provided for the right of
individuals to petition international bodies alleging that a contracting state has
violated some of their human rights.
Antonio Cassese sums up the current situation thus:6
In sum, in contemporary international law individuals possess
international legal status. They have a few obligations deriving from
customary international law. In addition, procedural
‘Antonio Cassese, INTERNATIONAL LAW 85, Oxford
University Press, 2001.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
rights enure to the benefit of individuals not vis-d-vis States, but only
toward the group of States that have concluded treaties, or the
international organizations that have adopted resolutions, envisaging
such rights. Clearly the international legal status of individuals is
unique: they have a lopsided position in the international community.
As far as their international obligations are concerned, they are
associated with all the other members of the international community;
in contrast, they do not possess rights in relation to all members of that
community. Plainly, all States are willing to demand of individuals
respect for some fundamental values, while they are less prepared to
associate them to their international dealings, let alone to grant them
the power to sue States before international bodies. To differentiate the
position of individuals from that of States, it can be maintained that
while States have international legal personality proper, individuals
have a limited locus standi in international law. Furthermore, unlike
States, individual have a limited array of rights and obligations: on this
score, one can speak of a limited legal capacity (in this respect they
can be put on the same footing as other non-State international
subjects: insurgents, international organizations, and national liberation
movements).
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Territory in International Law.
Territory as an element of a state means an area over which a state has
effective control. As the Las Palmas case, infra, shows, control over territory is of
the essence of a state. The exact boundaries might be uncertain, but there should be
a definitive core over which sovereignty is exercised. Acquisition of territory more
precisely means acquisition of sovereignty over territory. Judge Huber in the Las
Palmas case said that “sovereignty over a portion of the surface of the globe is the
legal condition for the inclusion of such portion in the territory of any particular
state.”
Territory includes land, maritime areas, airspace and outer space. The scope
of a state’s jurisdiction over maritime areas will be considered in another chapter.
In this chapter, only land area, air space and outer space will be considered.
Modes of Acquisition of Sovereignty over Territory.
Some of the questions regarding territory are now of historical interest
merely. But how they are acquired is still worth examining. The roots of the law on
territorial sovereignty are traceable to Roman law provisions governing ownership
and possession. Similarly the classification of the different methods of acquiring
territory comes from Roman rules of acquiring property. The traditional modes of
acquisition include discovery and occupation, prescription, cession, conquest and
subjugation, and accretion.
Discovery and Occupation
Occupation is the acquisition of terra nullius, that is, territory which prior to
occupation belonged to no state or which may have been
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abandoned by a prior occupant. There is abandonment when the occupant leaves
the territory with the intention of not returning. In the Western Sahara Case,' the
question was whether Western Sahara, inhabited as it was by organized tribes, was
terra nullius. The ICJ answered the question thus:
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 terra 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 an “occupation” of a “terra nullius” in the proper
sense of these terms. On the contrary, such agreements with local
rulers, whether or not considered as an actual “cession” of the
territory, were regarded as derivative roots of title, and not original
titles obtained by occupation of terra nullius.
In the present instance, the information furnished to the Court
shows that at the time of colonization Western Sahara was inhabited
by peoples which, if nomadic, were socially and politically organized
into tribes and under chiefs competent to represent them.
Discovery of terra nullius, moreover, is not enough to establish sovereignty.
It must be accompanied by effective control. This is the teaching of the Las Palmas
Case.
THE ISLAND OF PALMAS
Perm. Ct. Arb. (1928)
(Abridged)
Background. Palmas (also referred to as Miangas) is an
island about two miles long by three fourths of a mile wide
which at the time of this case had a population of about 750 and
was of little strategic or economic value. It sits
'Advisory Opinion, ICJ, 1975.
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about halfway between the islands of Mindanao in the Philippines and Nanusa in the Netherlands Indies. It is, however,
within the boundaries of the Philippines as defined by Spain and
thus ceded to the United States in 1898. In 1906 an American
General, Leonard Wood, visited Palmas and discovered that the
Netherlands also claimed sovereignty over the island. An
agreement was signed on January 23, 1925, between the United
States and the Netherlands to submit the dispute to binding
arbitration. The Swiss jurist, Max Huber, was the selected
arbitrator acting for the Permanent Court of Arbitration. Huber
was charged to determine “whether the Island of Palmas” (or
Miangas) in its entirety forms a part of territory belonging to the
United States of America or of Netherlands territory.
HUBER, Arbitrator:
The United States, as successor to the rights of Spain over the
Philippines, bases its title in the first place on discovery. The existence
of sovereignty thus acquired is, in the American view, confirmed not
merely by the most reliable cartographers and authors, but also by
treaty, in particular by the Treaty of Munster, of 1648, to which Spain
and the Netherlands are themselves Contracting Parties. As, according
to the same argument, nothing has occurred of a nature, in
international law, to cause the acquired title to disappear, this latter
title was intact at the moment when, by the Treaty of December 10th,
1898, Spain ceded the Philippines to the United States. In these
circumstances, it is, in the American view, unnecessary to establish
facts showing the actual display of sovereignty precisely over the
Island of Palmas (or Miangas). The United States Government finally
maintains that Palmas (or Miangas) forms a geographical part of the
Philippine group and in virtue of the principle of contiguity belongs to
the Power having the sovereignty over the Philippines. ...
Sovereignty in the relation between States signifies
independence. Independence in regard to a portion of the globe is the
right to exercise therein, to the exclusion of any other State, the
functions of a State. The development of the national organization of
States during the last few centuries and, as a corollary, the
development of international law, have established this principle of the
exclusive competence of the State in regard to its own territory in such
a way as to make it the point of departure in settling most questions
that concern international relations. ...
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Titles of acquisition of territorial sovereignty in present- day
international law are either based on an act of effective apprehension,
such as occupation or conquest, or, like cession, presuppose that the
ceding and the cessionary Power or at least one of them, have the
faculty of effectively disposing of the ceded territory. In the same way
natural accretion can only be conceived of as an accretion to a portion
of territory where there exists an actual sovereignty capable of
extending to a spot which falls within its sphere of activity. It seems
therefore natural that an element which is essential for the constitution
of sovereignty should not be lacking in its continuation. So true is this,
that practice, as well as doctrine, recognizes — though under different
legal formulae and with certain differences as to the conditions
required — that the continuous and peaceful display of territorial
sovereignty (peaceful in relation to other States) is as good as a title.
The growing insistence with which international law, ever since the
middle of the 18th century, has demanded that the occupation shall be
effective would be inconceivable, if effectiveness were required only
for the act of acquisition and not equally for the maintenance of the
right....
Territorial sovereignty, as has already been said, involves the
exclusive right to display the activities of a state. This right has as
corollary a duty: the obligation to protect within the territory the rights
of other states, in particular their right to integrity and inviolability in
peace and in war, together with the rights which each state may claim
for its nationals in foreign territory. Without manifesting its territorial
sovereignty in a manner corresponding to circumstances, the state
cannot fulfill this duty. Territorial sovereignty cannot limit itself to its
negative side, i.e., to excluding the activities of other states; for it
serves to divide between nations the space upon which human
activities are employed, in order to assure them at all points the
minimum of protection of which international law is the guardian....
The principle that continuous and peaceful display of the
functions of state within a given region is a constituent element of
territorial sovereignty is not only based on the conditions of the
formation of independent states and their boundaries (as shown by the
experience of political history) as well as on an international
jurisprudence and doctrine widely accepted; this principle has further
been recognized in more than one federal state, where a jurisdiction is
established in order to apply, as need arises, rules of international law
to the interstate relations of the states members.
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Manifestations of territorial sovereignty assume, it is true,
different forms, according to conditions of time and place. Although
continuous in principle, sovereignty cannot be exercised in fact at
every moment on every point of territory. The intermittence and
discontinuity compatible with the maintenance of the right necessarily
differ according as inhabited or uninhabited regions are involved, or
regions enclosed within territories in which sovereignty is
incontestably displayed or again regions accessible from, for instance,
the high seas. It is true that neighboring states may by convention fix
limits to their own sovereignty, even in regions such as the interior of
scarcely explored continents where such sovereignty is scarcely
manifested, and in this way each may prevent the other from any
penetration of its territory. The delimitation of hinterland may also be
mentioned in this connection....
The title alleged by the United States of America as constituting
the immediate foundation of its claim is that of cession, brought about
by the Treaty of Paris, which cession transferred all rights of
sovereignty which Spain may have possessed in the region indicated in
Article III of the said Treaty and therefore also those concerning the
Island of Palmas (or Miangas).
It is evident that Spain could not transfer more rights than she
herself possessed....
It is recognized that the United States communicated, on
February 3rd, 1899, the Treaty of Paris to the Netherlands, and that no
reservations were made by the latter in respect of the delimitation of
the Philippines in Article III. The question whether the silence of a
third Power, in regard to a treaty notified to it, can exercise any
influence on the rights of this Power, or on those of the Powers
signatories of the treaty, is a question the answer to which may depend
on the nature of such rights. Whilst it is conceivable that a
conventional delimitation duly notified to third Powers and left
without contestation on their part may have some bearing on an
inchoate title not supported by any actual display of sovereignty, it
would be entirely contrary to the principles laid down above as to
territorial sovereignty to suppose that such sovereignty could be
affected by the mere silence of the territorial sovereign as regards a
treaty which has been notified to him and which seems to dispose of a
part of his territory....
In any case for the purpose of the present affair it may be
admitted that the original title derived from discovery belonged to
Spain....
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
If the view most favorable to the American arguments is
adopted — with every reservation as to the soundness of such view —
that is to say, if we consider as positive law at the period in question
the rule that discovery as such, i.e., the mere fact of seeing land,
without any act, even symbolical, of taking possession, involved ipso
jure territorial sovereignty and not merely an “Inchoate title,” a jus ad
rem, to be completed eventually by an actual and durable taking of
possession within a reasonable time, the question arises whether
sovereignty yet existed at the critical date, i.e., the moment of
conclusion and coming into force of the Treaty of Paris.
As regards the question which of different legal systems
prevailing at successive periods is to be applied in a particular case
(the so-called inter-temporal law), a distinction must be made between
the creation of rights and the existence of rights. The same principle
which subjects the act creative of a right to the law in force at the time
the right arises, demands that the existence of the right, in other words
its continued manifestation, shall follow the conditions required by the
evolution of law. International law in the 19th century, having regard
to the fact that most parts of the globe were under the sovereignty of
states members of the community of nations, and that territories
without a master had become relatively few, took account of a
tendency already existing and especially developed since the middle
of the 18th century, and laid 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. It seems
therefore incompatible with this rule of positive law that there should
be regions which are neither under the effective sovereignty of a state,
nor without a master, but which are reserved for the exclusive
influence of one state, in virtue solely of a title of acquisition which is
no longer recognized by existing law, even if such a title ever
conferred territorial sovereignty. For these reasons, discovery alone,
without any subsequent act, cannot at the present time suffice to prove
sovereignty over the Island of Palmas (or Miangas); and in so far as
there is no sovereignty, the question of an abandonment properly
speaking of sovereignty by one state in order that the sovereignty of
another may take its place does not arise.
... [E]ven admitting that the Spanish title still existed as
inchoate in 1898 and must be considered as included in the cession
under Article III of the Treaty of Paris, an inchoate title could not
prevail over the continuous and peaceful display of authority
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by another state; for such display may prevail even over a prior,
definitive title put forward by another state. This point will be
considered, when the Netherlands argument has been examined and
the allegations of either party as to the display of their authority can be
compared....
In the last place there remains to be considered title arising out
of contiguity. Although states have in certain circumstances
maintained that islands relatively close to their shores belonged to
them in virtue of their geographical situation, 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 forms the terra firma (nearest continent
or island of considerable size). Not only would it seem that there are
no precedents sufficiently frequent and sufficiently precise in their
bearing to establish such a rule of international law, but the alleged
principle itself 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. The principle of
contiguity, in regard to islands, may not be out of place when it is a
question of allotting them to one state rather than another, either by
agreement between the parties, or by a decision not necessarily based
on law; but as a rule establishing ipso jure the presumption of
sovereignty in favor of a particular state, this principle would be in
conflict with what has been said as to territorial sovereignty and as to
the necessary relation between the right to exclude other states from a
region and the duty to display therein the activities of a state. Nor is
this principle of contiguity admissible 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. This would be
especially true in a case such as that of the island in question, which is
not relatively close to one single continent, but forms part of a large
archipelago in which strict delimitations between the different parts are
not naturally obvious....
It is, however, to be observed that international arbitral
jurisprudence in disputes on territorial sovereignty (e.g., the award in
the arbitration between Italy and Switzerland concerning the Alpe
Craivarola; Lafontaine, Pasicrisie international, pp. 201- 209) would
seem to attribute greater weight to — even isolated
— acts of display of sovereignty than to continuity of territory, even if
such continuity is combined with the existence of natural boundaries....
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
In the opinion of the Arbitrator the Netherlands have succeeded
in establishing the following facts:
a.
The Island of Palmas (or Miangas) Is identical with
an island designated by this or a similar name, which has
formed, at least since 1700, successively a part of two of the
native States of the Island of Sangi (Talautse Isles).
b.
These native States were from 1677 onwards
connected with the East India Company, and thereby with the
Netherlands, by contracts of suzerainty, which conferred upon
the suzerain such powers as would ‘justify his considering the
vassal state as a part of his territory.’
c.
Acts characteristic of state authority exercised
either by the vassal state or by the suzerain Power in regard
precisely to the Island of Palmas (or Miangas) have been
established as occurring at different epochs between 1700 and
1898, as well as in the period between 1898 and 1906.
The acts of indirect or direct display of Netherlands sovereignty
at Palmas (or Miangas), especially in the 18th and early 19th centuries
are not numerous, and there are considerable gaps in the evidence of
continuous display. But apart from the consideration that the
manifestations of sovereignty over a small and distant island, inhabited
only by natives, cannot be expected to be frequent, it is not necessary
that the display of sovereignty should go back to a very far distant
period. It may suffice that such display existed in 1898, and had
already existed as continuous and peaceful before that date long
enough to enable any Power who might have considered herself as
possessing sovereignty over the island, or having a claim to
sovereignty, to have, according to local conditions, a reasonable
possibility for ascertaining the existence of a state of things contrary to
her real or alleged rights....
There is moreover no evidence which would establish any act of
display of sovereignty over the island by Spain or another Power, such
as might counterbalance or annihilate the manifestations of
Netherlands sovereignty. As to third Powers, the evidence submitted to
the Tribunal does not disclose any trace of such action, at least from
the middle of the 17th century onwards. These circumstances, together
with the absence of any evidence of a conflict between Spanish and
Netherlands authorities during more than two centuries as regards
Palmas (or Miangas), are an indirect proof of the exclusive display of
Netherlands sovereignty....
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111
The conditions of acquisition of sovereignty by the Netherlands
are therefore to be considered as fulfilled. It remains now to be seen
whether the United States as successors of Spain are in a position to
bring forward an equivalent or stronger title. This is to be answered in
the negative.
The title of discovery, if it had not already been disposed of by
the Treaties of Munster and Utrecht, would, under the most favorable
and most extensive interpretation, exist only as an inchoate title, as a
claim to establish sovereignty by effective occupation. An inchoate
title however cannot prevail over a definite title founded on continuous
and peaceful display of sovereignty.
The title of contiguity, understood as a basis of territorial
sovereignty, has no foundation in international law....
The Netherlands title of sovereignty, acquired by continuous and
peaceful display of state authority during a long period of time going
probably back beyond the year 1700, therefore holds good....
For these reasons the Arbitrator ... decides that: The Island of
Palmas (or Miangas) forms in its entirety a part of Netherlands
territory.
Effective control, however, is relative and may depend on the nature of the
case — e.g., whether the territory is inhabited or not and how fierce the occupants
are. Where there are two or more claimants to a territory, effective control is also
relative to the strength of claims. (Eastern Greenland Case PCIJ 1933) The
Permanent Court of Justice deciding in favor of Denmark, said:
Before proceeding to consider in detail the evidence submitted
to the Court, it may be well to state that a claim to sovereignty based
not upon some particular act or title such as a treaty of cession but
merely upon continued display of authority, involves two elements
each of which must be shown to exist: the intention and will to act as
sovereign, and some actual exercise or display of such authority.
Another circumstance which must be taken into account by any
tribunal which has to adjudicate upon a claim to sovereignty over a
particular territory, is the extent to which the sovereignty is also
claimed by some other Power. In most of the cases involving claims to
territorial sovereignty which have come before an international
tribunal, there have been two competing claims to the
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sovereignty, and the tribunal has had to decide which of the two is the
stronger. One of the peculiar features of the present case is that up to
1931 there was no claim by any Power other than Denmark to the
sovereignty over Greenland. Indeed, up till 1921, no Power disputed
the Danish claim to sovereignty.
It is impossible to read the records of the decisions in cases as to
territorial sovereignty without observing that in many cases the
tribunal has been satisfied with very little in the way of the actual
exercise of sovereign rights, provided that the other State could not
make out a superior claim. This is particularly true in the case of
claims to sovereignty over areas in thinly populated or unsettled
countries.
Prescription
Prescription is also recognized as a mode of acquiring sovereignty over
territory. Like occupation, however, prescription requires effective control. But
unlike occupation, the object of prescription is not terra nullius. Thus the required
length of effective control is longer than in occupation. Moreover, prescription
might be negated by a demonstrated lack of acquiescence by the prior occupant.
(Las Palmas)
Cession
Cession, or acquisition of territory through treaty, is another mode. Thus the
United States acquired the Philippines through the Treaty of Paris. Sovereignty
over Hong Kong is a more recent example of cession. In the middle of the 19th
century, part of the colony of Hong Kong was ceded in perpetuity to Britain. The
largest section of the colony, the so called New Territories, was merely held under
a lease that was due to expire in 1997. After protracted negotiations, a Joint
Declaration was signed through which the entire territory of Hong Kong would be
given over to the sovereignty of China on July 1,1997. This has already been
accomplished.
It should also be noted, however, that a treaty of cession which is imposed by
a conqueror is invalid. Thus there may be a situation where what prevails is merely
a de facto regime.
Conquest
Conquest was in earlier days the taking possession of a territory through
armed force. For acquisition of conquered territory, it was
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113
necessary that the war had ended either by treaty or by indication that all resistance
had been abandoned. Moreover, the conqueror must have had the intention of
acquiring the territory and not just of occupying it temporarily. For instance, the
U.S. in Germany had no intention of acquiring the territory.
Today conquest as a mode of acquisition is proscribed by international law.
The 1970 Declaration of Principles of International Law Concerning Friendly
Relations and Cooperation among States has this to say: “The territory of a State
shall not be the object of acquisition by another State resulting from the threat or
use of force. No territorial acquisition resulting from the use or threat of force shall
be recognized as legal.”
The latest instance of a response to an attempted conquest was the action
taken against Iraq when it invaded Kuwait.
Accretion and Avulsion
Accretion and avulsion can also lead to sovereignty over territory. This is
sovereignty by operation of nature. Accretion is the gradual increase of territory by
the action of nature; avulsion is a sudden change resulting for instance from the
action of a volcano.
Is contiguity a mode of acquisition?
Because of the closeness of the Spratleys to Philippine territory, it has been
argued that the area belongs to the Philippines by contiguity. The Las Palmas case
is argument against contiguity as a basis for sovereignty when it says: “it is
impossible to show a rule of positive international law to the effect that islands
situated outside the territorial waters should belong to a state from the fact that its
territory forms part of the terra frma.”
Intertemporal Law
Laws on acquisition of territory have changed. Note for instance the changes
on the legality of wars of conquest. Which laws then are applicable to a
controversy? The generally accepted view is that the rules in effect at the time of
the acquisition should be applied.
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Airspace.
Before the First World War, there were those who held that the airspace was
completely free. The outbreak of the First World War brought about the realization
that the use of the air had security implications. Out of this realization came the
approach which considers the air above as an extension of the territory below. Each
state has exclusive jurisdiction over the air space above its territory. Therefore,
consent for transit must be obtained from the subjacent nation.
The present regime on air navigation has developed from the Chicago
Convention on International Civil Aviation (1944) which entered into force in
1974. The Chicago Convention created the International Civil Aviation
Organization (ICAO), an agency of the United Nations, and prescribed the rules for
international civil aviation.
Articles 1 to 4 of the Convention set down the governing principles:
Article 1. Sovereignty
The contracting States recognize that every State has complete
and exclusive sovereignty over the airspace above its territory.
Article 2. Territory
For the purposes of this Convention the territory of a State shall
be deemed to be the land areas and territorial waters adjacent thereto
under the sovereignty, suzerainty, protection or mandate of such State.
Article 3. Civil and state aircraft
(a) This Convention shall be applicable only to civil aircraft,
and shall not be applicable to state aircraft.
(b) Aircraft used in military, customs and police services
shall be deemed to be state aircraft.
(c) No state aircraft of a contracting State shall fly over the
territory of another State or land thereon without authorization by
special agreement or otherwise, and in accordance with the terms
thereof.
(d) The contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the
safety of navigation of civil aircraft.
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Article 4. Misuse of civil aviation
Each contracting State agrees not to use civil aviation for any
purpose inconsistent with the aims of this Convention.
As can be seen, the Convention does deal with “state aircraft” excepted to say
in Article 3(a) that “No state aircraft of a contracting State shall fly over the
territory of another State or land thereon without authorization by special agreement
or otherwise, and in accordance with the terms thereof.” And “state aircraft”
means “aircraft used in military, customs and police services.” The Convention is
about “civil aviation.”
Flight over territory is classified into “non-scheduled” and “scheduled”
fights.
Article 5. Right of non-scheduled flight
Each contracting State agrees that all aircraft of the other
contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the
terms of this Convention, to make flights into or in transit nonstop
across its territory and to make stops for non-traffic purposes without
the necessity of obtaining prior permission, and subject to the right of
the State flown over to require landing. Each contracting State
nevertheless reserves the right, for reasons of safety of flight, to require
aircraft desiring to proceed over regions which are inaccessible or
without adequate air navigation facilities to follow prescribed routes,
or to obtain special permission for such flights.
Such aircraft, if engaged in the carriage of passengers, cargo, or
mail for remuneration or hire on other than scheduled international air
services, shall also, subject to the provisions of Article 7, have the
privilege of taking on or discharging passengers, cargo, or mail,
subject to the right of any State where such embarkation or discharge
takes place to impose such regulations, conditions or limitations as it
may consider desirable.
Article 6. Scheduled air services
No scheduled international air service may be operated over or
into the territory of a contracting State, except with the special
permission or other authorization of that State, and in accordance with
the terms of such permission or authorization.
J16
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Article 7. Cabotage
Each contracting State shall have the right to refuse
permission to the aircraft of other contracting States to take on in its
territory passengers, mail and cargo carried for remuneration or hire
and destined for another point within its territory. Each contracting
State undertakes not to enter into any arrangements which specifically
grant any such privilege on an exclusive basis to any other State or an
airline of any other State, and not to obtain any such exclusive
privilege from any other State.
The Chicago Convention attempts to provide protection for civilian aircraft.
Since the Convention, however, a number of incidents have taken place fatal to
civilian aircraft. In 1955 a civilian Israeli plane of El A1 Israel Airlines was shot
down by Bulgaria. In 1973, Israeli jets shot down a straying Libyan airliner. In
1983, Russian jets shot down a Korean Airlines plane. When the United States
made the declaration in the Security Council that “sovereignty neither requires nor
permits the shooting down of airlines in peacetime,” the USSR’s swift reply was
that there was a sovereign right of every State to protect its borders including its
airspace.
In 1953, Lissitzyn2 suggested a flexible rule with respect at least to state or
military aircraft: “In its effort to control the movements of intruding aircraft the
territorial sovereignty must not expose the aircraft and its occupants to unnecessary
and unreasonably great danger — that is, in relation to the apprehended
harmfulness of the intrusion.” This implies that the aircraft must not only not be
attacked, unless there is reason to suspect that the aircraft is a real threat, but also
that a warning to land or change course must be given before it is attacked. As to
civilian aircraft, however, there are those who hold that civilian aircraft should
never be attacked. In fact, even the Soviet Union justified its attack on the South
Korean airliner by saying that it had mistaken the aircraft for an American
reconnaissance aircraft.
Outer Space.
The assertion under air space law used to be that air sovereignty extended to
an unlimited extent, usque ad coelum. The development
2
AJIL47 (1953) 559.
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TERRITORY: LAND, AIR, OUTER SPACE
117
of the law on outer space modified this assertion. Sovereignty over air space
extends only until where outer space begins. But where is that?
There is as yet no definite answer to that question. The answer will
eventually come from technological capabilities of conventional aircraft to reach
greater heights. Different numbers ranging from fifty to one hundred miles from the
earth have been mentioned. Nonetheless, the development of outer space law has
started. It is now accepted that outer space, wherever that might be, and celestial
bodies, are not susceptible to appropriation by any state. Among the first
achievements in this area is the 1967 Treaty on the Exploration and Use of Outer
Space. Some of its key provisions are the following:
Article I. The exploration and use of outer space, including the
moon and other celestial bodies, shall be carried out for the benefit and
in the interests of all countries, irrespective of their degree of economic
or scientific development, and shall be the province of all mankind.
Outer space, including the moon and other celestial bodies, shall be
free for exploration and use by all States without discrimination of any
kind, on a basis of equality and in accordance with international law,
and there shall be free access to all areas of celestial bodies. There
shall be freedom of scientific investigation in outer space, including
the moon and other celestial bodies, and States shall facilitate and
encourage international co-operation in such investigation.
Article 11. Outer space, including the moon and other celestial
bodies, is not subject to national appropriation by claim of sovereignty,
by means of use or occupation, or by any other means.
Article III. States Parties to the Treaty shall carry on activities in
the exploration and use of outer space, including the moon and other
celestial bodies, in accordance with international law, including the
Charter of the United Nations, in the interest of maintaining
international peace and security and promoting international cooperation and understanding.
Article IV. States Parties to the Treaty undertake not to place in
orbit around the Earth any objects carrying nuclear weapons or any
other kinds of weapons of mass destruction, install such weapons on
celestial bodies, or station such weapons in outer space in any other
manner.
The Moon and other celestial bodies shall be used by all States
Parties to the Treaty exclusively for peaceful purposes. The
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
establishment of military bases, installations and fortifications, the
testing of any type of weapons and the conduct of military maneuvers
on celestial bodies shall be forbidden. The use of military personnel
for scientific research or for any other peaceful purposes shall not be
prohibited. The use of any equipment or facility necessary for peaceful
exploration of the Moon and other celestial bodies shall also not be
prohibited.
Article V. States Parties to the Treaty shall regard astronauts as
envoys of mankind in outer space and shall render to them all possible
assistance in the event of accident, distress, or emergency landing on
the territory of another State Party or on the high seas. When
astronauts make such a landing, they shall be safely and promptly
returned to the State of registry of their space vehicle.
In carrying on activities in outer space and on celestial bodies,
the astronauts of one State Party shall render all possible assistance to
the astronauts of other States Parties. States Parties to the Treaty shall
immediately inform the other States Parties to the Treaty or the
Secretary-General of the United Nations of any phenomena they
discover in outer space, including the Moon and other celestial bodies,
which could constitute a danger to the life or health of astronauts.
Chapter 8 TERRITORY: LAW OF THE SEA
The importance of the seas flows from two factors: first, they are a medium
of communication, and second, they contain vast natural resources. In the 17th
century, the Portuguese proclaimed vast areas of sea as belonging to itself. But it
was Grotius who elaborated the doctrine of the open seas which considers the high
seas as res communis accessible to all. The doctrine, however, recognized as
permissible the delineation of a maritime belt by littoral states as an indivisible part
of its domain. This belt is the territorial sea.
Much of the history of the law of the sea has centered around the extent of
the territorial sea. But over the years, other jurisdictional issues have occurred and
today the prevailing law on maritime domain is the Convention on the Law of the
Sea of 1982 (LOS). Many of the provisions of the 1982 Law of the Sea are a
repetition of earlier convention law or a codification of customary law.
The basic statement of the extent of a state’s sovereignty over waters is set
down in Article 2 of the 1982 Law of the Sea:
Article 2. Legal status of the territorial sea, of the air space
over the territorial sea and of its bed and subsoil.
1.
The sovereignty of a coastal State extends, beyond its
land territory and internal waters and, in the case of an archipelagic
State, its archipelagic waters, to an adjacent belt of sea, described as
the territorial sea.
2.
This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
3.
The sovereignty over the territorial sea is exercised
subject to this Convention and to other rules of international law.
119
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Territorial sea.
The territorial sea is a belt of sea outwards from the baseline and up to 12
nautical miles beyond. The width of this territorial belt of water has been the
subject of much disagreement. The original rule was the “cannon shot” rule, that
is, the width of water was measured in terms of the range of shore-based artillery.
Later this became the three-mile rule. The three mile rule has now been discarded
in favor of the twelve-mile rule now found in Article 3 of the 1982 LOS.
Where, however, the application of the twelve-mile rule to neighboring
littoral states would result in overlapping, the rule now established is that the
dividing line is a median line equidistant from the opposite baselines. But the
equidistance rule does not apply where historic title or other special circumstances
require a different measurement. Article 15,1982 LOS.
Baselines: “normal" or “straight"
To understand the extent of the territorial sea one must begin with an
understanding of baselines. The baseline is “the low-water line along the coast as
marked on large scale charts officially recognized by the coastal State.” (Section
5,182 LOS) The width of the territorial sea is measured from the baseline.
There are two ways of drawing the baseline. The “normal” baseline is one
drawn following “the low-water line along the coast as marked on large-scale
charts officially recognized by the coastal State.”' This line follows the curvatures
of the coast and therefore would normally not consist of straight lines.
There is no fixed norm for determining the “low water mark” but the AngloNorwegian Fisheries Case (U.K. v. Norway ICJ 1951) has suggested that “for the
purpose of measuring the breadth of the territorial sea, it is the low-water mark as
opposed to the high-water mark, or the mean between the two tides, which has
generally been adopted in the practice of States. This criterion is the most
favorable to the coastal State and clearly shows the character of territorial waters
as appurtenant to the land territory.”2
'Article 5, Law of the
2
1951 ICJ 116,128.
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121
Archipelagic states, however, instead of drawing “normal baselines,” have
drawn “straight baselines.” Instead of following the curvatures of the coast,
straight lines are drawn connecting selected points on the coast without
appreciable departure from the general shape of the coast. This method of drawing
lines was first upheld in the Anglo-Nor- wegian Fisheries Case3 which upheld the
straight baseline unilaterally adopted by Norway. Likewise, R.A. No. 3046 and
R.A. No. 5446 have drawn “straight baselines” around the Philippines.
The decision in the Fisheries Case upholding the “straight baseline
method” eventually became part of convention law. Article 7(1) of the Convention
on the Law of the Sea says: “In localities where the coastline is deeply indented
and cut into, or if there is a fringe of islands along the coast in its immediate
vicinity, the method of straight baselines joining appropriate points may be
employed in drawing the baseline from which the breadth of the territorial sea is
measured.”4
Article 47 of the Convention on the Law of the Sea allows the use of the
“straight baseline method” for archipelagic states with certain limitations. The
article in full reads:
1.
An archipelagic State may draw straight archipelagic
baselines joining the outermost points of the outermost islands and
drying reefs of the archipelago provided that within such baselines are
included the main islands and an area in which the ratio of the area of
the water to the area of the land, including atolls, is between 1 to 1
and 9 to 1.
2.
The length of such baseline shall not exceed 100 nautical
miles, except that up to 3 percent of the total number of baselines
enclosing any archipelago may exceed that length, up to a maximum
length of 125 nautical miles.
3.
The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipelago4.
Such baselines 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
3
1951 ICJ at 130. The argument from this case is by analogy and, therefore, only as strong as the
analogy. See Committee Report No. 01 and Speech of Delegate Laggui, Session of February 14,1972.
'See also 1958 Territorial Sea Convention.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
a low-tide elevation is situated wholly or partially at a distance not
exceeding the breadth of the territorial sea of another State.
5.
The system of such baselines shall not be applied to an
archipelagic State in such a manner as to cut-off from the high seas or
the exclusive economic zone the territorial sea of another State.
6.
If a part of the archipelagic waters of an archipelagic
State lies between two parts of an immediately adjacent neighboring
State, existing rights and all other legitimate interests which the latter
State has traditionally exercised in such waters and all rights
stipulated by agreement between those States shall continue and be
respected.
7.
F
or the purpose of computing the ratio of water to land under
paragraph 1, land areas may include waters lying within the hinging
reefs of islands and atolls, including that part of a steepsided oceanic
plateau which is enclosed or nearly enclosed by a chain of limestone
islands and drying reefs lying on the perimeter of the plateau.
8.
The baselines drawn in accordance with this article shall
be shown on charts of a scale or scales adequate for ascertaining their
position. Alternatively, lists of geographical co-ordinates of points,
specifying the geodetic datum, may be substituted.
9.
The archipelagic State shall give due publicity to such
charts or lists of geographical co-ordinates and shall deposit a copy of
each such chart or list with the Secretary-General of the United
Nations.
Sovereignty over Territorial Sea
The sovereignty of the coastal state over its territorial sea and the airspace
above it as well as the seabed under is the same as its sovereignty over its land
territory. (Article 2, LOS) However, the sea is subject to the right of innocent
passage by other states. The rule on innocent passage applies to ships and aircraft.
Submarines, moreover, must surface.
Innocent passage is passage that is not prejudicial to the peace, good order
or security of the coastal state. Article 19(2) enumerates acts that are not
considered innocent passage thus:
2.
Passage of a foreign ship shall be considered to be
prejudicial to the peace, good order or security of the coastal State if
in the territorial sea it engages in any of the following activities:
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TERRITORY: LAW OF THE SEA
(a) any threat or use of force against the sovereignty,
territorial integrity or political independence of the coastal
State, or in any other manner in violation of the principles of
international law embodied in the Charter of the United
Nations;
(b)
any exercise or practice with weapons of any
kind;
(c)
any
aimed at collecting information to
the
prejudice of the defense or security of the coastal State;
(d)
propaganda aimed at affecting
defense or security of the coastal State;
(e)
aircraft;
act
any act of
the
the launching, landing or taking on board of any
(f)
launching, landing or taking on board of
military device;
the
any
(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or
sanitary laws and regulations of the coastal State;
(h) any act of willful and serious pollution contrary to
this Convention;
(i)
any fishing
activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of
communication or any other facilities or installations of the
coastal State;
(1)
passage.
any other activity not having a direct bearing on
Coastal states have the unilateral right to verify the innocent character of
passage, and it may take the necessary steps to prevent passage that it determines
to be not innocent.
The rule on innocent passage is also applicable to straits. In the Corfu
Channel Case,5 the Court said:
It is, in the opinion of the Court, generally recognized and in
accordance with international custom that States in time of peace
5
UJC. v. Albania, [1949] ICJ Rep.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
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 that the passage is
innocent. Unless otherwise prescribed in an international convention,
there is no right for a coastal State to prohibit such passage through
straits in time of peace.
This rule is now found in Article 45 of the 1982 Convention.
Internal waters.
Internal waters are all waters (part of the sea, rivers, lakes, etc.) landwards
from the baseline of the territory. Sovereignty over these waters is the same in
extent as sovereignty over land, and it is not subject to the right of innocent
passage. However, in Saudi Arabia v. Aramco (Arbitration 1963), the arbitrator
said that according to international law — ports of every state must be open to
foreign vessels and can only be closed when vital interests of the state so requires.
But according to the Nicaragua v. US.,6 a coastal state may regulate access to its
ports.
Archipelagic waters.
Article 8(2) of the Convention which says: “Where the establishment of a
straight baseline in accordance with the method set forth in Article 7 has the effect
of enclosing as internal waters areas which had not previously been considered as
such, a right of innocent passage as provided in this Convention shall exist in
those waters.” Article 53 of the Convention refers to this type of internal water as
“archipelagic waters” and says that “[a]n archipelagic State may designate sea
lanes and air routes thereabove, suitable for the continuous and expeditious
passage of foreign ships and aircraft through or over its archipelagic waters and
the adjacent territorial sea.”
This provision was seen as posing a problem for Philippine law because
Article I of the Philippine Constitution, which took effect in 1973 prior to the
1982 Convention on the Law of the Sea, considers all waters connecting the
islands as internal waters. The Philippine government was clearly aware of these
possible conflicts. Hence, upon its
‘Merits, [1986] ICJ Rep.
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125
ratification of the Convention on the Law of the Sea on August 5,1984, it added
the following declaration:7
1.
The signing of the Convention by the Government of the
Republic of the Philippines shall not in any manner impair or prejudice the
sovereign rights of the Republic of the Philippines under and arising from
the Constitution of the Philippines;
2.
Such signing shall not in any manner affect the sovereign rights
of the Republic of the Philippines as successor to the United States of
America, under and arising out of the Treaty of Paris between Spain and the
United States of America of December 10, 1988, and the Treaty of
Washington between the United States of America and Great Britain of
January 2,1930;
3.
Such signing shall not diminish or in any manner affect the
rights and obligations of the Contracting Parties under the Mutual Defense
Treaty between the Philippines and the United States of America of August
30,1951, and its related interpretative instruments; nor those under any
pertinent bilateral or multilateral treaty or agreement to which the
Philippines is a party;
6.
The provisions of the Convention on archipelagic passage
through sea lanes do not nullify or impair the sovereignty of the Philippines
as an archipelagic State over the sea lanes and do not deprive it of authority
to enact legislation to protect its sovereignty, independence, and security;
7.
The concept of archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or high sea from the rights
of foreign vessels to transit passage for international navigation;
7
U.N. Office for Oceans Affairs and the Law of the Sea, Law of the Sea Bulletin, Special Issue 1, March
1987, Annex II, p. 6, quoted in Sweeney, Oliver, Leech, THE INTERNATIONAL LEGAL SYSTEM, 193 (3RD ED. 1988).
126
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
However, concern about this problem may not be necessary because Article
8(2) itself says that the new rule applies only to “areas which had not previously
been considered as ‘internal waters.”’ The 1973 Constitution pre-dates the 1982
Convention.
Bays.
The waters of a bay are considered internal waters of a coastal state. The
rule on bays is found in Article 10 of the 1982 LOS:
2.
For the purposes of this Convention, a bay is a well- marked
indentation whose penetration is in such proportion to the width of its
mouth as to contain land-locked waters and constitute more than a mere
curvature of the coast. An indentation shall not, however, be regarded as a
bay unless its area is as large as, or larger than, that of the semi-circle whose
diameter is a line drawn across the mouth of that indentation.
3.
For the purpose of measurement, the area of an indentation is
that lying between the low-water mark around the shore of the indentation
and a line joining the low-water mark of its natural entrance points. Where,
because of the presence of islands, an indentation has more than one mouth,
the semi-circle shall be drawn on a line as long as the sum total of the
lengths of the lines across the different mouths. Islands within an
indentation shall be included as if they were part of the water area of the
indentation.
4.
If the distance between the low-water marks of the natural
entrance points of a bay does not exceed 24 nautical miles, a closing line
may be drawn between these two low-water marks, and the waters enclosed
thereby shall be considered as internal waters.
5.
Where the distance between the low-water marks of the natural
entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24
nautical miles shall be drawn within the bay in such a manner as to enclose
the maximum area of water that is possible with a line of that length.
6.
The foregoing provisions do not apply to so-called “historic”
bays, or in any case where the system of straight baselines provided for in
Article 7 is applied.
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TERRITORY: LAW OF THE SEA
127
Historic bays are bays which are treated by the coastal state as internal
waters on the basis of historic rights acknowledged by other states. A listing of
historic bays may be found in 4 Whitman, DIGEST OF INTERNATIONAL LAW 233-39 (1965).
Contiguous zone.
The contiguous zone is an area of water not exceeding 24 nautical miles
from the baseline. It thus extends 12 nautical miles from the edge of the territorial
sea. The coastal state exercises authority over that area to the extent necessary to
prevent infringement of its customs, fiscal, immigration or sanitation authority
over its territorial waters or territory and to punish such infringement. Article 33 (1
and 2), 1982 LOS says:
1.
In a zone contiguous to its territorial sea, described as the
contiguous zone, the coastal State may exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration
or sanitary laws and regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations
committed within its territory or territorial sea.
2.
The contiguous zone may not extend beyond 24 nautical miles
from the baselines from which the breadth of the territorial sea is measured.
It should be understood, however, that, according to the International Law
Commission’s Commentary on the Draft, the power of control given to the littoral
state does not change the nature of the waters. Beyond the territorial sea, the
waters are high sea and are not subject to the sovereignty of the coastal state.
Exclusive economic zone or “patrimonial sea.”
The doctrine on the exclusive economic zone is a recent development. Prior
to the acceptance of this doctrine, all waters beyond the contiguous zone were
considered as high seas over which no state had control. The doctrine developed
owing to the desire of coastal states for better conservation and management of
coastal fisheries.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
The exclusive economic zone is an area extending not more than 200
nautical miles beyond the baseline. The coastal state has rights over the economic
resources of the sea, seabed and subsoil — but the right does not affect the right of
navigation and overflight of other states. This is a compromise between those who
wanted a 200-mile territorial sea and those who wanted to reduce the powers of
coastal states.
The provisions on the exclusive economic zone are both a grant of rights to
and an imposition of obligations on coastal states relative to the exploitation,
management and preservation of the resources found within the zone.
Coastal states have two primary obligations. First, they must ensure through
proper conservation and management measures that the living resources of the
EEZ are not subjected to over-exploitation. This includes the duty to maintain and
restore populations of harvested fisheries at levels which produce a “maximum
sustainable yield.” Second, they must promote the objective of “optimum
utilization” of the living resources. They therefore should determine the allowable
catch of living resources. If the coastal state does not have the capacity to harvest
the allowable catch, it must grant access to other states. The details on this matter
are found in Articles 55 to 75.
The delimitation of the overlapping exclusive economic zone between
adjacent states is determined by agreement.
The Continental (Archipelagic) Shelf.
The continental shelf, archipelagic or insular shelf for archipelagos, refers to
(a) 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, and (b) the seabed and subsoil of areas
adjacent to islands. The coastal state has the right to explore and exploit its natural
resources, to erect installations needed, and to erect a safety zone over its
installations with a radius of 500 meters. The right does not affect the right of
navigation of others. Moreover, the right does not extend to non-resource material
in the shelf area such as wrecked ship and their cargoes.
The Deep Seabed: “Common Heritage of Mankind.”
These are areas of the sea-bed and the ocean floor, and their subsoil, which
lie beyond any national jurisdiction. These are the com
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TERRITORY: LAW OF THE SEA
129
mon heritage of mankind and may not be appropriated by any state or person.
Activities in the area are governed by Articles 135 tol53 of the 1982 Convention.
Islands.
Article 121. Regime of islands
1.
An island is a naturally formed area of land, surrounded
by water, which is above water at high tide.
2.
Except as provided for in paragraph 3, the territorial sea,
the contiguous zone and the continental shelf of an island are
determined in accordance with the provisions of the Convention
applicable to other land territory.
3.
Rocks which cannot sustain human habitation or
economic life of their own shall have no exclusive economic zone or
continental shelf.
Islands can be very important because of the possibility of exploiting oil and
gas resources around them. This explains the controversy over Spratleys. It is
noteworthy that islands can have their own territorial sea, exclusive economic zone
and continental shelf. However, rocks “which cannot sustain human habitation or
economic life” only have a territorial sea. But there is no clear international law
definition of “economic life” referred to in n. 3.
Artificial islands or installations are not “islands” in the sense of Article 121.
However, coastal states may establish safety zones around artificial islands and
prescribe safety measures around them. (Article 60[4] and [5])
The High Seas.
Article 1 of the Geneva Convention on the High Seas defines the high seas
as “all parts of the sea that are not included in the territorial sea or in the internal
waters of a State.”
The highs seas are subject to six freedoms: (1) freedom of navigation; (2)
freedom of overflight; (3) freedom of fishing; (4) freedom to lay submarine cables
and pipelines; (5) freedom to construct artificial islands and structures; and (6)
freedom of scientific research.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
The first four of the above freedoms were mentioned in the 1958
Convention of the High Seas and the last two were added by the 1982 LOS. But
these two are subject to some restrictions.
The flag state has exclusive jurisdiction over its ships on the high seas to the
extent not limited by agreement. By legal fiction, a ship is a floating part of the
flag state. The law of the flag state is applied to it “on the pragmatic basis that
there must be some law on shipboard, that it cannot change at every change of
waters, and no experience shows a better rule than that of the state that owns it.”8
Freedom of overflight belongs to both civilian and military aircraft.
Freedom of fishing also includes the duty to cooperate in taking measures to
ensure the conservation and management of the living resources of the high seas.
Article 86 of the 1982 LOS, on the six freedoms, says: “The provisions of
this part apply to all parts of the sea that are not included in the exclusive
economic zone, in the territorial sea or in the internal waters of a state, or in the
archipelagic waters of an archipelagic state.” This, however, is not a definition of
the scope of the area called “high seas.” As noted above, the contiguous zone is
part of the high seas. What Article 86 does is to specify the areas that are not
covered by all the six freedoms.
Hot Pursuit
Article 111 allows hot pursuit of a foreign vessel where there is good reason
to believe that the ship has violated laws or regulations of a coastal state. The
pursuit must commence when the foreign vessel is within the internal waters, the
archipelagic waters, the territorial waters or the contiguous zone of the pursuing
state. It may continue into the high seas if the pursuit has not been interrupted. If
the foreign ship is in the contiguous zone, it may be pursued only for violations of
the rights of the coastal state in the contiguous zone.
Mutatis mutandis, the right of hot pursuit shall also apply to violations of
applicable laws and regulations of the coastal state in the
‘Lauritzen v. Larsen, 345 U.S. 571,585 (1953).
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131
exclusive economic zone or the continental shelf including the safety zones of the
shelf.
Hot pursuit must stop as soon as the ship pursued enters the territorial
waters if its own state or of a third state.
Hot pursuit may be carried out only by warships or military aircraft, or any
other ship or aircraft properly marked for that purpose.
In the case of The I’m Alone (29 AJIL 326), although the pursuit was found
to be legitimate, the sinking of the pursued vessel was found to be “not justified by
anything in the Convention ... [nor] by any principle of international law.” The
Commission ordered the United States to apologize to the Canadian government
and to pay damages.
Settlement of Disputes.
Peaceful settlement of disputes is compulsory. Under Part XV of the 1982
Convention States are required to settle peacefully disputes concerning the
Convention. If a bilateral settlement fails, Article 285 requires submission of the
dispute for compulsory settlement in one of the tribunals clothed with jurisdiction.
The alternatives are the International Tribunal for the Law of the Sea, the ICJ, or
an arbitral tribunal constituted under the Convention.
Chapter 9 JURISDICTION OF STATES
Jurisdiction means the authority to affect legal interests. Corresponding to
the powers of government, jurisdiction can be: (^jurisdiction to prescribe norms of
conduct (legislative jurisdiction), (2) jurisdiction to enforce the norms prescribed
(executive jurisdiction), and (3) jurisdiction to adjudicate (judicial jurisdiction).
The scope of a state’s jurisdiction over a person, thing, or event depends on
the interest of the state in affecting the subject in question. Where there are
competing interests among various states, there may be a need to establish
priorities on the basis of the quality and quantity of the linkages the various states
have. For that matter, it is possible for more than one sovereignty to have
jurisdiction over the same subject matter.
International law limits itself to criminal rather than civil jurisdiction. Civil
jurisdiction is a subject for private international law or conflicts of law.
Writers have come up with five principles as follows:
1)
the
territoriality
the
nationality
principle;
2)
principle;
3)
the protective principle;
4)
the
universality
principle; and
5)
the passive personality
principle.
The first three are generally supported in customary law; the fourth finds
application in special circumstances; but the fifth does not enjoy wide acceptance.
Of co rse j risdiction ma also be acq ired thro gh treat
132
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JURISDICTION OF STATES
133
The Territoriality Principle.
The fundamental source of jurisdiction is sovereignty over territory. A state
has absolute, but not necessarily exclusive, power to prescribe, adjudicate and
enforce rules for conduct that occurs within its territory. For this reason, it is
necessary that boundaries be determined. The Third Restatement summarizes the
rules on boundaries where states are not islands but parts of a larger land mass
thus:
(1) the boundary separating the land areas of two states
is determined by acts of the states expressing their consent to its
location.
(2)
Unless a consent to a different rule has been expressed,
(a) when the boundary between two states is a navigable
river, its location is the middle of the channel of navigation (Thalweg
doctrine)',
(b) when the boundary between two states is a nonnavigable river or a lake, its location is the middle of the river or lake.
In this regard it is important to recall what was said in the Las Palmas case:
to have jurisdiction, occupation is not enough; control must also be established.
The Philippines has no problem with surface land boundaries because we
have no contiguous neighbors. However, because we are very close to other Asian
states, knowing where our boundaries end may be necessary for purposes of
determining our exclusive economic zone, treated earlier in Chapter 9.
Effects Doctrine
An aspect of the territoriality principle is the “effects doctrine A state also
has jurisdiction over acts occurring outside its territory but having effects within it.
This was enunciated in the Lotus case, an early case dealing with territorial
jurisdiction.
The effects doctrine itself consists of two principles. First, there is the
subjective territorial principle which says that a state has jurisdiction to prosecute
and punish for crime commenced within the state but completed or consummated
abroad. The second is the objective territorial principle which says that a state has
jurisdiction to prosecute and
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
punish for crime commenced without the state but consummated within its
territory. See the Trail Smelter Arbitration.
THE LOTUS CASE FRANCE V. TURKEY PCU (1927)
Background
On August 2, 1926, just before midnight, a French mail
steamer Lotus, on the way to Constantinople, collided with the
Turkish cutter Boz-Kourt on the high seas. The Boz-Kourt sank with
the loss of eight sailors, all Turkish nationals. The Lotus subsequently
arrived in Constantinople at which point Turkish authorities arrested
Lieutenant Demons, the French officer in charge of the Lotus at the
time of the collision, and Hassan Bey, the captain of the Boz-Kourt.
Both were charged with manslaughter.
Lieutenant Demons argued that the Turkish Courts had no
jurisdiction. This argument was rejected and he was sentenced to
eighty days imprisonment and a fine of twenty-two pounds. Hassan
Bey received a slightly heavier sentence.
The French Government objected to the actions of the Turkish
Court. The French and the Turks agreed to submit the dispute to the
Permanent Court of International Justice (the precursor to the ICJ).
In submitting the dispute to the PCIJ, an agreement was drawn
up according to which the Court had to decide:
1.
Has Turkey by instituting criminal proceedings in pursuance of Turkish law against M. Demons, officer of the watch on
board the Lotus at the time of the collision, in consequence of the loss
of the Boz-Kourt having involved the death of eight Turkish sailors
and passengers violated international law?
Judgment:
The Court, having to consider whether there are any rules of
international law which may have been violated by the prosecution in
pursuance of Turkish law of Lieutenant Demons, is confronted in the
first place by a question of principle which . . . has proved to be a
fundamental one. The French Government contends that the Turkish
Courts, in order to have jurisdiction, should be able to point to some
title to jurisdiction recognized by international law in favor of
Turkey. On the other hand, the Turkish Government
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JURISDICTION OF STATES
takes the view that Turkey has jurisdiction whenever such jurisdiction
does not come into conflict with a principle of international law.
Though it is true that in all systems of law, the principle of the
territorial character of criminal law is fundamental, it is equally true
that all or nearly all these systems of law extend their action to
offenses committed outside the territory of the State which adopts
them, and they do so in ways which vary from State to State. The
territoriality of criminal law, therefore, is not an absolute principle of
international law and by no means coincides with territorial sovereignty.
The Court therefore must ... ascertain whether or not there
exists a rule of international law limiting the freedom of States to
extend the criminal jurisdiction of their courts to a situation uniting
the circumstances of the present case.
... [T]he characteristic features of the situation of fact are as
follows there has been a collision on the high seas between two
vessels flying different flags, on one of which was one of the persons
alleged to be guilty of the offense, whilst the victims were on board
the other.
It is certainly true that — apart from special cases which are
defined by international law — vessels on the high seas are subject to
no authority except that of the State whose flag they fly. In virtue of
the principle of the freedom of the seas, that is to say, the absence of
any territorial sovereignty upon the high seas, no State may exercise
any kind of jurisdiction over foreign vessels upon them....
But it by no means follows that a State can never in its own
territory exercise jurisdiction over acts which have occurred on board
a foreign ship on the high seas. A corollary of the principle of the
freedom of the seas is that a ship on the high seas is assimilated to the
territory of the State the flag of which it flies, for, just as in its own
territory, that State exercises its authority upon it, and no other State
may do so. All that can be said is that by virtue of the principle of the
freedom of the seas, a ship is placed in the same position as national
territory, but there is nothing to support the claim according to which
the rights of the State under whose flag the vessel sails may go farther
than the rights which it exercises within its territory properly socalled. It follows that what occurs on board a
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
vessel upon the high seas must be regarded as if it occurred on the
territory of the State whose flag the ship flies. If, therefore, a guilty
act committed on the high seas produces its effects on a vessel flying
another flag or in foreign territory, the same principles must be
applied as if the territories of two different States were concerned, and
the conclusion must therefore be drawn that there is no rule of
international law prohibiting the State to which the ship on which the
effects of the offense have taken place belongs, from regarding the
offense as having been committed in its territory and prosecuting,
accordingly, the delinquent.
This conclusion could only be overcome if it were shown that
there was a rule of customary international law which, going further
than the principle stated above, established the exclusive jurisdiction
of the State whose flag was flown. The French Government has
endeavored to prove the existence of such a rule, having recourse for
this purpose to the teachings of publicists, to decisions of municipal
and international tribunals, and especially to conventions which,
whilst creating exceptions to the principle of the freedom of the seas
by permitting the war and police vessels of a State to exercise a more
or less extensive control over the merchant vessels of another State,
reserve jurisdiction to the courts of the country as is flown by the
vessel proceeded against.
In the Court’s opinion, the existence of such a rule has not been
conclusively proved.
In the first place, as regards teachings of publicists, and apart
from the question as to what their value may be from the point of
view of establishing the existence of a rule of customary law, it is no
doubt true that all or nearly all writers teach that ships on the high
seas are subject exclusively to the jurisdiction of the State whose flag
they fly. But the important point is the significance attached by them
to this principle; now it does not appear that in general, writers
bestow upon this principle a scope differing from or wider than that
explained above and which is equivalent to saying that the jurisdiction
of a State over vessels on the high seas is the same in extent as its
jurisdiction in its own territory. On the other hand, there is no lack of
writers who, upon a close study of the special question whether a
State can prosecute for offenses committed on board a foreign ship on
the high seas, definitely come to the conclusion that such offenses
must be regarded as if they had been committed in the territory of the
State whose flag the ship flies, and that consequently, the general
rules of each legal system in regard to offenses committed abroad are
applicable.
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137
In regard to precedents, it should first be observed that, leaving
aside the collision cases ... none of them relates to offenses affecting
two ships flying the flags of different countries, and consequently
they are not of much importance in the case before the Court. ...
On the other hand, there is no lack of cases in which a State has
claimed a right to prosecute for an offense, committed on board a
foreign vessel, which it regarded as punishable under its legislation....
The conclusion at which the Court has therefore arrived is that
there is no rule of international law in regard to collision cases to the
effect that criminal proceedings are exclusively within the jurisdiction
of the State whose flag is flown....
The offense for which Lieutenant Demons appears to have been
prosecuted was an act of negligence or imprudence — having its
origin on board the Lotus, whilst its effects made themselves felt on
board the Boz-Kourt. These two elements are, legally, entirely
inseparable so much so that their separation renders the offense nonexistent. Neither the exclusive jurisdiction of either State, nor the
limitations of the jurisdiction of each to the occurrences which took
place on the respective ships would appear calculated to satisfy the
requirements of justice and effectively to protect the interests of the
two States. It is only natural that each should be able to exercise
jurisdiction and to do so in respect of the incident as a whole. It is
therefore a case of concurrent jurisdiction....
Jurisdiction over foreign vessels in Philippine Territory
Regarding crimes committed on foreign vessels within Philippine territory,
the Supreme Court had this to say:
There are two fundamental rules on this particular matter in connection with
international law; to wit, the French rule, according to which crimes committed
aboard a foreign merchant vessel should not be prosecuted in the courts of the
country within whose territorial jurisdiction they were committed unless their
commission affects the peace and security of the territory; and the English rule,
based on the territorial principle and followed in the United States, according to
which, crimes perpetrated under such circumstances are in general triable in the
courts of the country within whose territory they were committed. Of these
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
two rules, it is the last one that obtains in this jurisdiction, because at present the
theories and jurisprudence prevailing in the United States on the matter are
authority in the Philippines which is now a territory of the United States.
(Syllabus, People v. Wong Cheng, 46 Phil 729 [1922])
TRAIL SMELTER ARBITRATION US v. Canada (1938-41)
(Abridged)
The President of the United States of America, and His Majesty
the King of Great Britain, Ireland and the British dominions beyond
the Seas, Emperor of India, in respect of the Dominion of Canada.
Considering that the Government of the United States has
complained to the Government of Canada that fumes discharged from
the smelter of the consolidated Mining and Smelting company at
Trail, British Columbia, have been causing damage in the State of
Washington, and
Recognizing the desirability and necessity of effecting a permanent settlement,
Have decided to conclude a convention for the purposes
aforesaid...
The Governments of the United States and of Canada, hereinafter referred to as “the Governments,” mutually agree to constitute
a tribunal... for the purpose of deciding the questions referred to it...
The Tribunal shall finally decide the questions, hereinafter
referred to as “the Questions,” set forth hereunder, namely:
1.
Whether damage caused by the Trail Smelter in
the State of Washington has occurred since the first day of
January, 1932, and, if so, what indemnity should be paid
therefor?
2.
In the event of the answer to the first part of the
preceding Question being in the affirmative, whether the Trail
Smelter should be required to refrain from causing damage in
the State of Washington in the future and, if so, to what extent?
3.
I
n the light of the answer to the preceding Question, what
measures or regime, if any, should be adopted or maintained by
the Trail Smelter?
CHAPTER 9
JURISDICTION OF STATES
4.
What indemnity or compensation, if any, should
be paid on account of any decision or decisions rendered by
the Tribunal pursuant to the next two preceding Questions?
The controversy is between two governments involving damage
occurring in the territory of one of them (the United States of
America) and alleged to be due to an agency situated in the territory
of the other (the Dominion of Canada), for which damage the latter
has assumed by the Convention an international responsibility....
In conclusion, the Tribunal answers Question 1 in Article III, as
follows: Damage caused by the Trail Smelter in the State of
Washington has occurred since the first day of January, 1932, and up
to October 1,1937, and the indemnity to be paid therefor is seventyeight thousand dollars ($78,000), and is to be complete and final
indemnity and compensation for all damage which occurred between
such dates. ...
As Professor Eagleton puts it Responsibility of States in
International Law, 1928, p. 80: “A State owes at all times a duty to
protect other States against injurious acts by individuals from within
its jurisdiction.” A great number of such general pronouncements by
leading authorities concerning the duty of a State to respect other
States and their territory have been presented to the Tribunal.... [T]his
principle, as such, has not been questioned by Canada. But the real
difficulty often arises rather when it comes to determine what... is
deemed to constitute an injurious act.
Considering the circumstances of the case, the Tribunal holds
that the Dominion of Canada is responsible in international law for
the conduct of the Trail Smelter.... It is, therefore, the duty of the
government of the Dominion of Canada to see to it that this conduct
should be in conformity with the obligation of the Dominion under
international law as herein determined.
The Tribunal, therefore, answers question No. 2 as follows:
(2) so long as the present conditions in the Columbia River Valley
prevail, the Trail Smelter shall be required to refrain from causing any
damage through fumes in the State of Washington;...
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
The Nationality Principle.
The nationality principle says that every state has jurisdiction over its
nationals even when those nationals are outside the state. Blackmer v. United
States, infra, is illustrative of this principle.
BLACKMER V. UNITED STATES 284 U.S. 421 (1932)
Mr. Chief Justice HUGHES delivered the opinion of the Court.
The petitioner, Harry M. Blackmer, a citizen of the United
States resident in Paris, France, was adjudged guilty of contempt of
the Supreme Court of the District of Columbia for failure to respond
to subpoenas served upon him in France and requiring him to appear
as a witness on behalf of the United States at a criminal trial in that
court. Two subpoenas were issued, for appearances at different times,
and there was a separate proceeding with respect to each. The two
cases were heard together, and a fine of $30,000 with costs was
imposed in each case, to be satisfied out of the property of the
petitioner which had been seized by order of the court. ...
The subpoenas were issued and served, and the proceedings to punish
for contempt were taken, under the provisions of the Act of July 3,
1926, c. 762, 44 Stat. 835, U.S.C., tit. 28, 711-718 (28 USCA 711718).
The statute provided that [284 U.S. 421,434] whenever the
attendance at the trial of a criminal action of a witness abroad, who is
‘a citizen of the United States or domiciled therein,’ is desired by the
Attorney General, or any assistant or district attorney acting under
him, the judge of the court in which the action is pending may order a
subpoena to issue, to be addressed to a consul of the United States
and to be served by him personally [284 U.S. 421,
435] upon the witness with a tender of traveling expenses. Sections 2,
3 of the act (28 USCA 712,713).
This statute and the proceedings against the petitioner are assailed as being repugnant to the Constitution of the United States.
First. The principal objections to the statute are that it violates the due process
clause of the Fifth Amendment. These contentions are:
(1) That the ‘Congress has no power to authorize United States
consuls to serve process except as permitted by treaty’; (2) that the
act does not provide ‘a valid method of acquiring judicial jurisdic-
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JURISDICTION OF STATES
tion to render personal judgment against defendant and judgment
against his property’; (3) that the act ‘does not require actual or any
other notice to defendant of the offense or of the Government’s claim
against his property’; (4) that the provisions ‘for hearing and
judgment in the entire absence of the accused and without his consent’ are invalid; and (5) that the act is ‘arbitrary, capricious and
unreasonable.’
While it appears that the petitioner removed his residence to
France in the year 1924, it is undisputed that he was, and continued to
be, a citizen of the United States. He continued to owe allegiance to
the United States. By virtue of the obligations of citizenship, the
United States retained its authority over him, and he was bound by its
laws made applicable to him in a foreign country. Thus, although
resident abroad, the petitioner remained subject to the taxing power of
the United States. Cook v. Tait, 265 US. 47, 54, 56 S., 44 S. Ct. 444.
For disobedience to its laws through conduct abroad, he was subject
to punishment in the courts of the United States. United States v.
Bowman [284 US. 421, 437], 260 US. 94,102, 43 S. Ct. 39.
With respect to such an exercise of authority, there is no
question of international law, but solely of the purport of the
municipal law which establishes the duties of the citizen in relation to
his own government. While the legislation of the Congress, unless the
contrary intent appears, is construed to apply only within the
territorial jurisdiction of the United States, the question of its
application, so far as citizens of the United States in foreign countries
are concerned, is one of construction, not of legislative power.
American Banana Co. v. United Fruit Co., 213 US. 347, 357, 29 S. Ct.
511, 16 Ann. Cas. 1047; United States v. Bowman, supra; Robertson v.
Labor Board, 268 US. 619,622,45 S. Ct. 621. Nor can it be doubted
that the United States possesses the power inherent in sovereignty to
require the return to this country of a citizen, resident elsewhere,
whenever the public interest requires it, and to penalize him in case of
refusal. Compare Bartue and the Duchess of Suffolk’s Case, 2 Dyer’s
Rep. 176b, 73 Eng. Rep. 388; Knowles v. Luce, Moore 109, 72 Eng.
Rep. 473.4. What in England was the prerogative of the sovereign in
this respect pertains under our constitutional system to the national
authority which may be exercised by the Congress by virtue of the
legislative power to prescribe the duties of the citizens of the United
States.
It is also beyond controversy that one of the duties which the
citizen owes to his government is to support the administration of
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
justice by attending its courts and giving his testimony whenever he is
properly summoned. Blair v. United States, 250 US. 273,
281, 39 S. St. Ct. 468. And the Congress may provide for the performance of this duty and prescribe penalties for disobedience. ...
Each state has the right to decide who are its nationals using either the
principle ofjus sanguinis or jus soli or naturalization laws. However, for a state to
claim a person as a national, the state must have reasonable connection or an
“effective link” with that person. The consent of the individual alone is not enough
for him to be recognized by other states as a national of the state to which he
claims to belong. The Nottebohm case (Liechtenstein v. Guatemala), infra, is
illustrative.
Effective Nationality Link
The doctrine on effective nationality link is used to determine which of two
states of which a person is a national will be recognized as having the right to give
diplomatic protection to the holder of dual nationality. The doctrine is found in the
Nottebohm case.
THE NOTTEBOHM CASE
Liechtenstein v. Guatemala
I.
CJ.
1955
(Abridged)
Background
Nottebohm was a German national by birth. In 1905, at the age
of 24, he moved to Guatemala, where he maintained a residence and a
business enterprise. On several occasions, he made business trips to
Germany. Between 1931 and 1939, he visited a brother in
Liechtenstein on several occasions. The rest of his relatives and
friends lived in Germany or Guatemala. In October 1939 (shortly
after the outbreak of World War II), he applied for citizenship by
naturalization in Liechtenstein.
Nottebohm asked for a waiver of the residence requirement,
paid his naturalization fees, and gave a deposit for the payment of
taxes. By the end of October 1939, he was granted citizenship and
received a Liechtenstein passport. On December 1,1939, he received
a visa from the Guatemalan Consul in Zurich. Nottebohm then
returned to Guatemala.
Several months before declaring war on Germany, the United States
blacklisted Nottebohm and froze his U.S. assets. Like
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JURISDICTION OF STATES
143
the United States, Guatemala entered World War II against Germany
in December 1941. In 1943, Guatemala arrested Nottebohm as a
dangerous enemy alien and deported him to the United States, where
he was interned until 1946. He then returned to Liechtenstein, after
Guatemala refused his application for readmission. By 1949,
Guatemala had confiscated his property on the grounds that he was an
enemy alien.
In 1951, Liechtenstein brought this action against Guatemala,
asking the Court to declare that: “The Government of Guatemala in
arresting, detaining, expelling and refusing to readmit Mr. Nottebohm
and in seizing and retaining his property without compensation acted
in breach of their obligations under international law and
consequently in a manner requiring the payment of reparation.” For
its part, Guatemala asked the Court to declare the claim inadmissible
on grounds of the nationality of the claimant.
Decision
Guatemala has referred to a well-established principle of international law,...
that ‘it is the bond of nationality between the State and the individual which alone
confers upon the State the right of diplomatic protection’....
Liechtenstein considers itself to be acting in conformity with this principle
and contends that Nottebohm is its national by virtue of the naturalization
conferred upon him. ... Guatemala, on the other hand, requests] the Court ‘to
declare that the claim of the Principality of Liechtenstein is inadmissible’, and
set[s] forth a number of grounds relating to the nationality of Liechtenstein granted
to Nottebohm by naturalization. Thus, the real issue before the Court is the
admissibility of the claim of Liechtenstein in respect of Nottebohm.
In order to decide upon the admissibility of the application, the court must
ascertain whether the nationality conferred on Nottebohm by Liechtenstein ...
bestows upon Liechtenstein a sufficient title to the exercise of protection in respect
of Nottebohm as against Guatemala and therefore entitles it to seise the Court of a
claim relating to him.
Liechtenstein has argued that Guatemala formerly recognized the
naturalization which it now challenges and cannot therefore be heard to put
forward a contention which is inconsistent with its former attitude. ... Reliance has
been placed on the fact that... the Consul-General of
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Guatemala in Zurich entered a visa in the Liechtenstein passport of Mr.
Nottebohm for his return to Guatemala; that on January 29,1940 Nottebohm
informed the Ministry of External Affairs in Guatemala that he had adopted the
nationality of Liechtenstein and therefore requested that the entry relating to him
in the Register of Aliens should be altered accordingly, a request which was
granted on January 31; that on February 9, 1940 a similar amendment was made
to his identity document, and lastly that a certificate to the same effect was issued
to him by the civil registry of Guatemala on July 1,1940.
The acts of the Guatemalan authorities proceeded on the basis of the
statements made to them by the person concerned. ... All of these acts have
reference to the control of aliens in Guatemala and not to the exercise of
diplomatic protection. When Nottebohm thus presented himself before the
Guatemalan authorities, the latter had before them a private individual: there did
not thus come into being any relationship between governments. There was
nothing in all this to show that Guatemala then recognized that the naturalization
conferred upon Nottebohm gave Liechtenstein any title to the exercise of
protection.
In a letter of the Swiss consul of December 15, 1944, to the Minister of
External Affairs, reference is made to the entry on the Black Lists of “Frederick
Nottebohm, a national of Liechtenstein.” ... Guatemala, in its reply ... expressly
stated that it could not “recognise that Mr. Nottebohm, a German subject
habitually resident in Guatemala, has acquired the nationality of Liechtenstein
without changing his habitual residence.” ... There is here an express denial by
Guatemala of Nottebohm’s Liechtenstein nationality....
There is nothing here to show that before the institution of proceedings
Guatemala had recognised Liechtenstein’s title to exercise protection in favor of
Nottebohm and that it is thus precluded from denying such a title. ... Since no
proof has been adduced that Guatemala has recognized the title to the exercise of
protection relied upon by Liechtenstein as being derived from the naturalization
which it granted to Nottebohm, the Court must consider whether such an act of
granting nationality by Liechtenstein directly entails an obligation on the part of
Guatemala to recognize its effect, namely, Liechtenstein’s right to exercise its
protection....
It is for Liechtenstein, as it is for every sovereign State, to settle by its own
legislation the rules relating to the acquisition of its
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145
nationality, and to confer that nationality by naturalization granted by its own
organs in accordance with that legislation. It is not necessary to determine whether
international law imposes any limitations on its freedom of decision in this
domain. Furthermore, nationality has its most immediate, its most far-reaching
and, for most people, its only effects within the legal system of the State
conferring it. Nationality serves above all to determine that the person upon whom
it is conferred enjoys the rights and is bound by the obligations which the law of
the State in question grants to or imposes on its nationals. This is implied in the
wider concept that nationality is within the domestic jurisdiction of the State.
But the issue which the Court must decide is not one which pertains to the
legal system of Liechtenstein. It does not depend on the law or on the decision of
Liechtenstein whether that State is entitled to exercise its protection, in the case
under consideration. To exercise protection, to apply to the Court is to place
oneself on the plane of international law. It is international law which determines
whether a State is entitled to exercise protection and to seise the Court.
The naturalization of Nottebohm was an act performed by Liechtenstein in
the exercise of its domestic jurisdiction. The question to be decided is whether that
act has the international effect here under consideration. International practice
provides many examples of acts performed by States in the exercise of their
domestic jurisdiction which do not necessarily or automatically have international
effect, which are not necessarily and automatically binding on other States or
which are binding on them only subject to certain conditions....
When one State has conferred its nationality upon an individual and another
State has conferred its own nationality on the same person, it may occur that each
of these States, considering itself to have acted in the exercise of its domestic
jurisdiction, adheres to its own view and bases itself thereon in so far as its own
actions are concerned. In so doing, each State remains within the limits of its
domestic jurisdiction.
This situation may arise on the international plane and fall to be considered
by international arbitrators or by the courts of a third State. If the arbitrators or the
courts of such a State should confine themselves to the view that nationality is
exclusively within the domestic jurisdiction of the State, it would be necessary for
them to find that they were
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
confronted by two contradictory assertions made by two sovereign States,
assertions which they would consequently have to regard as of equal weight,
which would oblige them to allow the contradiction to subsist and thus fail to
resolve the conflict submitted to them....
International arbitrators have decided ... numerous cases of dual nationality,
where the question arose with regard to the exercise of protection. They have
given their preference to the real and effective nationality, that which accorded
with the facts, that based on stronger factual ties between the person concerned
and one of the States whose nationality is involved. Different factors are taken into
consideration, and their importance will vary from one case to the next: the
habitual residence of the individual concerned is an important factor, but there are
other factors such as the centre of his interests, his family ties, his participation in
public life, attachment shown by him for a given country and inculcated in his
children, etc.
Similarly, the courts of third States, when they have before them an
individual whom two other States hold to be their national, seek to resolve the
conflict by having recourse to international criteria and their prevailing tendency is
to prefer the real and effective nationality.
The same tendency prevails in the writings of publicists and in practice.
This notion is inherent in the provisions of Article 3, paragraph
2, of the Statute of the Court. National laws reflect this tendency when, inter alia,
they make naturalization dependent on conditions indicating the existence of a
link, which may vary in their purpose or in their nature but which are essentially
concerned with this idea. The Liechtenstein Law of January 4th, 1934, is a good
example.
The practice of certain States which refrain from exercising protection in
favor of a naturalized person when the latter has in fact, by his prolonged absence,
severed his links with what is no longer for him anything but his nominal country,
manifests the view of these States that, in order to be capable of being invoked
against another State, nationality must correspond with the factual situation. A
similar view is manifested in the relevant provisions of the bilateral nationality
treaties concluded between the United States of America and other States since
1868, such as those sometimes referred to as the Bancroft Treaties, and in the PanAmerican Convention, signed at Rio de Janeiro on August 13th, 1906, on the
status of naturalized citizens who resume residence in their country of origin.
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147
The character thus recognized on the international level as pertaining to
nationality is in no way inconsistent with the fact that international law leaves it to
each State to lay down the rules governing the grant of its own nationality. The
reason for this is that the diversity of demographic conditions has thus far made it
impossible for any general agreement to be reached on the rules relating to
nationality, although the latter by its very nature affects international relations. It
has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such
rules to the competence of each State. On the other hand, 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 individual’s genuine connection with the State which
assumes the defense of its citizens by means of protection as against other States.
The requirement that such a concordance must exist is to be found in the
studies carried on in the course of the last thirty years upon the initiative and under
the auspices of the League of Nations and the United Nations. It explains the
provision which the Conference for the Codification of International Law, held at
The Hague in 1930, inserted in Article I of the Convention relating to the Conflict
of Nationality Laws, laying down that the law enacted by a State for the purpose of
determining who are its nationals “shall be recognized by other States in so far as
it is consistent with ... international custom, and the principles of law generally
recognized with regard to nationality.” In the same spirit, Article 5 of the
Convention refers to criteria of the individual’s genuine connections for the
purpose of resolving questions of dual nationality which arise in third States.
According to the practice of States, to arbitral and judicial decisions and to
the opinions of writers, nationality is 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. It may be said to
constitute the juridical expression of the fact that the individual upon whom it is
conferred, either directly by the law or as the result of an act of the authorities, is
in fact more closely connected with the population of the State conferring
nationality than with that of any other State. Conferred by a State, it only entitles
that State to exercise protection vis-d-vis another State, if it constitutes a
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translation into juridical terms of the individual’s connection with the State which
has made him its national.
Diplomatic protection and protection by means of international judicial
proceedings constitute measures for the defense of the rights of the State. As the
Permanent Court of International Justice has said and repeated, “by taking up the
case of one of its subjects and by resorting to diplomatic action or international
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 international
law.”
Since this is the character which nationality must present when it is invoked
to furnish the State which has granted it with a title to the exercise of protection
and to the institution of international judicial proceedings, the Court must ascertain
whether the nationality granted to Nottebohm by means of naturalization is of this
character or, in other words, whether the factual connection between Nottebohm
and Liechtenstein in the period preceding, contemporaneous with and following
his naturalization appears to be sufficiently close, so preponderant in relation to
any connection which may have existed between him and any other State, that it is
possible to regard the nationality conferred upon him as real and effective, as the
exact juridical expression of a social fact of a connection which existed previously
or came into existence thereafter.
Naturalization is not a matter to be taken lightly. To seek and to obtain it is
not something that happens frequently in the life of a human being. It involves his
breaking of a bond of allegiance and his establishment of a new bond of
allegiance. It may have far-reaching consequences and involve profound changes
in the destiny of the individual who obtains it. It concerns him personally, and to
consider it only from the point of view of its repercussions with regard to his
property would be to misunderstand its profound significance. In order to appraise
its international effect, it is impossible to disregard the circumstances in which it
was conferred, the serious character which attaches to it, the real and effective, and
not merely the verbal preference of the individual seeking it for the country which
grants it to him.
At the time of his naturalization, does Nottebohm appear to have been more
closely attached by his tradition, his establishment, his interests, his activities, his
family ties, his intentions for the near future to Liechtenstein than of any other
State? ...
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The essential facts are as follows:
At the date when he applied for naturalization Nottebohm had
been a German national from the time of his birth. He had always
retained his connections with members of his family who had
remained in Germany and he had always had business connections
with that country. His country had been at war for more than a month,
and there is nothing to indicate that the application for naturalization
then made by Nottebohm was motivated by any desire to dissociate
himself from the Government of his country.
He had been settled in Guatemala for 34 years. He had carried
on his activities there. It was the main seat of his interests. He
returned there shortly after his naturalization, and it remained the
center of his interests and of his business activities. He stayed there
until his removal as a result of war measures in 1943. He
subsequently attempted to return there, and he now complains of
Guatemala’s refusal to admit him. There, too, were several members
of his family who sought to safeguard his interests.
In contrast, his actual connections with Liechtenstein were
extremely tenuous. No settled abode, no prolonged residence in that
country at the time of his application for naturalization; the
application indicates that he was paying a visit there and confirms the
transient character of this visit by its request that the naturalization
proceedings should be initiated and concluded without delay. No
intention of settling there was shown at that time or realized in the
ensuing weeks, months or years — on the contrary, he returned to
Guatemala very shortly after his naturalization and showed every
intention of remaining there. If Nottebohm went to Liechtenstein in
1946, this was because of the refusal of Guatemala to admit him. No
indication is given of the grounds warranting the waiver of the
condition of residence, required by the 1934 Nationality Law, which
waiver was implicitly granted to him. There is no allegation of any
economic interests or of any activities exercised or to be exercised in
Liechtenstein, and no manifestation of any intention whatsoever to
transfer all or some of his interests and business activities to
Liechtenstein. It is unnecessary in this connection to attribute much
importance to the promise to pay the taxes levied at the time of his
naturalization. The only links to be discovered between the
Principality and Nottebohm are the short sojourns already referred to
and the presence in Vaduz of one of his brothers: but his brother’s
presence is referred to in his application for naturalization only as a
reference to his good
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conduct. Furthermore, other members of his family have asserted
Nottebohm’s desire to spend his old age in Guatemala.
These facts clearly establish, on the one hand, the absence of
any bond of attachment between Nottebohm and Liechtenstein and,
on the other hand, the existence of a long-standing and close
connection between him and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any
real prior connection with Liechtenstein, nor did it in any way alter
the manner of life of the person upon whom it was conferred in
exceptional circumstances of speed and accommodation. In both
respects, it was lacking in the genuineness requisite in 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 international relations.
Naturalization was asked for not so much for the purpose of
obtaining a legal recognition of Nottebohm’s membership in fact in
the population of Liechtenstein, as it was to enable him to substitute
for his status as a national of a belligerent State that of a national of a
neutral State, with the sole aim of thus coming within the protection
of Liechtenstein but not of becoming wedded to its traditions, its
interests, its way of life or of assuming the obligations — other than
fiscal obligations — and exercising the rights pertaining to the status
thus acquired.
Guatemala is under no obligation to recognize a nationality
granted in such circumstances. Liechtenstein consequently is not
entitled to extend its protection to Nottebohm vis-a-vis Guatemala
and its claim must, for this reason, be held to be inadmissible.
The Court is not therefore called upon to deal with the other
pleas in bar put forward by Guatemala or the conclusions of the
Parties other than those on which it is adjudicating in accordance with
the reasons indicated above.
For these reasons, the Court, by eleven votes to three, holds
that the claim submitted by the Government of the Principality of
Liechtenstein is inadmissible.
As to corporations, a state has jurisdiction over corporations organized
under its laws. Many states assert jurisdiction over corporations whose principal
place of business or registered office is located in their territories. States have also
sought to regulate corporations organized or having their principal place of
business abroad when these corpora
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151
tions are owned or controlled by nationals. This last is controversial. More
controversial still are multi-national corporations which register various addresses
for different purposes. Thus, for instance, executive offices, sales operations,
manufacturing and distribution facilities may each be located in different localities.
These problems, however, are more properly under the domain of conflict of laws.
For maritime vessels, a state has jurisdiction over vessels flying its flag.
(See Lotus case, supra.) Each state determines requirements for registration. But
flags of convenience might be challenged on the ground of lack of sufficient link.
The same principle is generally applicable to aircraft and spacecraft.
Stateless persons
Stateless persons are those who do not have a nationality. They are either de
jure or de facto stateless. De jure stateless persons are those who have lost their
nationality, if they had one, and have not acquired a new one. De facto stateless
persons are those who have a nationality but to whom protection is denied by their
state when out of the state. This is the situation of many refugees.
Since they do not enjoy protection by any state, how are they protected
against violations of their human rights such as by deportation to parts unknown?
The following case offers an answer:
MEJOFF V. DIRECTOR OF PRISONS
90 Phil. 70 (1951)
TUASON, J.:
This is a second petition for habeas corpus by Boris Mejoff,
the first having been denied in a decision of this Court of July 30,
1949. The history of the petitioner’s detention was thus briefly set
forth in that decision, written by Mr. Justice Bengzon:
“The petitioner Boris Mejoff is an alien of Russian descent who
was brought to this country from Shanghai as a secret operative by the
Japanese forces during the latter’s regime in these Islands. Upon
liberation, he was arrested as a Japanese spy, by U.S. Army Counter
Intelligence Corps. Later, he was handed to the Commonwealth
Government for disposition in accordance with Commonwealth Act
No. 682. Thereafter, the People’s Court
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
ordered his release. But the Deportation Board taking his case up,
found that having no travel documents Mejoff was illegally in this
country, and consequently referred the matter to the immigration
authorities. After the corresponding investigation, the Board of
Commissioners of Immigration on April 5, 1948, declared that
Mejoff had entered the Philippines illegally in 1944, without
inspection and admission by the immigration officials at a
designation port of entry and, therefore, it ordered that he be deported
on the first available transportation to Russia. The petitioner was then
under custody, he having been arrested on March 18, 1948. In May
1948, he was transferred to the Cebu Provincial Jail together with
three other Russians to await the arrival of some Russian vessels. In
July and August of that year, two boats of Russian nationality called
at the Cebu Port. But their masters refused to take petitioner and his
companions alleging lack of authority to do so. In October 1948, after
repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has been
confined up to the present time, inasmuch as the Commissioner of
Immigration believes it is for the best interests of the country to keep
him under detention while arrangements for his departure are being
made.”
The Court held the petitioner’s detention temporary and said
that “temporary detention is a necessary step in the process of
exclusion or expulsion of undersirable aliens and that pending
arrangements for his deportation, the Government has the right to
hold the undersirable alien under confinement for a reasonable length
of time.” It took note of the fact, manifested by the Solicitor
General’s representative in the course of the oral argument, that “this
Government desires to expel the alien, and does not relish keeping
him at the people’s expense . . . making efforts to carry out the decree
of exclusion by the highest officer of the land.” No period was fixed
within which the immigration authorities should carry out the
contemplated deportation beyond the statement that “The meaning of
‘reasonable time’ depends upon the circumstances, specially the
difficulties of obtaining a passport, the availability of transportation,
the diplomatic arrangements with the governments concerned and the
efforts displayed to send the deportee away;” but the Court warned
that “under established precedents, too long a detention may justify
the issuance of a writ of habeas corpus.”
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr.
Justice Perfecto, and the writer of this decision dissented. Mr. Jus
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tice Feria and Mr. Justice Perfecto voted for outright discharge of the
prisoner from custody. Mr. Justice Paras qualified his dissent by
stating that he might agree “to a further detention of the herein
petitioner, provided that he be released if after six months, the
Government is still unable to deport him.” This writer joined in the
latter dissent but thought that two months constituted reasonable time.
Over two years having elapsed since the decision aforesaid was
promulgated, the Government has not found ways and means of
removing the petitioner out of the country, and none are in sight,
although, it should be said injustice to the deportation authorities, it
was through no fault of theirs that no ship or country would take the
petitioner.
Aliens illegally staying in the Philippines have no right of
asylum therein (Soewapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289,
290), even if they are “stateless,” which the petitioner claims to be. It
is no less true however, as impliedly stated in this Court’s decision,
supra, that foreign nationals, not enemy, against whom no charge has
been made other than that their permission to stay has expired, may
not indefinitely be kept in detention. The protection against
deprivation of liberty without due process of law and except for
crimes committed against the laws of the land is not limited to
Philippine citizens but extends to all residents, except enemy aliens,
regardless of nationality. Whether an alien who entered the country in
violation of its immigration laws may be detained for as long as the
Government is unable to deport him, is a point we need not decide.
The petitioner’s entry into the Philippines was not unlawful; he was
brought by the armed and belligerent forces of a de facto government
whose decrees were law during the occupation.
Moreover, by its Constitution (Art. II, Sec. 3), the Philippines
“adopts the generally accepted principles of international law as part
of the law of Nation.” And in a resolution entitled “Universal
Declaration Of Human Rights” and approved by the General
Assembly of the United Nations of which the Philippines is a
member, at its plenary meeting on December 10, 1948, the right to
life and liberty and all other fundamental rights as applied to all
human beings were proclaimed. It was there resolved that “All human
beings are bom free and equal in degree and rights” (Art. 1)\ that
“Everyone is entitled to all the rights and freedom set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion,
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
nationality or social origin, property, birth, or other status” (Art.
2) ; that “Every one has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights
granted him by the Constitution or by law” (Art. 8); that “No one
shall be subjected to arbitrary arrest, detention or exile” (Art. 9 ); etc.
The most recent case, as far as we have been able to find, was
that of Staniszewski vs. Watkins (1948), 80 Fed. Supp., 132, which is
nearly foursquare with the case at hand. In that case a stateless
person, formerly a Polish national, resident in the United States since
1911 and many times serving as a seaman on American vessels both
in peace and in war, was ordered excluded from the United States and
detained at Ellis Island at the expense of the steamship company,
when he returned from a voyage on which he had shipped from New
York for one or more European ports and return to the United States.
The grounds for his exclusion were that he had no passport or
immigration visa, and that in 1937 had been convicted of perjury
because in certain documents he represented himself to be an
American citizen. Upon his application for release on habeas corpus,
the Court released him upon his own recognizance. Judge Leibell, of
the United States District Court for the Southern District of New
York, said in part:
“When the return to the writ of habeas corpus came
before this court, I suggested that all interested parties ... make
an effort to arrange to have the petitioner ship out of some
country that would receive him as a resident. He is a nativeborn Pole but the Polish Consul has advised him in writing that
he is no longer a Polish subject. This Government does not
claim that he is a Polish citizen. This attorney says he is
stateless. The Government is willing that he go back to the
ship, but if he were sent back aboard ship and sailed to the Port
(Cherbourg, France) from which he last sailed to the United
States, he would probably be denied permission to land. There
is no other country that would take him, without proper
documents.
“It seems to me that this is a genuine hardship case and
that the petitioner should be released from custody on proper
terms....
“What is to be done with the petitioner? The government
has had him in custody almost seven months and prac
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tically admits it has no place to send him out of this country.
The steamship company, which employed him as one of a
group sent to the ship by the Union, with proper seaman’s
papers issued by the United States Coast Guard, is paying $3 a
day for petitioner’s board at Ellis Island. It is no fault of the
steamship company that petitioner is an inadmissible alien as
the immigration officials describe him....
“I intend to sustain the writ of habeas corpus and order
the release of the petitioner on his own recognizance. He will
be required to inform the immigration officials at Ellis Island
by mail on the 15th of each month, stating where he is
employed and where he can be reached by mail. If the
government does succeed in arranging for petitioner’s
deportation to a country that will be ready to receive him as a
resident, it may then advise the petitioner to that effect and
arrange for his deportation in the manner provided by law.”
Although not binding upon this Court as a precedent, the case
aforecited affords a happy solution to the quandary in which the
parties here find themselves, solution which we think is sensible,
sound and compatible with law and the Constitution. For this reason,
and since the Philippine law on immigration was patterned after or
copied from the American law and practice, we choose to follow and
adopt the reasoning and conclusions in the Stanisze- wski decision
with some modifications which, it is believed, are in consonance with
the prevailing conditions of peace and order in the Philippines.
Premises considered, the writ will issue commanding the
respondents to release the petitioner from custody upon these terms:
The petitioner shall be placed under the surveillance of the
immigration authorities or their agents in such form and manner as
may be deemed adequate to insure that he keep peace and be
available when the Government is ready to deport him. The
surveillance shall be reasonable and the question of reasonableness
shall be submitted to this Court or to the Court of First Instance of
Manila for decision in case of abuse. He shall also put up a bond for
the above purpose in the amount of P5,000 with sufficient surety or
sureties, which bond the Commissioner of Immigration is authorized
to exact by Section 40 of Commonwealth Act No. 613.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
The Protective Principle.
This principle says that a state may exercise jurisdiction over conduct
outside its territory that threatens its security, as long as that conduct is generally
recognized as criminal by states in the international community. (Restatement
402[3]) This conditional clause excludes acts committed in exercise of the liberty
guaranteed an alien by the law of the place where the act was committed.
The examples given of acts covered by the protective principle are plots to
overthrow the government, forging its currency, and plot to break its immigration
regulations. A sample case of this is that of “Lord Haw Haw,” an American citizen
who broadcast messages from Germany seeking to persuade the Allies to
surrender. Until 1940, he held a British passport. After the war, he was convicted
of high treason in the United Kingdom. In upholding the principle, Lord Jowwit of
the House of Lords said: “No principle of comity demands that a state should
ignore the crime of treason committed against it outside its territory. On the
contrary, a proper regard for its own security requires that all those who commit
that crime, whether they commit it within or without the realm should be amenable
to its laws.”1
The limitations on the protective principle are found in United States v.
Yunis?
[. . . Because this principle gives states wide latitude in defining
the parameters of their jurisdiction, the international community has
strictly construed the reach of this doctrine to those offenses posing a
direct, specific threat to national security. See Blakesley, United States
Jurisdiction over Extraterritorial Crime,
73 J.CrimL. & Criminology at 1136; Bassiouini, II International
Criminal Law ch. 2 at 21. Recently, some academicians have urged a
more liberal interpretation of the protective principle when applied to
terroristic activities. Given “the increase in the number of terroristic
threats against United States nationals abroad, there can be no doubt
that the United States has significant security and protective interests
at stake.” Paust, Federal Jurisdiction over Extraterritorial Acts of
Terrorism, 23 VaJ. oflnt’l Law 191, 210 (1983). In this case, the
hijackers never made any demands upon the United States
government nor directly threatened its security.
'Joyce v. Director of Public
Prosecutions, House of Lords
1946 2681 S
896 (1988)
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157
Indeed, it was almost happenstance that three American nationals
were on board the aircraft. Given the regional focus of the hijacking, a
court would have to adopt an expansive view of the principle to assert
jurisdiction over Yunis. Since jurisdiction is available under the
universality and passive personality principle, there is no reason to
reach out and rely on the protective principle as well.]
The Universality Principle.
The universality principle recognizes that certain activities, universally
dangerous to states and their subjects, require authority in all community members
to punish such acts wherever they may occur, even absent a link between the state
and the parties or the acts in question. This principle started with piracy. Piracy in
international law means any illegal act of violence or depredation committed for
private ends on the high seas or outside the territorial control of any state. Now the
principle covers not just piracy but also genocide, crimes against humanity, war
crimes, aircraft piracy and terrorism. There is also a growing support for universal
jurisdiction over crimes against human rights.
The Statute of the new International Criminal Court defines these crimes,
thus:
Article 6. Genocide
For the purpose of this Statute, “genocide" means any of the
following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a)
Killing members of the group;
(b)
Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part;
(d)
Imposing measures intended to prevent births within the
(e)
Forcibly transferring children of the group to another
group;
group.
Article 7. Crimes against humanity
1.
For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
a wide-spread or systematic attack directed against any civilian
population, with knowledge of the attack:
(a)
Murder;
(b)
Extermination;
(c)
Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity;
(h) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds
that are universally recognized as impermissible under
international law, in connection with any act referred to in this
paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character in
tentionally causing great suffering, or serious injury to body or
to mental or physical health.
2.
For the purpose of paragraph 1:
(a) “Attack directed against any civilian population"
means a course of conduct involving the multiple commission
of acts referred to in paragraph 1 against any civilian
population, pursuant to or in furtherance of a State or
organizational policy to commit such attack;
(b) “Extermination ” includes the intentional infliction
of conditions of life, inter alia the deprivation of access to food
and medicine, calculated to bring about the destruction of part
of a population;
(c) “Enslavement” means the exercise of any or all of
the powers attaching to the right of ownership over a person
and includes the exercise of such power in the course of
trafficking in persons, in particular women and children;
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(d) “Deportation or forcible transfer of population"
means forced displacement of the persons concerned by
expulsion or other coercive acts from the area in which they are
lawfully present, without grounds permitted under international
law;
(e)
“Torture" means the intentional infliction of
severe pain or suffering, whether physical or mental, upon a
person in the custody or under the control of the accused;
except that torture shall not include pain or suffering arising
only from, inherent in or incidental to, lawful sanctions;
(f)
“Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of
affecting the ethnic composition of any population or carrying
out other grave violations of international law. This definition
shall not in any way be interpreted as affecting national laws
relating to pregnancy;
(g)
“Persecution ” means the intentional and severe
deprivation of fundamental rights contrary to international law
by reason of the identity of the group or collectivity;
(h) “The crime of apartheid" means inhumane acts of
a character similar to those referred to in paragraph 1,
committed in the context of an institutionalized regime of
systematic oppression and domination by one racial group over
any other racial group or groups and committed with the
intention of maintaining that regime;
(i)
“Enforced disappearance of persons” means the
arrest, detention or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization, followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing
them from the protection of the law for a prolonged period of
time.
3.
For the purpose of this Statute, it is understood that the
term “gender” refers to the two sexes, male and female, within the
context of society. The term “gender” does not indicate any meaning
different from the above.
Article 8. War crimes
1.
The Court shall have jurisdiction in respect of war crimes
in particular when committed as part of a plan or policy or as part of a
large-scale commission of such crimes.
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2.
For the purpose of this Statute, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12
August 1949, namely, any of the following acts against persons
or property protected under the provisions of the relevant
Geneva Convention. ...
Article 8 enumerates in detail the war crimes under the Geneva Convention.
The following are a number of cases illustrative of the universality principle:
F1LARTIGA V. PENA-IRALA 630 FJD 876. (1980)
[This was a wrongful death action which was brought by two
nationals of Paraguay, the father and sister of a 17-year old
Paraguayan, who, it was alleged, was tortured to death in Paraguay by
the defendant Pena-Irala who at the time was Inspector-General of the
police. Jurisdiction was claimed principally on the basis of the Alien
Tort Statute (28 U.S.C. & 1350). The Court held that deliberate
torture under the color of official authority violated the universal rules
of international law regardless of the nationality of the parties. In
reaching the conclusion that the prohibition of torture has become part
of customary international law, the Court referred as evidence to the
Universal Declaration of Human Rights and as particularly relevant,
the 1975 Declaration on the Protection of all Persons from Torture.
[The relevant portions of the Court’s opinion read as follows:]
The Declaration goes on to provide that “[w]here it is proved
that an act of torture or other cruel, inhuman or degrading treatment
or punishment has been committed by or at the instigation of a public
official, the victim shall be afforded redress and compensation, in
accordance with national law.” This Declaration, like the Declaration
of Human Rights before it, was adopted without dissent by the
General Assembly. Nayar, “Human Rights: The United Nations and
United States Foreign Policy,” 19 Harv. Int’l LJ. 813, 816 n. 18
(1978).
These U.N. declarations are significant because they specify with great
precision the obligations of member nations under the Charter.
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161
Since their adoption, “[m]embers can no longer contend that they do not know
what human rights they promised in the Charter to promote.” Sohn, “A Short
History of United Nations Documents on Human Rights," in the The United
Nations and Human Rights, 18th Report of the Commission (Commission to
Study the Organization of Peace [Ed., 1968]).... Accordingly, it has been observed
that the Universal Declaration of Human Rights “no longer fits into the dichotomy
of ‘binding treaty’ against ‘non-binding pronouncement,’ but is rather an authoritative statement of the international community.” E. Schwelb, Human Rights and
the International Community 70 (1964). Thus, a Declaration creates an
expectation of adherence, and “insofar as the expectation is gradually justified by
State practice, a declaration, may by custom become recognized as laying down
rules binding upon the States.” 34 UN. ESCOR, supra. Indeed, several
commentators have concluded that the Universal Declaration has become, in toto,
a part of binding, customary international law. Nayar, supra, at 816-17; Waldock,
“Human Rights in Contemporary International Law and the Significance of the
European Convention, ” I.C.L.Q., Supp.Publ. No. 11 at 15 (1965).
Turning to the act of torture, we have little difficulty discerning its universal
renunciation in the modern usage and practice of nations. Smith, supra, 18 US. (5
Wheat.) at 160-61,5 L.Ed. 57. The international consensus surrounding torture has
found expression in numerous international treaties and accords.... The substance
of these international agreements is reflected in modem municipal — i.e., national
— law as well. Although torture was once a routine concomitant with criminal
interrogations in many nations, during the modem and hopefully more enlightened
era it has been universally renounced. According to one survey, torture is
prohibited, expressly or implicitly, by the constitutions of over fifty-five nations,
including both the United States and Paraguay. Our State Department reports a
general recognition of this principle:
There now exists an international consensus that recognizes basic human
rights and obligations owed by all governments to their citizens. ... There is no
doubt that these rights are often violated; but virtually all governments
acknowledge their validity.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
ATTORNEY GENERAL OF ISRAEL v. EICHMANN Trial Court
Decision
36 Intl. L. Rep. 5 (Israel, Dist. Ct. Jerusalem 1961)
Adolf Eichmann 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 several other countries
before and during World War II. At the end of the war, he escaped to
Argentina where he lived and worked under an alias until May,
1960 when he was kidnapped by Israeli agents. Argentina complained to the Security Council about this clear violation of Argentine
sovereignty. The Security Council, while making it clear that it did
not condone Eichmann’s crimes, declared that, “acts such as that
under consideration [the kidnapping of Eichmann] which affect the
sovereignty of a Member State and therefore cause international
friction, may, if repeated, endanger international peace and security.”
The Security Council requested the Government of Israel “to make
appropriate reparation in accordance with the Charter of the United
Nations and the rules of international law.” Argentina did not demand
the return of Eichmann, and in August,
1960, the Argentine and Israeli governments resolved in a joint
communique “to regard as closed the incident which arose out of the
action taken by citizens of Israel, which infringed the fundamental
rights of the State of Argentina.”
Eichmann was then tried in Israel under Israel’s Nazi Collaborators Law (a law enacted after Israel became a state in 1948).
He was found guilty and the conviction was subsequently upheld by
the Supreme Court of Israel. On May 31,1962, Eichmann went to the
gallows, the only person ever formally executed by the State of
Israel.
Learned defence counsel... submits:
(a) that the Israel Law, by imposing punishment for acts done
outside the boundaries of the State and before its establishment, against
persons who were not Israel citizens, and by a person who acted in the
course of duty on behalf of a foreign country (“Act of State”), conflicts with
international law and exceeds the powers of the Israel Legislature;
(b) that the prosecution of the accused in Israel following his
abduction from a foreign country conflicts with international law and
exceeds the jurisdiction of the Court....
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163
From the point of view of international law, the power of the State of
Israel to enact the Law in question or Israel’s “right to punish” is based,
with respect to the offences in question, on a dual foundation: the universal
character of the crimes in question and their specific character as intended to
exterminate the Jewish people....
12. The abhorrent crimes defined in this Law are not crimes under
Israel law alone. These crimes, which struck at the whole of mankind and
shocked the conscience of nations, are grave offenses against the law of
nations itself (delicta juris gentium). Therefore, so far from international
law negating or limiting the jurisdiction of countries with respect to such
crimes, international law is, in the absence of an International Court, in need
of the judicial and legislative organs of every country to give effect to its
criminal interdictions and to bring the criminals to trial. The jurisdiction to
try crimes under international law is universal....
26. ... It is superfluous to add that the “crime against the Jewish
people,” which constitutes the crime of “genocide”, is nothing but the
gravest type of “crime against humanity” (and all the more so because both
under Israel law and under the Convention a special intention is requisite for
its commission, an intention that is not required for the commission of a
“crime against humanity”). Therefore, all that has been said in the
Nuremberg principles about “crimes against humanity” applies a fortiori to
crime against the Jewish people.” ...
27. ... It is indeed difficult to find a more convincing instance of a
just retroactive law than the legislation providing for the punishment of war
criminals and perpetrators of crimes against humanity and against the
Jewish people, and all the reasons justifying the Nuremberg judgments
justify eo ipse the retroactive legislation of the Israel legislator. ... The
accused in this case is charged with the implementation of the plan for the
“final solution of the problem of the Jews.” Can anyone in his right mind
doubt the absolute criminality of such acts? ...
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
28. ... The contention of learned counsel for the defense
that it is not the accused but the State on whose behalf he had acted, who is
responsible for his criminal acts is only true as to its second part. It is true
that under international law Germany bears not only moral, but also legal,
responsibility for all the crimes that were committed as its own “acts of
State,” including the crimes attributed to the accused. But that responsibility
does not detract one iota from the personal responsibility of the accused for
his acts....
EICHMANN V. ATTORNEY-GENERAL OF ISRAEL Supreme
Court of Israel (1962) 136 IIJl. 277
Judgment Per Curiam:
The crimes created by the Law and of which the appellant was
convicted must be deemed today to have always borne the stamps of
international crimes, banned by international law and entailing
individual criminal liability. It is the particular universal character of
these crimes that vests in each State the power to try and punish any
who assisted in their commission. . . . [Reference the Genocide
Convention and the Nuremberg judgment]..
... As is well known, the rules of the law of nations are not
derived solely from international treaties and crystallized international
usage. In the absence of a supreme legislative authority and
international codes, the process of its evolution resembles that of the
common law;... its rules are established from case to case, by analogy
with the rules embodied in treaties and in intentional custom, on the
basis of the “general” principles of law recognized by civilized
nations,” and in the light of the vital international needs that impel an
immediate solution. A principle which constitutes a common
denominator for the judicial systems of numerous countries must
clearly be regarded as a “general principle of law recognized by
civilized nations.” ... [C]ustomary international law is never stagnant,
but is rather in a process of constant growth....
... [As to] the features which identify crimes that have long
been recognized by customary international law[,] ... they constitute
acts which damage vital international interests ... they impair
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the foundations and security of the international community; they
violate universal moral values and humanitarian principles which are
at the root of the systems of criminal law adopted by civilized nations.
The underlying principle in intentional law that governs such crimes
is that the individual who has committed any of them and who, at the
time of his act, may be presumed to have had a thorough
understanding of its heinous nature must account in law for his
behavior. It is true that intentional law does not establish explicit and
graduated criminal sanctions; that there is not as yet in existence
either an intentional Criminal Court, or intentional machinery for the
imposition of punishment. But, for the time being, intentional law
surmounts these difficulties ... by authorizing the countries of the
world to mete out punishment for the violation of its provisions. This
they do by enforcing these provisions either directly or by virtue of
the municipal legislation which has adopted and integrated them....
The classic example of a “customary” international crime ... is
that of piracy jure gentium. ... [Another] example ... is that of a “ war
crime “ in the conventional sense. ... the group of acts committed by
members of the armed forces of the enemy which are contrary to the
“’laws and customs of war.” individual criminal responsibility
because they undermine the foundations of intentional society and are
repugnant to the conscience of civilized nations. When the belligerent
State punishes for such acts, it does so not only because persons who
were its nationals ... suffered bodily harm or material damage, but
also, and principally, because they involve the perpetration of an
intentional crime in the avoidance of which all the nations of the
world are interested....
In view of the characteristic traits of international crimes and
the organic development of the law of nations — a development that
advances from case to case under the impact of the humane
sentiments common to civilized nations, and under the pressure of the
needs that are vital for the survival of mankind and for ensuring the
stability of the world order it definitely cannot be said that when the
Charter of the Nuremburg International Military Tribunal was signed
and the categories of “war crimes” and “crimes against humanity”
were defined in it, this merely amounted to an act of legislation by the
victorious countries....
... [The interest in preventing and imposing punishment for acts
comprised in the category in question especially when they are
perpetrated on a very large scale — must necessarily extend beyond
the borders of the State to which the perpetrators belong
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
and which evinced tolerance or encouragement of their outrages; for
such acts can undermine the foundations of the international
community as a whole and impair its very stability....
If we are to regard customary international law as a developing
progressive system, the criticism becomes devoid of value.... [E]ver
since the Nuremberg Tribunal decided this question, that very
decision must be seen as a judicial act which establishes a
“precedent” defining the rule of international law. In any event, it
would be unseemly for any other court to disregard such a rule and
not to follow it. ...
If there was any doubt as to this appraisal of the ‘“Nuremberg
Principles’ as principles that have formed part of customary
international law since time immemorial,” such doubt has been
removed by ... the United Nations Resolution on the Affirmation of
the Principles of International Law Recognized by the Charter and
Judgment of the Nuremberg Tribunal and that affirming that
Genocide is a crime under intentional law ... and as [is seen] in the
advisory opinion of 1951 ... the principles inherent in the [Genocide]
Convention — as distinct from the contractual obligations embodied
therein — had already been part of customary intentional law at the
time of the shocking crimes which led to the Resolution and the
Convention....
... [T]he crimes established in the Law of 1950 ... must be seen
today as acts that have always been forbidden by customary
international law — acts which are of a “universal” criminal character
and entail individual criminal responsibility. ... [T]he enactment of
the Law was not, from the point of view of international law, a
legislative act that conflicted with the principle nulla poena or the
operation of which was retroactive, but rather one by which the
Knesset gave effect to intentional law and its objectives....
... [I]t is the universal character of the crimes in question which
vests in every State the power to try those who participated in the
preparation of such crimes, and to punish them therefor....
One of the principles whereby States assume, in one degree or
another, the power to try and punish a person for an offence he has
committed is the principle of universality. Its meaning is, in essence,
that that 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. This principle has wide support and is universally acknowledged
with respect to the offence of piracy jure
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167
gentium.... [One view] holds that it cannot be applied to any other
offence, lest this entail excessive interference with the competence of
the State in which the offence was committed.
The Passive Personality Principle.
The Comment on § 402 of Third Restatement says: “The passive personality
principle asserts that a state may apply law — particularly criminal law — to an
act committed outside its territory by a person not its national where the victim of
the act was its national. The principle has not been ordinarily accepted for ordinary
torts or crimes, but it is increasingly accepted as applied to terrorist and other
organized attacks on a state’s nationals by reason of their nationality, or to
assassination of a state’s diplomatic representatives or other officials.”
UNITED STATES v. FAWAZ YUNIS 681 FJSupp. 8961 (1988)
This criminal proceeding and indictment arise from the
hijacking of a Jordanian civil aircraft, Royal Jordanian Airlines
(“ALIA”) Flight 402, on June 11, and 12, 1985. There is no dispute
that the only nexus to the United States was the presence of several
American nationals on board the flight. The airplane was registered in
Jordan, flew the Jordanian flag and never landed on American soil or
flew over American airspace.
On the morning of June 11, the aircraft was positioned at the
Beirut International Airport, Beirut, Lebanon, for a scheduled
departure to Amman, Jordan. As the 50-60 passengers boarded,
several Arab men, one allegedly the defendant, stormed the plane and
ordered the pilot to fly to Tunis, Tunisia where a meeting of the Arab
League Conference was underway. The airplane departed from Beirut
with all passengers, including the Americans, held hostage. The plane
made a short landing in Lamaco, Cyprus where additional fuel was
obtained. It then proceeded to Tunis where landing privileges were
denied. The airplane flew to Palermo, Sicily, where it was allowed to
replenish its fuel and food supply. Thereafter, it lifted off, destined
once more for Tunis. Again, entry was denied and the pilot returned
to Beirut. On the morning of June 12th, it took off for Damascus,
Syria. However, the Syrian authorities also denied landing privileges.
Thus, after criss-crossing the Mediterranean Sea area for more than
30 hours, the hijackers were forced to return to Beirut, their point of
initial departure.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
After landing, the hostages were directed to exit the aircraft.
The hijackers then called an impromptu press conference and the
defendant Yunis allegedly read a speech, which he originally
intended to give to the delegates of the Arab League Conference then
meeting in Tunis. Following the speech, the hijackers blew up the
Jordanian aircraft, quickly left the scene and vanished into the Beirut
landscape.
Between June 11 and 12, 1985, ALIA Flight 402 never landed
on or flew over American space. Its flightpath was limited to an area
within and around the Mediterranean Sea. Based on the absence of
any nexus to United States territory, Yunis has moved to dismiss the
entire indictment, arguing that no United States federal court has
jurisdiction to prosecute a foreign national for crimes committed in
foreign airspace and on foreign soil. He further claims that the
presence of the American nationals on board the aircraft is an
insufficient basis for exercising jurisdiction under principles of
international law.
Defendant’s motion raises several threshold inquiries: whether
or not there is a basis for jurisdiction under international law, and if
so, whether Congress intended to and had authority to extend
jurisdiction of our federal courts over criminal offenses and events
which were committed and occurred overseas and out of the
territorial jurisdiction of such courts.
II.
ANALYSIS
A. JURISDICTION UNDER INTERNATIONAL LAW
The parties agree that there are five traditional bases of jurisdiction over
extraterritorial crimes under international law: Territorial, wherein jurisdiction is
based on the place where the offense is committed; National, wherein jurisdiction
is based on the nationality of the offender; Protective, wherein jurisdiction is
based on whether the national interest is injured; Universal, wherein jurisdiction is
conferred in any forum that obtains physical custody of the perpetuator of certain
offenses considered particularly heinous and harmful to humanity. Passive
personal, wherein jurisdiction is based on the nationality of the victim.
These general principles were developed in 1935 by a Harvard Research
Project in an effort to codify principles of jurisdiction under
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169
international law. See Harvard Research in International Law, Jurisdiction with
Respect to Crime, 29 AmJlnt’l L. 435, 445 (Supp.1935). Most courts, including
our Court of Appeals, have adopted the Harvard Research designations on
jurisdiction. ... Several reputable treatises have also recognized the principles: L.
Henkin, International Law Cases and Materials 447 (1980); A. D’Amato,
International Law and World Order 564 (1980).
The Universal and the Passive Personal principle appear to offer potential
bases for asserting jurisdiction over the hostage-taking and aircraft piracy charges
against Yunis. However, his counsel argues that the Universal principle is not
applicable because neither hostage-taking nor aircraft piracy are heinous crimes
encompassed by the doctrine. He urges further, that the United States does not
recognize Passive Personal as a legitimate source of jurisdiction. The government
flatly disagrees and maintains that jurisdiction is appropriate under both.
1.
Universal Principle
[1] The Universal principle recognizes that certain offenses are so heinous
and so widely condemned that “any state if it captures the offender may prosecute
and punish that person on behalf of the world community regardless of the
nationality of the offender or victim or where the crime was committed.” M.
Bassiouini, II International Criminal Law, Ch. 6 at 298 (Ed. 1986). The crucial
question for purposes of defendant’s motion is how crimes are classified as
“heinous” and whether aircraft piracy and hostage taking fit into this category.
Those crimes that are condemned by the world community and subject to
prosecution under the Universal principal are often a matter of international
conventions or treaties. See Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir.
1985). (Treaty against genocide signed by a significant number of states made that
crime heinous; therefore, Israel had proper jurisdiction over nazi war criminal
under the Universal principle.)
Both offenses are the subject of international agreements. A majority of
states ii\ the world community including Lebanon, have signed three treaties
condemning aircraft piracy: The Tokyo Convention, The Hague Convention, and
The Montreal Convention. The Hague and Montreal Conventions explicitly rely
on the princ^le of Universal jurisdiction in mandating that all states “take such
measures as may
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
be necessary to establish its jurisdiction over the offences ... where the alleged
offender is present in its territory.” Hague Convention Art. 4 s 2; Montreal
Convention Art. 5 s 2. Further, those treaties direct that all “contracting states ... of
which the alleged offender is found,... shall, be obliged, without exception
whatsoever and whether or not the offense was committed in its territory, to
submit the case to its competent authorities for the purpose of prosecution.”
Hague Convention, Art. 7; Montreal Convention, Art. 7. (emphasis added) These
two provisions together demonstrate the international community’s strong
commitment to punish aircraft hijackers irrespective of where the hijacking
occurred.
The global community has also joined together and adopted the
International Convention for the Taking of Hostages, an agreement which
condemns and criminalizes the offense of hostage taking. Like the conventions
denouncing aircraft piracy, this treaty requires signatory states to prosecute any
alleged offenders “present in its territory.”
In light of the global efforts to punish aircraft piracy and hostage taking,
international legal scholars unanimously agree that these crimes fit within the
category of heinous crimes for purposes of asserting universal jurisdiction. See M.
Bassiouini, II International Criminal Law Ch. 2 at 31-32; McCredie,
Contemporary Uses of Force Against Terrorism, 1986 GaJ. oflnt’l & Comp.L.
435,439 (1986); Bazyler, Capturing the Terrorist in the Wild Blue Yonder, 8
Whittier L.Rev. 685,687 (1986); Blakesley, United States Jurisdiction over
Extraterritorial Crime, 73 J. ofCrim.L. & Criminology 1109,1140 (1982). In The
Restatement (Revised) of Foreign Relations Law of the United States, a source
heavily relied upon by the defendant, aircraft hijacking is specifically identified as
a universal crime over which all states should exercise jurisdiction.
Our Circuit has cited the Restatement with approval and determined that the
Universal principle, standing alone, provides sufficient basis for asserting
jurisdiction over an alleged offender. See Tel-Oren v. Libyan Arab Republic, 726
F.2d at 781, n. 7. (“The premise of universal jurisdiction is that a state ‘may
exercise jurisdiction to define and punish certain offenses recognized by the
community of nations as of universal concern,’... even where no other recognized
basis of jurisdiction is present.”) Therefore, under recognized principles of
international law, and the law of thip Circuit, there is clear authority to assert
jurisdiction over Yunis for the offenses of aircraft piracy and hostage taking.
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JURISDICTION OF STATES
2.
171
Passive Personality Principle
This principle authorizes states to assert jurisdiction over offenses
committed against their citizens abroad. It recognizes that each state has a
legitimate interest in protecting the safety of its citizens when they journey outside
national boundaries. Because American nationals were on board the Jordanian
aircraft, the government contends that the Court may exercise jurisdiction over
Yunis under this principle. Defendant argues that this theory of jurisdiction is
neither recognized by the international community nor the United States and is an
insufficient basis for sustaining jurisdiction over Yunis.
Although many international legal scholars agree that the principle is the
most controversial of the five sources of jurisdiction, they also agree that the
international community recognizes its legitimacy. Most accept that “the
extraterritorial reach of a law premised upon the ... principle would not be in doubt
as a matter of international law.” Paust, Jurisdiction and Nonimmunity, 23 Va. J.
oflnt’l Law, 191, 203 (1983). More importantly, the international community
explicitly approved of the principle as a basis for asserting jurisdiction over
hostage takers. As noted above, supra p. 9, the Hostage Taking Convention set
forth certain mandatory sources of jurisdiction. But it also gave each signatory
country discretion to exercise extraterritorial jurisdiction when the offense was
committed “with respect to a hostage who is a national of that state if that state
considers it appropriate.” Art. 5(a)(d). Therefore, even if there are doubts
regarding the international community’s acceptance, there can be no doubt
concerning the application of this principle to the offense of hostage taking, an
offense for which Yunis is charged. See M. Bassiouni, II International Criminal
Law ch. 4 at 120.
Defendant’s counsel correctly notes that the Passive Personal principle
traditionally has been an anathema to United States lawmakers. But his reliance on
the Restatement (Revised) of Foreign Relations Laws for the claim that the United
States can never invoke the principle is misplaced. In the past, the United States
has protested any assertion of such jurisdiction for fear that it could lead to
indefinite criminal liability for its own citizens. This objection was based on the
belief that foreigners visiting the United States should comply with our laws and
should not be permitted to carry their laws with them. Otherwise Americans would
face criminal prosecutions for actions unknown to
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
them as illegal. However, in the most recent draft of the Restatement, the authors
noted that the theory “has been increasingly accepted when applied to terrorist and
other organized attacks on a state’s nationals by reason of their nationality, or to
assassinations of a state’s ambassadors, or government officials.” Restatement
(Revised) s 402, comment g (Tent. Draft No. 6). See also McGinley, The Achillo
Lauro Affair-Implications for International Law, 52 TennLRev. 691, 713 (1985).
The authors retreated from their wholesale rejection of the principle, recognizing
that perpetrators of crimes unanimously condemned by members of the
international community, should be aware of the illegality of their actions.]
Therefore, qualified application of the doctrine to serious and universally
condemned crimes will not raise the specter of unlimited and unexpected criminal
liability.
Finally, this case does not present the first time that the United States has
invoked the principle to assert jurisdiction over a hijacker who seized an American
hostage on foreign soil. The government relied on this very principle when it
sought extradition of Muhammed Abbas Zaiden, the leader of the terrorists who
hijacked the Achillo Lauro vessel in Egyptian waters and subsequently killed Leon
Klinghoffer, an American citizen. As here, the only connection to the United
States was Klinghoffer’s American citizenship. Based on that link, an arrest
warrant was issued charging Abbas with hostage taking, conspiracy and piracy. Id.
at 719; See also N.Y. Times, Oct. 16,1985 s 1 at 1 col. 6.
Thus, the Universal and Passive Personality principles, together, provide
ample grounds for this Court to assert jurisdiction over Yunis. In fact, reliance on
both strengthens the basis for asserting jurisdiction. Not only is the United States
acting on behalf of the world community to punish alleged offenders of crimes
that threaten the very foundations of world order, but the United States has its own
interest in protecting its nationals.
Conflicts of jurisdiction.
Since there are various accepted principles for assuming jurisdiction, more
than one state may have a valid claim to jurisdiction. U.S. courts have attempted to
develop more sophisticated modes of resolving conflict of jurisdiction. Three
modes are given below.
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173
The Balancing Test
In Timberlane Lumber Co. v. Bank of America? the question was whether
to assume jurisdiction in a Sherman Act case involving acts emanating from
Honduras. The court employed a tripartite analysis to determine whether to
assume jurisdiction or not. First, was there an actual or intended effect on
American foreign commerce. Second, is the effect sufficiently large to present a
cognizable injury to the plaintiffs and, therefore, a civil violation of the anti-trust
laws. Third, are the interests of, and link to, the United States . . . including effects
on American foreign commerce sufficiently strong, vis-d-vis those of other
nations, to justify an assertion of extraordinary authority. If the answer is yes to all
these, then the court will assume jurisdiction.
International Comity
Even when a state has basis for exercising jurisdiction, it will refrain from
doing so if its exercise will be unreasonable. This is treated in Hartford Fire
Insurance Co. v. California,4 but the principle involved is summed up in Third
Restatement §§ 403. Unreasonableness is determined by evaluating various
factors, such as the link of the activity to the territory of the regulating state, the
connection, such as nationality, residence, or economic activity, between the
regulating state and the person principally responsible for the activity to be
regulated, the character of the activity to be regulated, the existence of justified
expectations that might be protected or hurt by the regulation, the likelihood of
conflict with regulation by another state.
Forum non conveniens
The principle of forum non conveniens is well-stated in the following
excerpt from a Scottish decision:
If in the whole circumstances of the case it be discovered that there is
a real unfairness to one of the suitors in permitting the choice of a forum
which is not the natural or proper forum, either on the ground of
convenience of trial or the residence or domicile of parties or of its being the
locus contractus, or locus solutionis, then the doctrine of forum non
conveniens is properly applied.
3
549 F2d 597.
4
509 US
764(1993)
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The application is discretionary with the court. Some of the interests which
the court needs to weigh are divided into private interest factors and public interest
factors. The private interest factors are access to sources of proof, availability of
compulsory process for unwilling witnesses and other personal problems which
make trial easy, expeditious and inexpensive. Public interest factors include
congestion, desire to settle local controversies at home, and having the case tried
in a forum at home with the applicable law. Forum non conveniens presumption is
with the plaintiff. Piper Aircraft Co. v. Reyno,5 is a leading application of the
principle.
Extradition.
Extradition is the surrender of an individual by the state within whose
territory he is found to the state under whose laws he is alleged to have committed
a crime or to have been convicted of a crime. It is a process that is governed by
treaty. The legal right to demand extradition and the correlative duty to surrender a
fugitive exist only when created by treaty. A treaty may cover specific crimes only
or all offenses considered criminal by both states. Today most treaties exclude
religious and political offenses, although political offenses have never been
precisely defined. But a state may surrender a fugitive if surrendering him is not
contrary to the state’s constitution.
The following principles govern extradition: (1) No state is obliged to
extradite unless there is a treaty; (2) Differences in legal system can be an obstacle
to interpretation of what the crime is; (3) Religious and political offenses are not
extraditable.
The procedure for extradition is normally through diplomatic channels. The
following case of United States v. Alvarez-Chain is an example of how
extradition rules can be bypassed.
UNITED STATES v. ALVAREZ-MACHAIN 504UJS.655 (1992)
CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
The issue in this case is whether a criminal defendant, abducted
to the United States from a nation with which it has an
5
454U.S. 235 (1981).
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JURISDICTION OF STATES
extradition treaty, thereby acquires a defense to the jurisdiction of this
country’s courts. We hold that he does not, and that he may be tried in
federal district court for violations of the criminal law of the United
States.
Accused was indicted for participating in the kidnap and
murder of United States Drug Enforcement Administration (DEA)
special agent Enrique Camarena-Salazar and a Mexican pilot working
with Camarena, Alfredo Zavala-Avelar. The DEA believes that
respondent, a medical doctor, participated in the murder by prolonging agent Camarena’s life so that others could further torture and
interrogate him. On April 2, 1990, respondent was forcibly 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. The District Court concluded that DEA agents were
responsible for respondent’s abduction, although they were not
personally involved in it. United States v. Caro-Quintero, 745 FSupp.
599, 602-604, 609 (CD Cal. 1990).
Respondent moved to dismiss the indictment, claiming that his
abduction constituted outrageous governmental conduct, and that the
District Court lacked jurisdiction to try him because he was abducted
in violation of the extradition treaty between the United States and
Mexico. ... The District Court rejected the outrageous governmental
conduct claim, but held that it lacked jurisdiction to try respondent
because his abduction violated the Extradition Treaty. The District
Court discharged respondent and ordered that he be repatriated to
Mexico. Caro-Quintero, supra, at 614.
The Court of Appeals affirmed the dismissal of the indictment
and the repatriation of respondent...
In Ker v. Illinois, 119 U.S. 436 (1886) ... written by Justice
Miller ... we addressed the issue of a defendant brought before the
court by way of a forcible abduction. Frederick Ker had been tried
and convicted in an Illinois court for larceny; his presence before the
court was procured by means of forcible abduction from Peru. A
messenger was sent to Lima with the proper warrant to demand Ker
by virtue of the extradition treaty between Peru and the United States.
The messenger, however, disdained reliance on the treaty processes,
and instead forcibly kidnapped Ker and brought him to the United
States. We ... rejected Ker’s due process argument more broadly,
holding in line with “the highest authorities,” that such forcible
abduction is no sufficient reason why the party should not
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
answer when brought within the jurisdiction of the court which has
the right to try him for such an offence, and presents no valid
objection to his trial in such court. Ker, supra, at 444.
In Frisbie v. Collins, 342 US. 519, rehearing denied, 343 U.S.
937 (1952), we applied the rule in Ker to a case in which the
defendant had been kidnaped in Chicago by Michigan officers and
brought to trial in Michigan. We upheld the conviction over objections based on the Due Process Clause and the Federal Kidnapping
Act, and stated:
“This Court has never departed from the rule announced
in [Ker] that the power of a court to try a person for crime is
not impaired by the fact that he had been brought within the
court’s jurisdiction by reason of a ‘forcible abduction.’ No
persuasive reasons are now presented to justify overruling this
line of cases. They [504 U.S. 655,662] rest on the sound basis
that due process of law is satisfied when one present in court is
convicted of crime after having been fairly apprized of the
charges against him and after a fair trial in accordance with
constitutional procedural safeguards. There is nothing in the
Constitution that requires a court to permit a guilty person
rightfully convicted to escape justice because he was brought to
trial against his will.” Frisbie, supra, at 522 (citation and
footnote omitted).
In construing a treaty, as in construing a statute, we first look to
its terms to determine its meaning. ... The Treaty says nothing about
the obligations of the United States and Mexico to refrain from
forcible abductions of people from the territory of the other nation, or
the consequences under the Treaty if such an abduction occurs....
More critical to respondent’s argument is Article 9 of the
Treaty, which provides:
“1. Neither Contracting Party shall be bound to deliver
up its own nationals, but the executive authority of the
requested Party shall, if not prevented by the laws of that Party,
have the power to deliver them up if, in its discretion, it be
deemed proper to do so.
“2. If extradition is not granted pursuant to paragraph 1
of this Article, the requested Party shall submit the case to its
competent authorities for the purpose of prosecu-
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tion, provided that Party has jurisdiction over the offense.”
Id., at 5065. [504 US. 655, 664]
According to respondent, Article 9 embodies the terms of the
bargain which the United States struck: If the United States wishes to
prosecute a Mexican national, it may request that individual’s
extradition. Upon a request from the United States, Mexico may
either extradite the individual or submit the case to the proper
authorities for prosecution in Mexico. In this way, respondent
reasons, each nation preserved its right to choose whether its nationals
would be tried in its own courts or by the courts of the other nation.
This preservation of rights would be frustrated if either nation were
free to abduct nationals of the other nation for the purposes of
prosecution. More broadly, respondent reasons, as did the Court of
Appeals, that all the processes and restrictions on the obligation to
extradite established by the Treaty would make no sense if either
nation were free to resort to forcible kidnapping to gain the presence
of an individual for prosecution in a manner not contemplated by the
Treaty. Verdugo, supra, at 1350.
We do not read the Treaty in such a fashion. Article 9 does not
purport to specify the only way in which one country may gain
custody of a national of the other country for the purposes of
prosecution. In the absence of an extradition treaty, nations are under
no obligation to surrender those in their country to foreign authorities
for prosecution. Rauscher, 119 US., at 411-412; Factor v.
Laubenheimer, 290 US. 276,287(1933); cf. Valentine v. United
States ex rel. Neidecker, supra, at 8-9. (United States may not
extradite a citizen in the absence of a statute or treaty obligation).
Extradition treaties exist so as to impose mutual obligations to
surrender individuals in certain defined sets of circumstances,
following established procedures. See 1 J. Moore, A Treatise on
Extradition and Interstate Rendition 72 (1891). The Treaty thus
provides a mechanism which would not otherwise exist, requiring,
under certain circumstances, the United States and Mexico to
extradite individuals to the [504 U.S. 655, 665] other country and
establishing the procedures to be followed when the Treaty is
invoked.
The history of negotiation and practice under the Treaty also
fails to show that abductions outside of the Treaty constitute a
violation of the Treaty. As the Solicitor General notes, the Mexican
Government was made aware, as early as 1906, of the Ker doctrine,
and the United States’ position that it applied to forcible abductions
made outside of the terms of the United States-Mexico
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Extradition Treaty. Nonetheless, the current version of the Treaty,
signed in 1978, does not attempt to establish a rule that would in any
way curtail the effect of Ker. Moreover, although language which
would grant individuals exactly the right sought by respondent had
been considered and drafted as early as 1935 by a prominent group of
legal scholars sponsored by the faculty of Harvard Law School, no
such clause appears in the current Treaty.
Thus, the language of the Treaty, in the context of its history,
does not support the proposition that the Treaty prohibits abductions
outside of its terms. The remaining question, therefore, is whether the
Treaty should be interpreted so as to include an implied term
prohibiting prosecution where the defendant’s presence is obtained by
means other than those established by the Treaty. See Valentine, 299
US., at 17 (“Strictly, the question is not whether there had been a
uniform practical construction denying the power, but whether the
power had been so clearly recognized that the grant should be
implied.”)
Respondent contends that the Treaty must be interpreted against
the backdrop of customary international law, and that international
abductions are “so clearly prohibited in international law” that there
was no reason to include such a clause in the Treaty itself. Brief for
Respondent 11. The international censure of international abductions
is further evidenced, according to respondent, by the United Nations
Charter and the Charter of the Organization of American States. Id., at
17. Respondent does not argue that these sources of international law
provide an independent basis for the right respondent asserts not to be
tried in the United States, but rather that they should inform the
interpretation of the Treaty terms. [504 US. 655, 667]
The Court of Appeals deemed it essential, in order for the
individual defendant to assert a right under the Treaty, that the affected
foreign government had registered a protest. Verdugo, 939 F.2d, at
1357 (“In the kidnapping case, there must be a formal protest from the
offended government after the kidnapping”). Respondent agrees that
the right exercised by the individual is derivative of the nation’s right
under the Treaty, since nations are authorized, notwithstanding the
terms of an extradition treaty, to voluntarily render an individual to the
other country on terms completely outside of those provided in the
treaty. The formal protest, therefore, ensures that the “offended” nation
actually objects to the abduction, and has not in some way voluntarily
rendered the individual for prosecution. Thus, the Extradition
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JURISDICTION OF STATES
Treaty only prohibits gaining the defendant’s presence by means other
than those set forth in the Treaty when the nation from which the
defendant was abducted objects.
This argument seems to us inconsistent with the remainder of
respondent’s argument. The Extradition Treaty has the force of law,
and if, as respondent asserts, it is self-executing, it would appear that a
court must enforce it on behalf of an individual regardless of the
offensiveness of the practice of one nation to the other nation. In
Rauscher, the Court noted that Great Britain had taken the position in
other cases that the Webster-Ashburton Treaty included the doctrine of
specialty, but no importance was attached to whether or not Great
Britain had protested the prosecution of Rauscher for the crime of cruel
and unusual punishment, as opposed to murder.
More fundamentally, the difficulty with the support respondent
gamers from international law is that none of it relates to the practice
of nations in relation to extradition treaties. In Rauscher, we implied a
term in the Webster-Ashburton Treaty because of the practice of
nations with regard to extradition treaties. In the instant case,
respondent [504 U.S. 655, 668] would imply terms in the Extradition
Treaty from the practice of nations with regards to international law
more generally. Respondent would have us find that the Treaty acts as
a prohibition against a violation of the general principle of
international law that one government may not “exercise its police
power in the territory of another state.” Brief for Respondent 16. There
are many actions which could be taken by a nation that would violate
this principle, including waging war, but it cannot seriously be
contended that an invasion of the United States by Mexico would
violate the terms of the Extradition Treaty between the two nations.
In sum, to infer from this Treaty and its terms that it prohibits all
means of gaining the presence of an individual [504 U.S. 655, 669]
outside of its terms goes beyond established precedent and practice. In
Rauscher, the implication of a doctrine of specialty into the terms of
the Webster-Ashburton Treaty which, by its terms, required the
presentation of evidence establishing probable cause of the crime of
extradition before extradition was required, was a small step to take.
By contrast, to imply from the terms of this Treaty that it prohibits
obtaining the presence of an individual by means outside of the
procedures the Treaty establishes requires a much larger inferential
leap, with only the most general of international law principles to
support it. The general principles
179
180
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cited by respondent simply fail to persuade us that we should imply in
the United States-Mexico Extradition Treaty a term prohibiting
international abductions.
Respondent and his amici may be correct that respondent’s
abduction was “shocking,” Tr. of Oral Arg. 40, and that it may be in
violation of general international law principles. Mexico has protested
the abduction of respondent through diplomatic notes,
App. 33-38, and the decision of whether respondent should be returned
to Mexico, as a matter outside of the Treaty, is a matter for the
Executive Branch. We conclude, however, that respondent’s abduction
was not in violation of the Extradition Treaty between the United
States and Mexico, and therefore the rule of Ker v. Illinois is fully
applicable to this case. The fact of respondent’s forcible abduction
does not therefore prohibit his trial in a court in the United States for
violations of the criminal laws of the United States.
The judgment of the Court of Appeals is therefore reversed, and
the case is remanded for further proceedings consistent with this
opinion.
So ordered.
The following case illustrates how the due process requirements work in an
extradition case:
SECRETARY OF JUSTICE vs. HON. RALPH C. LANTION G.R. No. 139465.
October 17,2000
EN BANC (footnotes omitted)
The jugular issue is whether or not the private respondent is
entitled to the due process right to notice and hearing during the
evaluation stage of the extradition process.
We now hold that private respondent is bereft of the right to
notice and hearing during the evaluation stage of the extradition
process.
First. RD. No. 1069 which implements the RP-US Extradition
Treaty provides the time when an extraditee shall be furnished a copy
of the petition for extradition as well as its supporting papers,
i. e„ after the filing of the petition for extradition in the extradition
court, viz.:
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JURISDICTION OF STATES
“SECTION 6. Issuance of Summons; Temporary Arrest;
Hearing; Service of Notices. — (1) Immediately upon receipt of
the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the
petition on the day and hour fixed in the order. ... Upon receipt
of the answer, or should the accused after having received the
summons fail to answer within the time fixed, the presiding
judge shall hear the case or set another date for the hearing
thereof.
(2) The order and notice as well as a copy of the warrant
of arrest, if issued, shall be promptly served each upon the
accused and the attorney having charge of the case.”
It is of judicial notice that the summons includes the petition for
extradition which will be answered by the extraditee.
There is no provision in the RP-US Extradition Treaty and in
P.D. No. 1069 which gives an extraditee the right to demand from the
petitioner Secretary of Justice copies of the extradition request from
the US government and its supporting documents and to comment
thereon while the request is still undergoing evaluation. We cannot
write a provision in the treaty giving private respondent that right
where there is none. It is well-settled that a “court cannot alter, amend,
or add to a treaty by the insertion of any clause, small or great, or
dispense with any of its conditions and requirements or take away any
qualification, or integral part of any stipulation, upon any motion of
equity, or general convenience, or substantial justice.”
Second. All treaties, including the RP-US Extradition Treaty,
should be interpreted in light of their intent. Nothing less than the
Vienna Convention on the Law of Treaties to which the Philippines is
a signatory provides that “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 and in light of its object and purpose.” (emphasis
supplied) The preambular paragraphs of P.D. No. 1069 define its
intent, viz.:
“WHEREAS, under the Constitution^] the Philippines
adopts the generally accepted principles of international law as
part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all
nations;
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
WHEREAS, the suppression of crime is the concern not
only of the state where it is committed but also of any other
state to which the criminal may have escaped, because it saps
the foundation of social life and is an outrage upon humanity at
large, and it is in the interest of civilized communities that
crimes should not go unpunished;
WHEREAS, in recognition of this principle the
Philippines recently concluded an extradition treaty with the
Republic of Indonesia, and intends to conclude similar treaties
with other interested countries; ...” (emphasis supplied)
It cannot be gainsaid that today, countries like the Philippines
forge extradition treaties to arrest the dramatic rise of international and
transnational crimes like terrorism and drug trafficking. Extradition
treaties provide the assurance that the punishment of these crimes will
not be frustrated by the frontiers of territorial sovereignty. Implicit in
the treaties should be the unbending commitment that the perpetrators
of these crimes will not be coddled by any signatory state.
It ought to follow that the RP-US Extradition Treaty calls for an
interpretation that will minimize if not prevent the escape of
extraditees from the long arm of the law and expedite their trial. The
submission of the private respondent, that as a probable extraditee
under the RP-US Extradition Treaty he should be furnished a copy of
the US government request for his extradition and its supporting
documents even while they are still under evaluation by petitioner
Secretary of Justice, does not meet this desideratum. The fear of the
petitioner Secretary of Justice that the demanded notice is equivalent
to a notice to flee must be deeply rooted on the experience of the
executive branch of our government. As it comes from the branch of
our government in charge of the faithful execution of our laws, it
deserves the careful consideration of this Court. In addition, it cannot
be gainsaid that private respondent’s demand for advance notice can
delay the summary process of executive evaluation of the extradition
request and its accompanying papers. The foresight of Justice Oliver
Wendell Holmes did not miss this danger. In 1911, he held:
“It is common in extradition cases to attempt to bring to
bear all the factitious niceties of a criminal trial at common law.
But it is a waste of time ... if there is presented, even in
somewhat untechnical form according to our ideas,
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JURISDICTION OF STATES
such reasonable ground to suppose him guilty as to make it
proper that he should be tried, good faith to the demanding
government requires his surrender.” (emphasis supplied)
We erode no right of an extraditee when we do not allow time to
stand still on his prosecution. Justice is best served when done without
delay.
Third. An equally compelling factor to consider is the understanding of the parties themselves to the RP-US Extradition Treaty as
well as the general interpretation of the issue in question by other
countries with similar treaties with the Philippines. The rule is
recognized that while courts have the power to interpret treaties, the
meaning given them by the departments of government particularly
charged with their negotiation and enforcement is accorded great
weight. The reason for the rule is laid down in Santos III v. Northwest
Orient Airlines, et al., where we stressed that a treaty is a joint
executive legislative act which enjoys the presumption that “it was first
carefully studied and determined to be constitutional before it was
adopted and given the force of law in the country.”
Our executive department of government, thru the Department
of Foreign Affairs (DFA) and the Department of Justice (DOJ), has
steadfastly maintained that the RP-US Extradition Treaty and P.D. No.
1069 do not grant the private respondent a right to notice and hearing
during the evaluation stage of an extradition process. This
understanding of the treaty is shared by the US government, the other
party to the treaty. This interpretation by the two governments cannot
be given scant significance. It will be presumptuous for the Court to
assume that both governments did not understand the terms of the
treaty they concluded.
Yet, this is not all. Other countries with similar extradition
treaties with the Philippines have expressed the same interpretation
adopted by the Philippine and US governments. Canadian 11 and
Hongkong authorities, thru appropriate note verbales communicated to
our Department of Foreign Affairs, stated in unequivocal language that
it is not an international practice to afford a potential extraditee with a
copy of the extradition papers during the evaluation stage of the
extradition process. We cannot disregard such a convergence of views
unless it is manifestly erroneous.
Fourth. Private respondent, however, peddles the postulate that
he must be afforded the right to notice and hearing as required by our
Constitution. He buttresses his position by likening an
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
extradition proceeding to a criminal proceeding and the evaluation
stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis.
It is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights. To begin with,
the process of extradition does not involve the determination of the
guilt or innocence of an accused. His guilt or innocence will be
adjudged in the court of the state where he will be extradited. Hence,
as a rule, constitutional rights that are only relevant to determine the
guilt or innocence of an accused cannot be invoked by an extraditee
especially by one whose extradition papers are still undergoing
evaluation. As held by the US Supreme Court in United States v.
Galanis:
“An extradition proceeding is not a criminal prosecution,
and the constitutional safeguards that accompany a criminal trial
in this country do not shield an accused from extradition
pursuant to a valid treaty.”
There are other differences between an extradition proceeding
and a criminal proceeding. An extradition proceeding is summary in
nature while criminal proceedings involve a full-blown trial. In
contradistinction to a criminal proceeding, the rules of evidence in an
extradition proceeding allow admission of evidence under less
stringent standards. In terms of the quantum of evidence to be
satisfied, a criminal case requires proof beyond reasonable doubt for
conviction while a fugitive may be ordered extradited “upon showing
of the existence of a prima facie case.” Finally, unlike in a criminal
case where judgment becomes executory upon being rendered final, in
an extradition proceeding, our courts may adjudge an individual
extraditable but the President has the final discretion to extradite him.
The United States adheres to a similar practice whereby the Secretary
of State exercises wide discretion in balancing the equities of the case
and the demands of the nation’s foreign relations before making the
ultimate decision to extradite.
As an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a
preliminary investigation, the due process safeguards in the latter do
not necessarily apply to the former. This we hold for the procedural
due process required by a given set of circumstances “must begin with
a determination of the precise nature of the government function
involved as well as the private interest that has been affected by
governmental action.” The concept of due process is
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JURISDICTION OF STATES
flexible for “not all situations calling for procedural safeguards call for
the same kind of procedure.”
Fifth. Private respondent would also impress upon the Court the
urgency of his right to notice and hearing considering the alleged threat
to his liberty “which may be more priceless than life.” The supposed
threat to private respondent’s liberty is perceived to come from several
provisions of the RP-US Extradition Treaty and P.D. No. 1069 which
allow provisional arrest and temporary detention.
We first deal with provisional arrest. The RP-US Extradition
Treaty provides as follows:
“PROVISIONAL ARREST
1.
In case of urgency, a Contracting Party may request
the provisional arrest of the person sought pending presentation
of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly
between the Philippine Department of Justice and the United
States Department of Justice.
2.
The application for provisional arrest shall contain:
a)
a description of the person sought;
b)
the location of the person sought, if known;
c)
a brief statement of the facts of the case,
including, if possible, the time and location of the offense;
d)
a description of the laws violated;
e)
a statement of the existence of a warrant of
arrest or finding of guilt or judgment of conviction against
the person sought; and
f)
a statement that a request for extradition for
the person sought will follow.
3.
The Requesting State shall be notified without
delay of the disposition of its application and the reasons for any
denial.
4.
A person who is provisionally arrested may be
discharged from custody upon the expiration of sixty (60)
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
days from the date of arrest pursuant to this Treaty if the
executive authority of the Requested State has not received the
formal request for extradition and the supporting documents
required in Article 7.” (emphasis supplied)
In relation to the above, Section 20 of RD. No. 1069 provides:
“SECTION 20. Provisional Arrest. — (a) In case of
urgency, the requesting state may, pursuant to the relevant treaty
or convention and while the same remains in force, request for
the provisional arrest of the accused, pending receipt of the
request for extradition made in accordance with Section 4 of this
Decree.
(b) A request for provisional arrest shall be sent to the
Director of the National Bureau of Investigation, Manila, either
through the diplomatic channels or direct by post or telegraph.
(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of
the request immediately secure a warrant for the provisional
arrest of the accused from the presiding judge of the Court of
First Instance of the province or city having jurisdiction of the
place, who shall issue the warrant for the provisional arrest of
the accused. The Director of the National Bureau of
Investigation through the Secretary of Foreign Affairs shall
inform the requesting state of the result of its request.
(d) If within a period of 20 days after the provisional
arrest the Secretary of Foreign Affairs has not received the
request for extradition and the documents mentioned in Section
4 of this Decree, the accused shall be released from custody.”
(emphasis supplied)
Both the RP-US Extradition Treaty and P.D. No. 1069 clearly
provide that private respondent may be provisionally arrested only
pending receipt of the request for extradition. Our DFA has long
received the extradition request from the United States and has turned
it over to the DOJ. It is undisputed that until today, the United States
has not requested for private respondent’s provisional arrest.
Therefore, the threat to private respondent’s liberty has passed. It is
more imagined than real.
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Nor can the threat to private respondent’s liberty come from
Section 6 of P.D. No. 1069, which provides:
“SECTION 6. Issuance of Summons; Temporary Arrest;
Hearing, Service of Notices. — (1) Immediately upon receipt of
the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the
petition on the day and hour fixed in the order. [H]e may issue a
warrant for the immediate arrest of the accused which may be
served anywhere within the Philippines if it appears to the
presiding judge that the immediate arrest and temporary
detention of the accused will best serve the ends of justice.
(2) The order and notice as well as a copy of the warrant
of arrest, if issued, shall be promptly served each upon the
accused and the attorney having charge of the case.” (emphasis
supplied)
It is evident from the above provision that a warrant of arrest for
the temporary detention of the accused pending the extradition hearing
may only be issued by the presiding judge of the extradition court
upon filing of the petition for extradition. As the extradition process is
still in the evaluation stage of pertinent documents and there is no
certainty that a petition for extradition will be filed in the appropriate
extradition court, the threat to private respondent’s liberty is merely
hypothetical.
Sixth. To be sure, private respondent’s plea for due process
deserves serious consideration involving as it does his primordial right
to liberty. His plea to due process, however, collides with important
state interests which cannot also be ignored for they serve the interest
of the greater majority. The clash of rights demands a delicate
balancing of interests approach which is a “fundamental postulate of
constitutional law.” The approach requires that we “take conscious and
detailed consideration of the interplay of interests observable in a
given situation or type of situation.” These interests usually consist in
the exercise by an individual of his basic freedoms on the one hand,
and the government’s promotion of fundamental public interest or
policy objectives on the other.
In the case at bar, on one end of the balancing pole is the private
respondent’s claim to due process predicated on Section
1, Article III of the Constitution, which provides that “No person shall
be deprived of life, liberty, or property without due process of law ...”
Without a bubble of doubt, procedural due process of law
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
lies at the foundation of a civilized society which accords paramount
importance to justice and fairness. It has to be accorded the weight it
deserves.
This brings us to the other end of the balancing pole. Petitioner
avers that the Court should give more weight to our national
commitment under the RP-US Extradition Treaty to expedite the
extradition to the United States of persons charged with violation of
some of its laws. Petitioner also emphasizes the need to defer to the
judgment of the Executive on matters relating to foreign affairs in
order not to weaken if not violate the principle of separation of powers.
Considering that in the case at bar, the extradition proceeding is
only at its evaluation stage, the nature of the right being claimed by the
private respondent is nebulous and the degree of prejudice he will
allegedly suffer is weak, we accord greater weight to the interests
espoused by the government thru the petitioner Secretary of Justice. In
Angara v. Electoral Commission, we held that the “Constitution has
blocked out with deft strokes and in bold lines, allotment of power to
the executive, the legislative and the judicial departments of the
government.” Under our constitutional scheme, executive power is
vested in the President of the Philippines. Executive power includes,
among others, the power to contract or guarantee foreign loans and the
power to enter into treaties or international agreements. The task of
safeguarding that these treaties are duly honored devolves upon the
executive department which has the competence and authority to so act
in the international arena. It is traditionally held that the President has
power and even supremacy over the country’s foreign relations. The
executive department is aptly accorded deference on matters of foreign
relations considering the President’s most comprehensive and most
confidential information about the international scene of which he is
regularly briefed by our diplomatic and consular officials. His access
to ultra-sensitive military intelligence data is also unlimited. The
deference we give to the executive department is dictated by the
principle of separation of powers. This principle is one of the
cornerstones of our democratic government. It cannot be eroded
without endangering our government.
The Philippines also has a national interest to help in
suppressing crimes and one way to do it is to facilitate the extradition
of persons covered by treaties duly entered by our government. More
and more, crimes are becoming the concern of one world. Laws
involving crimes and crime prevention are
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JURISDICTION OF STATES
undergoing universalization. One manifest purpose of this trend
towards globalization is to deny easy refuge to a criminal whose
activities threaten the peace and progress of civilized countries. It is to
the great interest of the Philippines to be part of this irreversible
movement in light of its vulnerability to crimes, especially
transnational crimes.
In tilting the balance in favor of the interests of the State, the
Court stresses that it is not ruling that the private respondent has no
right to due process at all throughout the length and breadth of the
extrajudicial proceedings. Procedural due process requires a
determination of what process is due, when it is due, and the degree of
what is due. Stated otherwise, a prior determination should be made as
to whether procedural protections are at all due and when they are due,
which in turn depends on the extent to which an individual will be
“condemned to suffer grievous loss.” We have explained why an
extraditee has no right to notice and hearing during the evaluation
stage of the extradition process. As aforesaid, P.D. No. 1069 which
implements the RP-US Extradition Treaty affords an extraditee
sufficient opportunity to meet the evidence against him once the
petition is filed in court. The time for the extraditee to know the basis
of the request for his extradition is merely moved to the filing in court
of the formal petition for extradition. The extraditee’s right to know is
momentarily withheld during the evaluation stage of the extradition
process to accommodate the more compelling interest of the State to
prevent escape of potential extraditees which can be precipitated by
premature information of the basis of the request for his extradition.
No less compelling at that stage of the extradition proceedings is the
need to be more deferential to the judgment of a co-equal branch of the
government, the Executive, which has been endowed by our
Constitution with greater power over matters involving our foreign
relations. Needless to state, this balance of interests is not a static but a
moving balance which can be adjusted as the extradition process
moves from the administrative stage to the judicial stage and to the
execution stage depending on factors that will come into play. In sum,
we rule that the temporary hold on private respondent’s privilege of
notice and hearing is a soft restraint on his right to due process which
will not deprive him of fundamental fairness should he decide to resist
the request for his extradition to the United States. There is no denial
of due process as long as fundamental fairness is assured a party.
We end where we began. A myopic interpretation of the due
process clause would not suffice to resolve the conflicting rights in
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the case at bar. With the global village shrinking at a rapid pace,
propelled as it is by technological leaps in transportation and communication, we need to push further back our horizons and work with
the rest of the civilized nations and move closer to the universal goals
of “peace, equality, justice, freedom, cooperation and amity with all
nations.” In the end, it is the individual who will reap the harvest of
peace and prosperity from these efforts.
WHEREFORE, the Urgent Motion for Reconsideration is
GRANTED. The Decision in the case at bar promulgated on January
18, 2000 is REVERSED. The assailed Order issued by the public
respondent judge on August 9, 1999 is SET ASIDE.
The temporary restraining order issued by this Court on August 17,
1999 is made PERMANENT. The Regional Trial Court of Manila,
Branch 25 is enjoined from conducting further proceedings in Civil
Case No. 99-94684.
Bail in extradition cases
If after his arrest and if the trial court finds that an extraditee is not a flight
risk, the court may grant him bail. (In this case the grant of bail presupposed that a
co-petitioner, the wife, had already presented evidence to prove her right to be on
bail, that she was no flight risk, and the trial court had already exercised its sound
discretion and had already determined that under the Constitution and laws in force,
co- petitioner was entitled to provisional release.) The Court emphasized that bail
may be granted to a possible extraditee only upon a clear and convincing showing
(1) that he will not be a flight risk or a danger to the community, and (2) that there
exist special, humanitarian and compelling circumstances.6
In a later case, the Court said that it could not ignore the following trends in
international law: (1) the growing importance of the individual person in public
international law who, in the 20th century, has gradually attained global
recognition; (2) the higher value now being given to human rights in the
international sphere; (3) the corresponding duty of countries to observe these
universal human rights in fulfilling their treaty obligations; and (4) the duty of the
Court to balance the rights of the individual under our fundamental law, on one
hand, and the law on extradition, on the other. It added, “If bail can be granted in
deportation
6
Rodriguez v. Judge, G.R. No. 157977, February 27,2006.
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191
cases, we see no justification why it should not also be allowed in extradition cases.
After all, both are administrative proceedings where the innocence or guilt of the
person detained is not in issue.”7
The decision departs from the earlier case of Mark Jimenez (US v. Judge
Puruganan, September 24, 2002) which said that bail is not available in extradition
cases.
’Gov’t of Hongkong v. Olalia, GR 153675, April 19,2007.
Chapter 10 IMMUNITY FROM JURISDICTION
Immunity from jurisdiction.
The general rule is that the jurisdiction of a state within its territory is
complete and absolute. However, there are two categories of exceptions to this rule.
The first is sovereign immunity and the second is the immunity of the
representative of states or diplomatic and consular immunities. Sovereign immunity
covers both a head of state and the state itself.
Immunity of head of state.
Immunity from jurisdiction is enjoyed by both the head of state and by the
state itself. The example many authors give of the immunity of a head of state is the
case of Mighell v. Sultan ofJohore.' The Sultan of Johore was sued for breach of
promise to marry in a British court. The subject of the suit therefore was a private
matter, not a state matter. Upon verification of his being a sitting foreign sovereign,
the case was dismissed. The immunity that is recognized here is absolute for a
sitting head of state.
More recent is the Pinochet Case which involved one who no longer was a
head of state but whose immunity for official or governmental acts was recognized.
The Pinochet Case: Background
General Augusto Pinochet led a 1973 military coup that overthrew
democratically-elected Chilean President Salvador Allende. According to a national
truth and reconciliation commission, at least 3,196 people
'1 QB 148(1894).
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193
were killed or forcibly disappeared during Pinochet’s subsequent 17- year
dictatorship. Thousands more were tortured or exiled.
On October 16, 1998, while seeking medical help in London, British
authorities detained Augusto Pinochet on an arrest warrant issued by Spanish
Magistrate Baltasar Garzon. Garzon who had charged Pinochet with genocide,
terrorism, and torture committed during the Chilean dictatorship and was seeking
his extradition.
In November 1998, a panel of British law lords ruled that Pinochet did not
enjoy immunity from prosecution as a former head of state and could be extradited
to Spain. This decision, based largely on customary international law, was set aside,
however, when one of the judges who heard the appeal was found to have ties to
Amnesty International. A larger panel of law lords heard the appeal again in March
1999, and in a 6-1 decision, reaffirmed that Pinochet could be extradited.
REGINA v. BARTLE AND THE COMMISSIONER OF POLICE
ON 24 March 1999 House of Lords
LORD BROWNE-WILKINSON
. . . [i]n my judgment, Senator Pinochet as former head of state
enjoys immunity ratione materiae in relation to acts done by him as
head of state as part of his official functions as head of state.
The question then which has to be answered is whether the
alleged organisation of state torture by Senator Pinochet (if proved)
would constitute an act committed by Senator Pinochet as part of his
official functions as head of state....
Can it be said that the commission of a crime which is an
international crime against humanity and jus cogens is an act done in
an official capacity on behalf of the state? I believe there to be strong
ground for saying that the implementation of torture as defined by the
Torture Convention cannot be a state function. This is the view taken
by Sir Arthur Watts (supra) who said (at p. 82):
“The idea that individuals who commit international
crimes are internationally accountable for them has now become
an accepted part of international law. Problems in this area —
such as the non-existence of any standing
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international tribunal to have jurisdiction over such crimes, and
the lack of agreement as to what acts are internationally criminal
for this purpose— have not affected the general acceptance of
the principle of individual responsibility for international
criminal conduct.”
Later, at p. 84, he said:
“It can no longer be doubted that as a matter of general
customary international law a head of state will personally be
liable to be called to account if there is sufficient evidence that
he authorized or perpetrated such serious international crimes.”
Finally, and to my mind decisively, if the implementation of a torture regime
is a public function giving rise to immunity ratione materiae, this produces bizarre
results. Immunity ratione materiae applies not only to ex-heads of state and exambassadors but to all state officials who have been involved in carrying out the
functions of the state. Such immunity is necessary in order to prevent state
immunity being circumvented by prosecuting or suing the official who, for
example, actually carried out the torture when a claim against the head of state
would be precluded by the doctrine of immunity. If that applied to the present case,
and if the implementation of the torture regime is to be treated as official business
sufficient to found an immunity for the former head of state, it must also be official
business sufficient to justify immunity for his inferiors who actually did the
torturing. Under the [Torture] Convention the international crime of torture can
only be committed by an official or someone in an official capacity. They would all
be entitled to immunity.... Therefore, the whole elaborate structure of universal
jurisdiction over torture committed by officials is rendered abortive and one of the
main objectives of the Torture Convention — to provide a system under which
there is no safe haven for torturers — will have been frustrated. In my judgment, all
these factors together demonstrate that the notion of continued immunity for exheads of state is inconsistent with the provisions of the Torture Convention.
For these reasons in my judgment if, as alleged, Senator Pinochet organized
and authorized torture after 8 December 1988, he was not acting in any capacity
which gives rise to immunity ratione materiae because such actions were contrary
to international law ...
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[The Chilean government and other extradition opponents then
urged the British government to send the former dictator back to Chile
on medical grounds. Despite the protests of legal and medical experts
from several countries, British Home Secretary Jack Straw released
Pinochet on March 2,2000, ostensibly on health grounds.]
State immunity.
The principle that the state may not be sued without its consent found in the
Philippine Constitution is both municipal law and also international law applicable
to foreign states. This is based on the principle of equality of states: par in parent
non habet imperium.
An early case, The Schooner Exchange v. MacFaddon1 is usually cited as
authority for saying that states enjoy absolute immunity. Chief Justice Marshall
noted that “the nation within its own territory is necessarily exclusive and absolute.
It is susceptible of no limitation not imposed by itself.” However, he immediately
added that absolute territorial jurisdiction “would not seem to contemplate foreign
sovereigns nor their sovereign rights as its objects. One sovereign being in no
respect amenable to another; and being bound by obligations of the highest
character not to degrade the dignity of his nation, by placing himself or its
sovereign rights within the jurisdiction of another, can be supposed to enter a
foreign territory ... in the confidence that the immunities belonging to his
independent sovereign station, though not expressly stipulated, are reserved by
implication, and will be extended to him.”
The immunity of the sovereign head is seen as also communicated to the
sovereign state: “This perfect equality and absolute independence of sovereigns,
and this common interest impelling them to mutual intercourse, and an interchange
of good offices with each other, have given rise to a class of cases in which every
sovereign is understood to waive the exercise of a part of that complete exclusive
territorial jurisdiction, which has been stated to be the attribute of every nation.”
With the gradual expansion of state involvement in commerce, the principle
evolved over the years. Immunity came to be reserved only for acts jure imperii
(governmental acts) but not for acts jure gestionis
2
11 U.S. 116 [Cranch],
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(trading and commercial acts). Dralle v. Republic of Czechoslovakia,3 after a
survey of various jurisdictions concluded:
The Supreme Court therefore reaches the conclusion that it can
no longer be said that by international law so-called acta gestionis are
exempt from municipal jurisdiction. This subjection of the acta
gestionis to the jurisdiction of States has its basis in the development of
the commercial activity of States.
The classic doctrine of immunity arose at a time when all their political
activities, either by the purchase of commodities for their diplomatic
representatives abroad, or by the purchase of war material for war
purposes, etc. Therefore, there was no justification for any distinction
between private transactions and acts of sovereignty. Today the
position is entirely different;
States engage in commercial activities and, as the present case shows,
enter into competition with their own nationals and with foreigners.
Accordingly, the classic doctrine of immunity has lost its meaning and,
ratione cessante, can no longer be recognized as a rule of international
law.
This rule is also followed in Philippine jurisdiction as shown especially by
the numerous cases involving U.S. military bases authorities. United States of
America v. Hon. V.M. Ruiz* categorically said:
The traditional rule of State immunity exempts a State from
being sued in the courts of another State without its consent or waiver.
This rule is a necessary consequence of the principles of independence
and equality of States. However, the rules of International Law are not
petrified; they are constantly developing and evolving. And because
the activities of states have multiplied, it has been necessary to
distinguish them — between sovereign and governmental acts (jure
imperii) and private, commercial and proprietary acts (jure gestionis).
The result is that State immunity now extends only to acts jure imperii.
The restrictive application of State immunity is now the rule in the
United States, the United Kingdom and other states in western Europe.
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of the
foreign sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given
’
S
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197
its consent to be sued only when it enters into business contracts.
It does not apply where the contract relates to the exercise of its
sovereign functions. In this case, the projects [repairs of base facilities]
are an integral part of the naval base which is devoted to the defense of
both the United States and the Philippines, indisputably a function of
the government of the highest order; they are not utilized for nor
dedicated to commercial or business purposes.
In United States v. Hon. Luis Reyes,5 the claim of immunity was rejected
when it was shown that the acts of the American official were committed not only
outside the scope of her authority but also contrary to law:
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law and injurious to
the rights of plaintiff. ... ‘Inasmuch as the State authorizes only legal
acts by its officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such
acts, for the protection of his rights, is not a suit against the State
within the rule of immunity of the State from suit.
In the same tenor, it has been said that an action at law or suit in equity
against a State officer or the director of a State department on the
ground that, while claiming to act for the State, he violates or invades
the personal and property rights or the plaintiff, under an
unconstitutional act or under an assumption of authority which he does
not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent.’
The rationale for this ruling is that the doctrine of state immunity
cannot be used as an instrument for perpetrating an injustice.
In the Holy See v. Eriberto Rosario, Jr.,6 where it was claimed that the Holy
See had waived its sovereign immunity by entering into a contract for the sale of a
piece of land, the Court said:
In the absence of legislation defining what activities and
transactions shall be considered “commercial” and as constituting acts
jure gestionis, we have to come out with our own guidelines, tentative
they may be.
Certainly, the mere entering into a contract by a foreign state
with a private party cannot be the ultimate test. Such an act can
5
G.R. No. 79253, March 1,1993.
6
G.R. No. 101949, December
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only be the start of the inquiry. The logical question is whether the
foreign state is engaged in the activity in the regular course of
business. If the foreign state is not engaged regularly in a business or
trade, the particular act or transaction must then be tested by its nature.
If the act is in pursuit of a sovereign activity, or an incident thereof,
then it is an act jure imperii, especially when it is not undertaken for
gain or profit.
In the case at bench, if petitioner has bought and sold lands in
the ordinary course of a real estate business, surely the said transaction
can be categorized as an act jure gestionis. However, petitioner has
denied that the acquisition and subsequent disposal of Lot 5-A were
made for profit but claimed that it acquired said property for the site of
its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.
The Court also indicated how a state claiming sovereign immunity should
proceed:
In Public International Law, when a state or international
agency wishes to plead sovereign or diplomatic immunity in a foreign
court, it requests the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled to immunity.
In the Philippines, the practice is for the foreign government or
the international organization to first secure an executive endorsement
of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts varies.
By way of consolation, however, the Court added: “Private respondent is not
left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts
of a foreign sovereign can ask his own government to espouse his cause through
diplomatic channels.”
REPUBLIC OF INDONESIA V. VINZON G S.. No. 154705, June 26,2003
AZCUNA, J.:
Petitioner, Republic of Indonesia, represented by its Counsellor,
Siti Partinah, entered into a Maintenance Agreement in August 1995
with respondent James Vinzon, sole proprietor of
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Vinzon Trade and Services. The Maintenance Agreement stated that
respondent shall, for a consideration, maintain specified equipment at
the Embassy Main Building, Embassy Annex Building and the Wisma
Duta, the official residence of petitioner Ambassador Soeratmin. The
equipment covered by the Maintenance Agreement are air
conditioning units, generator sets, electrical facilities, water heaters,
and water motor pumps. It is likewise stated therein that the agreement
shall be effective for a period of four years and will renew itself
automatically unless cancelled by either party by giving thirty days
prior written notice from the date of expiry.
Petitioners claim that sometime prior to the date of expiration of
the said agreement, or before August 1999, they informed respondent
that the renewal of the agreement shall be at the discretion of the
incoming Chief of Administration, Minister Counsellor Azhari Kasim,
who was expected to arrive in February 2000. When Minister
Counsellor Kasim assumed the position of Chief of Administration in
March 2000, he allegedly found respondent’s work and services
unsatisfactory and not in compliance with the standards set in the
Maintenance Agreement. Hence, the Indonesian Embassy terminated
the agreement in a letter dated August 31, 2000. Petitioners claim,
moreover, that they had earlier verbally informed respondent of their
decision to terminate the agreement.
On the other hand, respondent claims that the aforesaid
termination was arbitrary and unlawful. Respondent cites various
circumstances which purportedly negated petitioners’ alleged
dissatisfaction over respondent’s services: (a) in July 2000, Minister
Counsellor Kasim still requested respondent to assign to the embassy
an additional full-time worker to assist one of his other workers; (b) in
August 2000, Minister Counsellor Kasim asked respondent to donate a
prize, which the latter did, on the occasion of the Indonesian
Independence Day golf tournament; and (c) in a letter dated August 22,
2000, petitioner Ambassador Soeratmin thanked respondent for
sponsoring a prize and expressed his hope that the cordial relations
happily existing between them will continue to prosper and be
strengthened in the coming years.
Hence, on December 15,2000, respondent filed a complaint
against petitioners docketed as Civil Case No. 18203 in the Regional
Trial Court (RTC) of Makati, Branch 145. On February 20, 2001,
petitioners filed a Motion to Dismiss, alleging that the Republic of
Indonesia, as a foreign sovereign State, has sovereign immunity from
suit and cannot be sued as a party-defendant in the Philippines. The
said motion further alleged that Ambassador
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Soeratmin and Minister Counsellor Kasim are diplomatic agents as
defined under the Vienna Convention on Diplomatic Relations and
therefore enjoy diplomatic immunity. In turn, respondent filed on
March 20, 2001, an Opposition to the said motion alleging that the
Republic of Indonesia has expressly waived its immunity from suit.
He based this claim upon the following provision in the Maintenance
Agreement:
“Any legal action arising out of this Maintenance
Agreement shall be settled according to the laws of the Philippines and by the proper court of Makati City, Philippines.”
Respondent’s Opposition likewise alleged that Ambassador
Soeratmin and Minister Counsellor Kasim can be sued and held liable
in their private capacities for tortious acts done with malice and bad
faith.
On May 17, 2001, the trial court denied herein petitioners’
Motion to Dismiss. It likewise denied the Motion for Reconsideration
subsequently filed.
The trial court’s denial of the Motion to Dismiss was brought up
to the Court of Appeals by herein petitioners in a petition for
certiorari and prohibition. Said petition, docketed as CA-G.R. SP No.
66894, alleged that the trial court gravely abused its discretion in
ruling that the Republic of Indonesia gave its consent to be sued and
voluntarily submitted itself to the laws and jurisdiction of Philippine
courts and that petitioners Ambassador Soeratmin and Minister
Counsellor Kasim waived their immunity from suit.
On May 30,2002, the Court of Appeals rendered its assailed
decision denying the petition for lack of merit. On August 16, 2002, it
denied herein petitioners’ motion for reconsideration.
Hence, this petition.
In the case at bar, petitioners raise the sole issue of whether or
not the Court of Appeals erred in sustaining the trial court’s decision
that petitioners have waived their immunity from suit by using as its
basis the above-mentioned provision in the Maintenance Agreement.
The petition is impressed with merit.
International law is founded largely upon the principles of
reciprocity, comity, independence, and equality of States which were
adopted as part of the law of our land under Article II, Section 2 of the
1987 Constitution. The rule that a State may not be sued
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without its consent is a necessary consequence of the principles of
independence and equality of States. [United States of America, et al. v.
Ruiz, 136 SCRA 487 (1987).] As enunciated in Sanders v. Veridiano
II, 162 SCRA 88, 96 (1988), the practical justification for the doctrine
of sovereign immunity is that there can be no legal right against the
authority that makes the law on which the right depends. In the case of
foreign States, the rule is derived from the principle of the sovereign
equality of States, as expressed in the maxim par in parem non habet
imperium. All states are sovereign equals and cannot assert jurisdiction
over one another. A contrary attitude would “unduly vex the peace of
nations.”
The rules of International Law, however, are neither unyielding
nor impervious to change. The increasing need of sovereign States to
enter into purely commercial activities remotely connected with the
discharge of their governmental functions brought about a new
concept of sovereign immunity. This concept, the restrictive theory,
holds that the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii, but not with regard to private
acts or acts jure gestionis. [The Holy See v. Rosario, et al., 238 SCRA
524 (1994)].
In United States v. Ruiz, for instance, we held that the conduct of
public bidding for the repair of a wharf at a United States Naval
Station is an act jure imperii. On the other hand, we considered as an
act jure gestionis the hiring of a cook in the recreation center catering
to American servicemen and the general public at the John Hay Air
Station in Baguio City, United States v. Rodrigo, 182 SCRA 644
(1990), as well as the bidding for the operation of barber shops in
Clark Air Base in Angeles City.
Apropos the present case, the mere entering into a contract by a
foreign State with a private party cannot be construed as the ultimate
test of whether or not it is an act jure imperii or jure gestionis. Such act
is only the start of the inquiry. Is the foreign State engaged in the
regular conduct of a business? If the foreign State is not engaged
regularly in a business or commercial activity, and in this case it has
not been shown to be so engaged, the particular act or transaction must
then be tested by its nature. If the act is in pursuit of a sovereign
activity, or an incident thereof, then it is an act jure imperii.
Hence, the existence alone, of a paragraph in a contract stating
that any legal action arising out of the agreement shall be settled
according to the laws of the Philippines and by a specified court of
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the Philippines is not necessarily a waiver of sovereign immunity from
suit. The aforesaid provision contains language not necessarily
inconsistent with sovereign immunity. On the other hand, such
provision may also be meant to apply where the sovereign party elects
to sue in the local courts, or otherwise waives its immunity by any
subsequent act. The applicability of Philippine laws must be deemed to
include Philippine laws in its totality, including the principle
recognizing sovereign immunity. Hence, the proper court may have no
proper action, by way of settling the case, except to dismiss it.
Submission by a foreign state to local jurisdiction must be clear
and unequivocal. It must be given explicitly or by necessary
implication. We find no such waiver in this case.
Respondent concedes that the establishment of a diplomatic
mission is a sovereign function. On the other hand, he argues that the
actual physical maintenance of the premises of the diplomatic mission,
such as the upkeep of its furnishings and equipment, is no longer a
sovereign function of the State.
We disagree. There is no dispute that the establishment of a
diplomatic mission is an act jure imperii. A sovereign State does not
merely establish a diplomatic mission and leave it at that; the
establishment of a diplomatic mission encompasses its maintenance
and upkeep. Hence, the State may enter into contracts with private
entities to maintain the premises, furnishings and equipment of the
embassy and the living quarters of its agents and officials. It is
therefore clear that petitioner Republic of Indonesia was acting in
pursuit of a sovereign activity when it entered into a contract with
respondent for the upkeep or maintenance of the air conditioning units,
generator sets, electrical facilities, water heaters, and water motor
pumps of the Indonesian Embassy and the official residence of the
Indonesian ambassador.
The Solicitor General, in his Comment, submits the view that,
“the Maintenance Agreement was entered into by the Republic of
Indonesia in the discharge of its governmental functions. In such a
case, it cannot be deemed to have waived its immunity from suit.” As
to the paragraph in the agreement relied upon by respondent, the
Solicitor General states that it “was not a waiver of their immunity
from suit but a mere stipulation that in the event they do waive their
immunity, Philippine laws shall govern the resolution of any legal
action arising out of the agreement and the proper court in Makati City
shall be the agreed venue thereof.
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On the matter of whether or not petitioners Ambassador
Soeratmin and Minister Counsellor Kasim may be sued herein in their
private capacities, Article 31 of the Vienna Convention on Diplomatic
Relations provides:
xxx xxx xxx
1.
A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case
of:
(a) a real action relating to private immovable property
situated in the territory of the receiving State, unless he holds it
on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the
diplomatic agent is involved as executor, administrator, heir or
legatee as a private person and not on behalf of the sending
State;
(c) an action relating to any professional or
commercial activity exercised by the diplomatic agent in the
receiving State outside his official functions.
xxx
xxx
xxx
The act of petitioners Ambassador Soeratmin and Minister
Counsellor Kasim in terminating the Maintenance Agreement is not
covered by the exceptions provided in the abovementioned provision.
The Solicitor General believes that said act may fall under
subparagraph (c) thereof, but said provision clearly applies only to a
situation where the diplomatic agent engages in any professional or
commercial activity outside official functions, which is not the case
herein.
WHEREFORE, the petition is hereby GRANTED.
Diplomatic and consular immunities.
The law governing diplomatic relations dates back to earliest intercourse
between nations. Much of it is customary law. Official representatives of a state are
given immunities and privileges when they are within the territory of another state.
The immunities and privileges they enjoy are personal in the sense that they benefit
the person. But the purpose of the immunities given them is functional, that is, to
enable
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them to perform their functions properly. On the part of the receiving state there lie
certain obligations to protect the representative and his property and office. The law
on this subject is very important because of the reliance states place on their
representatives in dealing with other states.
Diplomatic immunities.
Diplomats are concerned with the political relations of states. The
codification of the law on the subject may be found in the Vienna Convention on
Diplomatic Relations (1961). The diplomatic representatives who can enjoy
immunities in varying degrees are enumerated in Article I;
Article I
For the purpose of the present Convention, the following
expressions shall have the meanings hereunder assigned to them:
(a)
the "head of the mission ” is the person charged by the
sending State with the duty of acting in that capacity;
(b) the “members of the mission” are the head of the mission
and the members of the staff of the mission;
(c)
the “members of the staff of the mission ” are the members of the diplomatic staff, of the administrative and technical staff
and of the service staff of the mission;
(d) the “members of the diplomatic staff" are the members of
the staff of the mission having diplomatic rank;
(e)
a “diplomatic agent" is the head of the mission or a
member of the diplomatic staff of the mission;
(f)
the “members of the administrative and technical staff"
are the members of the staff of the mission employed in the
administrative and technical service of the mission;
(g) the “members of the service staff" are the members of the
staff of the mission in the domestic service of the mission;
(h) a “private servant” is a person who is in the domestic
service of a member of the mission and who is not an employee of the
sending State;
(i)
the “premises of the mission" are the buildings or parts of
buildings and the land ancillary thereto, irrespective of ownership,
used for the purposes of the mission including the residence of the
head of the mission.
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205
The functions of the diplomatic mission are enumerated in Article 3:
(a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending State
and of its nationals, within the limits permitted by international law; (c)
negotiating with the Government of the receiving State;
(d) ascertaining by all lawful means conditions and developments in
the receiving State, and reporting thereon to the Government of the
sending State; (e) promoting friendly relations between the sending
State and the receiving State, and developing their economic, cultural
and scientific relations.
Diplomatic relations between states are purely by mutual consent. Before the
head of mission is sent to the receiving state, an agreement must first be obtained.
The receiving state is under no obligation to give reasons for refusing an agreement.
(Art. 4) Moreover, the “receiving State may at any time, and without having to
explain its decision, notify the sending State that the head of the mission or any
member of the diplomatic staff of the mission is persona non grata or that any
other member of the staff of the mission is not acceptable. In any such case, the
sending State shall, as appropriate, either recall the person concerned or terminate
his functions with the mission. A person may be declared non grata or not
acceptable before arriving in the territory of the receiving State.” (Art. 9).
The following are some of the rights and privileges of the diplomatic
mission:
Article 22
1.
The premises of the mission shall be inviolable. The
agents of the receiving State may not enter them, except with the
consent of the head of the mission.
2.
The receiving State is under a special duty to take all
appropriate steps to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity.
3.
The premises of the mission, their furnishings and other
property thereon and the means of transport of the mission shall be
immune from search, requisition, attachment or execution.
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Article 23
1. The sending State and the head of the mission shall be
exempt from all national, regional or municipal dues and taxes in
respect of the premises of the mission, whether owned or leased, other
than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in this Article
shall not apply to such dues and taxes payable under the law of the
receiving State by persons contracting with the sending State or the
head of the mission.
Article 24
The archives and documents of the mission shall be inviolable
at any time and wherever they may be.
Article 27
1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In
communicating with the Government and the other missions and
consulates of the sending State, wherever situated, the mission may
employ all appropriate means, including diplomatic couriers and
messages in code or cipher. However, the mission may install and use
a wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the mission shall be
inviolable. Official correspondence means all correspondence relating
to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear
visible external marks of their character and may contain only diplomatic documents or articles intended for official use.
5. The diplomatic courier, who shall be provided with an
official document indicating his status and the number of packages
constituting the diplomatic bag, shall be protected by the receiving
State in the performance of his functions. He shall enjoy personal
inviolability and shall not be liable to any form of arrest or detention.
6. The sending State or the mission may designate diplomatic
couriers ad hoc. In such cases the provisions of paragraph 5 of this
Article shall also apply, except that the immunities therein
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mentioned shall cease to apply when such a courier has delivered to
the consignee the diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of a
commercial aircraft scheduled to land at an authorized port of entry.
He shall be provided with an official document indicating the number
of packages constituting the bag but he shall not be considered to be a
diplomatic courier. The mission may send one of its members to take
possession of the diplomatic bag directly and freely from the captain of
the aircraft.
Article 29
The person of a diplomatic agent shall be inviolable. He shall
not be liable to any form of arrest or detention. The receiving State
shall treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.
Article 30
1. The private residence of a diplomatic agent shall enjoy the
same inviolability and protection as the premises of the mission.
2. His papers, correspondence and, except as provided in
paragraph 3 of Article 31, his property, shall likewise enjoy inviolability.
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving State. He shall also enjoy immunity from
its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property
situated in the territory of the receiving State, unless he holds it
on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic
agent is involved as executor, administrator, heir or legatee as a
private person and not on behalf of the sending State; (c) an
action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside
his official functions.
2.
witness.
A diplomatic agent is not obliged to give evidence as a
3. No measures of execution may be taken in respect of a
diplomatic agent except in the cases coming under sub-paragraphs
207
208
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
(a), (b) and (c) of paragraph 1 of this Article, and provided that the
measures concerned can be taken without infringing the inviolability
of his person or of his residence.
4.
The immunity of a diplomatic agent from the jurisdiction
of the receiving State does not exempt him from the jurisdiction of the
sending State.
Article 32
1.
The immunity from jurisdiction of diplomatic agents and
of persons enjoying immunity under Article 37 may be waived by the
sending State.
2.
Waiver must always be express.
3.
The initiation of proceedings by a diplomatic agent or by
a person enjoying immunity from jurisdiction under Article 37 shall
preclude him from invoking immunity from jurisdiction in respect of
any counter-claim directly connected with the principal claim.
4.
Waiver of immunity from jurisdiction in respect of civil
or administrative proceedings shall not be held to imply waiver of
immunity in respect of the execution of the judgment, for which a
separate waiver shall be necessary.
Article 33
1.
Subject to the provisions of paragraph 3 of this Article, a
diplomatic agent shall with respect to services rendered for the sending
State be exempt from social security provisions which may be in force
in the receiving State.
2.
The exemption provided for in paragraph 1 of this Article
shall also apply to private servants who are in the sole employ of a
diplomatic agent, on condition:
(a) that they are not nationals of or permanently
resident in the receiving State; and (b) that they are covered
by the social security provisions which may be in force in
the sending State or a third State.
3.
A diplomatic agent who employs persons to whom the
exemption provided for in paragraph 2 of this Article does not apply
shall observe the obligations which the social security provisions of
the receiving State impose upon employers.
4.
The exemption provided for in paragraphs 1 and 2 of this
Article shall not preclude voluntary participation in the social
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security system of the receiving State provided that such participation
is permitted by that State.
5.
The provisions of this Article shall not affect bilateral or
multilateral agreements concerning social security concluded
previously and shall not prevent the conclusion of such agreements in
the future.
Article 34
A diplomatic agent shall be exempt from all dues and taxes,
personal or real, national, regional or municipal, except:
(a) indirect taxes of a kind which are normally
incorporated in the price of goods or services; (b) dues and taxes
on private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State
for the purposes of the mission; (c) estate, succession or
inheritance duties levied by the receiving State, subject to the
provisions of paragraph 4 of Article 39;
(d) dues and taxes on private income having its source in the
receiving State and capital taxes on investments made in
commercial undertakings in the receiving State; (e) charges
levied for specific services rendered; (f) registration, court or
record fees, mortgage dues and stamp duty, with respect to
immovable property, subject to the provisions of Article 23.
Article 36
1.
The receiving State shall, in accordance with such laws
and regulations as it may adopt, permit entry of and grant exemption
from all customs duties, taxes, and related charges other than charges
for storage, cartage and similar services, on:
(a) articles for the official use of the mission; (b) articles
for the personal use of a diplomatic agent or members of his
family forming part of his household, including articles intended
for his establishment.
2.
The personal baggage of a diplomatic agent shall be
exempt from inspection, unless there are serious grounds for
presuming that it contains articles not covered by the exemptions
mentioned in paragraph 1 of this Article, or articles the import or
export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be
conducted only in the presence of the diplomatic agent or of his
authorized representative.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Article 37
1.
The members of the family of a diplomatic agent forming
part of his household shall, if they are not nationals of the receiving
State, enjoy the privileges and immunities specified in Articles 29 to
36.
2.
Members of the administrative and technical staff of the
mission, together with members of their families forming part of their
respective households, shall, if they are not nationals of or
permanently resident in the receiving State, enjoy the privileges and
immunities specified in Articles 29 to 35, except that the immunity
from civil and administrative jurisdiction of the receiving State
specified in paragraph 1 of Article 31 shall not extend to acts
performed outside the course of their duties. They shall also enjoy the
privileges specified in Article 36, paragraph 1, in respect of articles
imported at the time of first installation.
3.
Members of the service staff of the mission who are not
nationals of or permanently resident in the receiving State shall enjoy
immunity in respect of acts performed in the course of their duties,
exemption from dues and taxes on the emoluments they receive by
reason of their employment and the exemption contained in Article 33.
4.
Private servants of members of the mission shall, if they
are not nationals of or permanently resident in the receiving State, be
exempt from dues and taxes on the emoluments they receive by reason
of their employment. In other respects, they may enjoy privileges and
immunities only to the extent admitted by the receiving State.
However, the receiving State must exercise its jurisdiction over those
persons in such a manner as not to interfere unduly with the
performance of the functions of the mission.
Article 38
1.
Except insofar as additional privileges and immunities
may be granted by the receiving State, a diplomatic agent who is a
national of or permanently resident in that State shall enjoy only
immunity from jurisdiction, and inviolability, in respect of official acts
performed in the exercise of his functions.
2.
Other members of the staff of the mission and private
servants who are nationals of or permanently resident in the receiving
State shall enjoy privileges and immunities only to the extent admitted
by the receiving State. However, the receiving
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211
State must exercise its jurisdiction over those persons in such a manner
as not to interfere unduly with the performance of the functions of the
mission.
Article 39
1.
Every person entitled to privileges and immunities shall
enjoy them from the moment he enters the territory of the receiving
State on proceeding to take up his post or, if already in its territory,
from the moment when his appointment is notified to the Ministry for
Foreign Affairs or such other ministry as may be agreed.
2.
When the functions of a person enjoying privileges and
immunities have come to an end, such privileges and immunities shall
normally cease at the moment when he leaves the country, or on expiry
of a reasonable period in which to do so, but shall subsist until that
time, even in case of armed conflict. However, with respect to acts
performed by such a person in the exercise of his functions as a
member of the mission, immunity shall continue to subsist.
Finally, “it is the duty of all persons enjoying such privileges and immunities
to respect the laws and regulations of the receiving state.” (Art. 41) Nor may they
“practice for personal profit any professional or commercial activity” in the
receiving state. (Art. 42)
Consuls and consular immunities.
Consuls are not concerned with political matters. They attend rather to
administrative and economic issues such as the issuance of visas.
The codification of the law on consular relations may be found in the Vienna
Convention on Consular Relations which entered into force in 1967. Some of the
more important provisions are the following:
Article 5. CONSULAR FUNCTIONS
Consular functions consist in:
(a) protecting in the receiving State the interests of the
sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
(b) furthering the development of commercial, economic,
cultural and scientific relations between the sending State and the
receiving State and otherwise promoting friendly relations between
them in accordance with the provisions of the present Convention;
(c) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of
the receiving State, reporting thereon to the Government of the
sending State and giving information to persons interested;
(d) issuing passports and travel documents to nationals of the
sending State, and visas or appropriate documents to persons wishing
to travel to the sending State;
(e) helping and assisting nationals, both individuals and
bodies corporate, of the sending State;
(0 acting as notary and civil registrar and in capacities of a
similar kind, and performing certain functions of an administrative
nature, provided that there is nothing contrary thereto in the laws and
regulations of the receiving State;
(g) safeguarding the interests of nationals, both individuals
and bodies corporate, of the sending State in cases of succession
mortis causa in the territory of the receiving State, in accordance with
the laws and regulations of the receiving State;
(h) safeguarding, within the limits imposed by the laws and
regulations of the receiving State, the interests of minors and other
persons lacking full capacity who are nationals of the sending State,
particularly where any guardianship or trusteeship is required with
respect to such persons;
(i)
subject to the practices and procedures obtaining in the
receiving State, representing or arranging appropriate representation
for nationals of the sending State before the tribunals and other
authorities of the receiving State, for the purpose of obtaining, in
accordance with the laws and regulations of the receiving State,
provisional measures for the preservation of the rights and interests of
these nationals, where, because of absence or any other reason, such
nationals are unable at the proper time to assume the defence of their
rights and interests;
(j) transmitting judicial and extrajudicial documents or
executing letters rogatory or commissions to take evidence for the
courts of the sending State in accordance with international agree-
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213
ments in force or, in the absence of such international agreements, in
any other manner compatible with the laws and regulations of the
receiving State;
(k) exercising rights of supervision and inspection provided for
in the laws and regulations of the sending State in respect of vessels
having the nationality of the sending State, and of aircraft registered in
that State, and in respect of their crews;
(1) extending assistance to vessels and aircraft mentioned in
sub-paragraph (k) of this Article and to their crews, taking statements
regarding the voyage of a vessel, examining and stamping the ship’s
papers, and, without prejudice to the powers of the authorities of the
receiving State, conducting investigations into any incidents which
occurred during the voyage, and settling disputes of any kind between
the master, the officers and the seamen in so far as this may be
authorized by the laws and regulations of the sending State;
(m) performing any other functions entrusted to a consular post
by the sending State which are not prohibited by the laws and
regulations of the receiving State or to which no objection is taken by
the receiving State or which are referred to in the international
agreements in force between the sending State and the receiving State.
The head of a consular post is admitted to the exercise of his functions by an
authorization from the receiving State termed an exequatur. There is no prescribed
form, but without it, he may not enter upon his duties. The receiving State may at
any time notify the sending State that a consular officer is persona non grata or that
any other member of the consular staff is not acceptable. In that event, the sending
State shall, as the case may be, either recall the person concerned or terminate his
functions with the consular post.
The receiving state has the duty to protect the consular premises, archives and
interests of the sending state. (Arts. 27, 31, 32, 33) The receiving state must insure
the unimpeded functioning of the consular offices.
Article 34. FREEDOM OF MOVEMENT
Subject to its laws and regulations concerning zones entry into
which is prohibited or regulated for reasons of national
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
security, the receiving State shall ensure freedom of movement and
travel in its territory to all members of the consular post.
Article 35. FREEDOM OF COMMUNICATION
1. The receiving State shall permit and protect freedom of
communication on the part of the consular post for all official
purposes. In communicating with the Government, the diplomatic
missions and other consular posts, wherever situated, of the sending
State, the consular post may employ all appropriate means, including
diplomatic or consular couriers, diplomatic or consular bags and
messages in code or cipher. However, the consular post may install
and use a wireless transmitter only with the consent of the receiving
State.
2. The official correspondence of the consular post shall be
inviolable.
Official correspondence means all correspondence relating to
the consular post and its functions.
3. The consular bag shall be neither opened nor detained.
Nevertheless, if the competent authorities of the receiving State have
serious reason to believe that the bag contains something other than
the correspondence, documents or articles referred to in paragraph 4 of
this Article, they may request that the bag be opened in their presence
by an authorized representative of the sending State. If this request is
refused by the authorities of the sending State, the bag shall be
returned to its place of origin.
4. The packages constituting the consular bag shall bear
visible external marks of their character and may contain only official
correspondence and documents or articles intended exclusively for
official use.
Article 36. COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a)
consular officers shall be free to communicate with
nationals of the sending State and to have access to them.
Nationals of the sending State shall have the same freedom with
respect to communication with and access to consular officers
of the sending State; (b) if he so requests,
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the competent authorities of the receiving State shall, without
delay, inform the consular post of the sending State if, within its
consular district, a national of that State is arrested or committed
to prison or to custody pending trial or is detained in any other
manner. Any communication addressed to the consular post by
the person arrested, in prison, custody or detention shall also be
forwarded by the said authorities without delay. The said
authorities shall inform the person concerned without delay of
his rights under this sub-paragraph; (c) consular officers shall
have the right to visit a national of the sending State who is in
prison, custody or detention, to converse and correspond with
him and to arrange for his legal representation. They shall also
have the right to visit any national of the sending State who is in
prison, custody or detention in their district in pursuance of a
judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or
detention if he expressly opposes such action.
Article 41. PERSONAL INVIOLABILITY OF CONSULAR
OFFICERS
1.
Consular officers shall not be liable to arrest or deten
tion pending trial, except in the case of a grave crime and pursuant to a
decision by the competent judicial authority.
Article 42. NOTIFICATION OF ARREST, DETENTION OR
PROSECUTION
In the event of the arrest or detention, pending trial, of a member
of the consular staff, or of criminal proceedings being instituted against
him, the receiving State shall promptly notify the head of the consular
post.
Article 43. IMMUNITY FROM JURISDICTION
1.
Consular officers and consular employees shall not be
amenable to the jurisdiction of the judicial or administrative authorities
of the receiving State in respect of acts performed in the exercise of
consular functions.
2.
The provisions of paragraph 1 of this Article shall not,
however, apply in respect of a civil action either:
216
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
(a) arising out of a contract concluded by a consular
officer or a consular employee in which he did not contract
expressly or impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the
receiving State caused by a vehicle, vessel or aircraft.
Article 44. LIABILITY TO GIVE EVIDENCE
1. Members of a consular post may be called upon to attend as
witnesses in the course of judicial or administrative proceedings. A
consular employee or a member of the service staff shall not, except in
the cases mentioned in paragraph 3 of this Article, decline to give
evidence. If a consular officer should decline to do so, no coercive
measure or penalty may be applied to him.
Article 45. WAIVER OF PRIVILEGES AND IMMUNITIES
1.
The sending State may waive, with regard to a member of
the consular post, any of the privileges and immunities provided for in
Articles 41,43 and 44.
Diplomatic and consular immunities were the subject in the case of United
States v. Tehran:
US DIPLOMATIC AND CONSULAR STAFF IN IRAN CASE
United States v. Tehran ICJ Rep 1980 3
On 4 November 1979, Iranian students seized the US
Embassy in Tehran and a number of consulates in outlying
cities. The Iranian authorities failed to protect the Embassy and
later appeared to adopt the students’ actions. Over 50 US
nationals (mostly diplomatic and consular staff) were held for
444 days. The ICJ had indicated provisional measures against
Iran (ICJ Rep 1979 7), and in this case the US sought a
declaration, inter alia, that Iran had violated the two Vienna
Conventions, and calling for the release of the hostages and the
vacation of the Embassy and consulates. The Court considered
whether the initial attack by the students could be attributed to
the Iranian Government and whether Iran was therefore in
violation of its international obligations.
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68. The Court is therefore led inevitably to conclude, in
regard to the first phase of the events which has so far been considered,
that on 4 November 1979, the Iranian authorities:
(a) were fully aware of their obligations under the
conventions in force to take appropriate steps to protect the
premises of the United States Embassy and its diplomatic and
consular staff from any attack and from any infringement of
their inviolability, and to ensure the security of such other
persons as might be present on the said premises;
(b) were fully aware, as a result of the appeals for help
made by the United States Embassy, of the urgent need for
action on their part;
(c) had the means at their disposal to perform their
obligations;
(d)
completely failed to comply with these obligations.
Similarly, the Court is led to conclude that the Iranian
authorities were equally aware of their obligations to protect the
United States Consulates at Tabriz and Shiraz, and of the need for
action on their part, and similarly failed to use the means which were
at their disposal to comply with their obligations.
69. The second phase of the events which are the subject of
the United States’ claims comprises the whole series of facts which
occurred following the completion of the occupation of the United
States Embassy by the militants, and the seizure of the Consulates at
Tabriz and Shiraz. The occupation having taken place and the
diplomatic and consular personnel of the United States’ mission
having been taken hostages, the action required of the Iranian
Government by the Vienna Conventions and by general international
law manifest. Its plain duty was at once to make every effort, and to
take every appropriate step, to bring these flagrant infringements of the
inviolability of the premises, archives and diplomatic and consular
staff of the United States Embassy to a speedy end, to restore the
Consulates at Tabriz and Shiraz to United States control, and in
general to re-establish the status quo and to offer reparation for the
damage.
76. The Iranian authorities’ decision to continue the subjection
of the premises of the United States Embassy to occupation by
militants and of the Embassy staff to detention as hostages, clearly
gave rise to repeated and multiple breaches of the applica
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
ble provisions of the Vienna Conventions even more serious than
those which arose from their failure to take any steps to prevent the
attacks on the inviolability of these premises and staff.
87. In the present case, the Iranian Government did not break
off diplomatic relations with the United States; and in response to a
question put to him by a Member of the Court, the United States
Agent informed the Court that at no time before the events of 4
November 1979 had the Iranian Government declared, or indicated
any intention to declare, any member of the United States diplomatic
or consular staff in Tehran persona non grata. The Iranian
Government did not, therefore, employ the remedies placed at its
disposal by diplomatic law specifically for dealing with activities of
the kind of which it now complains. Instead, it allowed a group of
militants to attack and occupy the United States Embassy by force,
and to seize the diplomatic and consular staff as hostages; instead, it
has endorsed that action of those militants and has deliberately
maintained their occupation of the Embassy and detention of its staff
as a means of coercing the sending State. It has, at the same time,
refused altogether to discuss this situation with representatives of the
United States. The Court, therefore, can only conclude that Iran did
not have recourse to the normal and efficacious means at its disposal,
but resorted to coeicive action against the United States Embassy and
its staff.
92. It is a matter of deep regret that the situation which
occasioned those observations has not been rectified since they were
made. Having regard to their importance the Court considers it
essential to reiterate them in the present Judgment. The frequency with
which at the present time the principles of international law governing
diplomatic and consular relations are set at naught by individuals or
groups of individuals is already deplorable. But this case is unique and
of very particular gravity because here it is not only private individuals
or groups of individuals that have disregarded and set at naught the
inviolability of a foreign embassy, but the government of the receiving
State itself. Therefore, in recalling yet again the extreme importance of
the principles of law which it is called upon to apply in the present
case, the Court considers it to be its duty to draw the attention of the
entire international community, of which Iran itself has been a
member since time immemorial, to the irreparable harm that may be
caused
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219
by events of the kind now before the Court. Such events cannot fail to
undermine the edifice of law carefully constructed by mankind over a
period of centuries, the maintenance of which is vital for the security
and well-being of the complex international community of the present
day, to which it is more essential than ever that the rules developed to
ensure the ordered progress of relations between its members should
be constantly and scrupulously respected.
Immunity of International Organizations.
The immunities of international organizations treated in Chapter 6.
The Act of State Doctrine.
The act of state doctrine arose from a series of cases in the United States
where the issue was whether United States courts could consider the validity of acts
of a foreign state alleged to be in violation of international law. The doctrine was
first stated in Underhill v. Hernandez.1
The background of the case was a 1892 revolution in Venezuela against the
legitimate government. General Hernandez commanded the anti-administration
party and, after defeating the army of the administration, he entered Bolivar to
assume leadership of the government. George F. Underhill was a citizen of the
United States who had constructed a waterworks system for the city of Bolivar,
under a contract with the government, and was engaged in supplying the place with
water. He also carried on a machinery repair business. Some time after the entry of
Gen. Hernandez, Underhill applied to him for a passport to leave the city.
Hernandez refused this request as well as requests made by others in Underhill’s
behalf. The purpose of Hernandez’s refusal was to coerce Underhill to operate his
waterworks and his repair works for the benefit of the community and the
revolutionary forces. After Underhill was finally allowed to leave, he filed suit in
the United States to recover damages for the detention caused by reason of the
denial of his permit to leave, for his alleged confinement to his own house, and for
certain alleged assaults and affronts by the soldiers of Hernandez’s army. In
denying the plea of Underhill, the U.S. court ruled with what is now known as the
“act of state doctrine”:
7
168 U.S. 250 (1897), November 29,1897.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
220
Every sovereign state is bound to respect the independence of
every other sovereign state, and the courts of one country will not sit in
judgment on the acts of the government of another, done within its
own territory. Redress of grievances by reason of such acts must be
obtained through the means open to be availed of by sovereign powers
as between themselves.
The doctrine is similar to but different from the doctrine of sovereign
immunity. What underlies it was explained later in Banco National de Cuba v.
Sabbatinos which characterized it as a rule not of international law but of judicial
restraint in domestic law whereby courts refrain from making decisions in
deference to the executive who is the principal architect of foreign relations. The
Court said:
The act of state doctrine does, however, have “constitutional”
underpinnings. It arises out of the basic relationships between branches
of government in a system of separation of powers. It concerns the
competency of dissimilar institutions to make and implement
particular kinds of decisions in the area of international relations. The
doctrine as formulated in past decisions expresses the strong sense of
the Judicial Branch that its engagement in the task of passing on the
validity of foreign acts of state may hinder rather than further this
country’s pursuit of goals both for itself and for the community of
nations as a whole in the international sphere....
The act of state doctrine was again taken up in Alfred Dunhill of London,
Inc. v. Cuba.9 The issue in the case was whether the failure of Cuba to return to
Dunhill funds mistakenly paid by Dunhill for cigars that had been sold to Dunhill
by certain expropriated Cuban cigar businesses was an “act of state” by Cuba
precluding an affirmative judgment against respondents. The decision of the Court
limited the scope of the act of state doctrine:
If we assume with the Court of Appeals that the Cuban
Government itself had purported to exercise sovereign power to
confiscate the mistaken payments belonging to three foreign creditors
and to repudiate interventors’ adjudicated obligation to return those
funds, we are nevertheless persuaded by the arguments of petitioner
and by those of the United States that the concept of
*
3
7
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221
an act of state 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. Our cases have not yet gone so far,
and we decline to expand their reach to the extent necessary to affirm
the Court of Appeals.
sjc $ $ $ *
Of course, sovereign immunity has not been pleaded in this
case; but it is beyond cavil that part of the foreign relations law
recognized by the United States is that the commercial obligations of a
foreign government may be adjudicated in those courts otherwise
having jurisdiction to enter such judgments. Nothing in our national
policy calls on us to recognize as an act of state a repudiation by Cuba
of an obligation adjudicated in our courts and arising out of the
operation of a commercial business by one of its instrumentalities. ...
Further refinement was made in Kirkpatrick Co. v. Environmental Tectonics
Corp.'0 The case had for background a contract entered into between the Nigerian
government with Kirkpatrick for the construction and equipment of an aeromedical
center at Kaduna Air Force Base in Nigeria. Environmental Tectonics Corporation,
an unsuccessful bidder for the Kaduna contract, learned that Kirkpatrick had bribed
Nigerian officals in winning the contract. Environmental Tectonics brought the
matter to the attention of the Nigerian Air Force and to the United States Embassy
in Lagos. Following an investigation by the Federal Bureau of Investigation, the
United States Attorney for the District of New Jersey brought charges against
Kirkpatrick for violations of the Foreign Corrupt Practices Act of 1977. Kirkpatrick
pleaded guilty. Whereupon, Environmental Tectonics brought a civil action against
Kirkpatrick and other private parties involved in the bribery to seek damages under
the Racketeer Influenced and Corrupt Organizations Act and other statutes. The
defendants moved to dismiss the complaint on the ground that the action was
barred by the act of state doctrine.
When the case reached the Supreme Court, the Court ruled that the act of
state doctrine is not applicable where the validity of a foreign government act is not
in issue:
l0
493 U.S. 400,410 (1990).
222
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
The short of the matter is this: Courts in the United States have
the power, and ordinarily the obligation, to decide cases and
controversies properly presented to them. The act of state doctrine
does not establish an exception for cases and controversies that may
embarrass foreign governments, but merely requires that, in the
process of deciding, the acts of foreign sovereigns taken within their
own jurisdictions shall be deemed valid. That doctrine has no
application to the present case because the validity of a foreign
sovereign act is not at issue.
Chapter 11 STATE RESPONSIBILITY
In traditional international law, individuals are generally considered “objects”
and not “subjects” of international law. They possess neither international legal
rights which they could assert on their own. Whatever wrongs may be committed
against them can be redressed only by states or organizations with international
personality. Individuals, therefore, can be objects of state vs. state litigation. Out of
this situation there have arisen doctrines regarding the protection of individuals and
the responsibility of states for injuries inflicted on individuals. State responsibility
for the ill-treatment of aliens is a common form of responsibility that arises in
international law. This chapter will deal with the doctrine on the protection of aliens
and on the still evolving subject of state responsibility.
Protection of Aliens.
No state is obliged to admit aliens into its territory unless there is a treaty
requiring it. This principle is an aspect of sovereignty. Realistically, however, it is
difficult to deny admission to all. Thus, what states generally do is to impose legal
standards for admission. Once admitted, at least under democratic regimes, aliens
may not be expelled without due process.
From the perspective of the state of their nationality, aliens are “nationals
abroad.” They, therefore remain important for the state of their nationality. Hence,
states do have a common interest in the protection of aliens. The practice of the
proper treatment of aliens is based on this commonality of interest. States protect
aliens within their jurisdiction in the expectation that their own nationals will be
properly treated when residing or sojourning abroad. In fact, mistreatment of aliens
is a common cause of international responsibility.
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Ill-treatment of foreign nationals can come in various forms, e.g.,
mistreatment by judicial or police authorities, unlawful expropriation of property,
failure to prosecute those who attack foreign nationals, or what is called “denial of
justice” or denial of due process of law.
There is a well-developed customary law for the protection of aliens. The
instrument used for the protection of aliens is “diplomatic protection.” This is still
based on the traditional notion that the individual is an inappropriate subject of
international law and hence must have recourse to his or her state of nationality for
protection. The theory underlying the system is that injury to a national abroad is
injury to the individual’s state of nationality. The interest of the state is in the
redress of the injury to itself and not of the injury to the individual. Individuals,
therefore, are at the mercy of their own state. States enjoy discretion whether or not
to espouse claims raised by individuals in their own behalf. States might see their
own sovereign interests as overriding whatever private interests their nationals
might have. Moreover, as indicated in the Nottebohm case in Chapter 8, in the case
of persons holding dual nationality, an “effective national link” with the person
must exist for a state’s interest in an individual to be recognized by other states.
Corporations and Shareholders
The doctrine of “effective link” as applied to corporations received treatment
in the Barcelona Traction Case.' The claim, which was brought before the Court
on 19 June 1962, arose out of the adjudication in bankruptcy in Spain of Barcelona
Traction, a company incorporated in Canada. The claim’s object was to seek
reparation for damage alleged by Belgium to have been sustained by Belgian
nationals, shareholders in the company, as a result of acts said to be contrary to
international law committed towards the company by organs of the Spanish State.
The Court found that Belgium lacked jus standi to exercise diplomatic
protection of shareholders in a Canadian company with respect to measures taken
against that company in Spain. It observed that when a State admits into its territory
foreign investments or foreign nationals it is bound to extend to them the protection
of the law and to assume obligations concerning the treatment to be afforded them.
But such obligations are not absolute. In order to bring a claim in respect
'Belgium v. Spain, (1970) ICJ Rep.
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225
of the breach of such an obligation, a State must first establish its right to do so.
The breach, if any, was committed in this case against the company. Only the
company, which was endowed with legal personality, could take action in respect of
matters that were of a corporate character. It may be true that a wrong done to the
company frequently causes prejudice to its shareholders; but this does not imply
that both are entitled to claim compensation. Whenever a shareholder’s interests are
harmed by an act done to the company, it is to the latter that he has to look to
institute appropriate action. An act infringing only the company’s rights do not
involve responsibility towards the shareholders, even if their interests are affected.
In order for the situation to be different, the act complained of must be aimed at the
direct rights of the shareholder as such, which was not the case here.
As to who should have the right to protect the corporation, Barcelona
Traction says that it is the state of nationality of the corporation, in this case
Canada, which has the right, and not Belgium.
Standard for the Protection of Aliens
What is the international standard for the protection of aliens? International
law has gone a long way from ancient times when aliens were treated as “outlaws”
not deserving protection. Roman law progressed from this under the concept of jus
gentium, which was applicable to both citizens and aliens, as distinct from jus civile
which was applicable only to Roman citizens. The advent of Christianity further
improved the condition of aliens. The rights of aliens expanded further with the
growth of international commerce in modem times leading to development of the
concept of “denial of justice” as an international concern.
Two standards have emerged in modem times to compete for recognition as
the acceptable standard. The first is what is called the doctrine of “national
treatment” or “equality of treatment.” Aliens are treated in the same manner as
nationals of the state where they reside. There is a bright side and a dark side to this
doctrine. The bright side is that aliens would enjoy the same benefits as local
nationals. The dark side is that, if the state is tyrannical and its municipal laws are
harsh and violative of human rights even of its own citizens, then aliens would
likewise be subject to such harsh laws.
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The other standard is called the “minimum international standard” which
says that, however harsh the municipal laws might be against a state’s own citizens,
aliens should be protected by certain minimum standards of humane protection.
This is now the widely accepted standard.
The “minimum standard” is obviously abstract and it is not easy to
determine what its contents are. An elaboration of this abstract standard may be
seen in a quotation from the resolution of the Neer Claim? Mr. Neer was a US
national working in Mexico. He was stopped by armed men and shot to death. It
was claimed that the Mexican government had been negligent in their investigation
of the murder. This was rejected by the Joint Claims Commission saying:
. . . [w]ithout attempting to announce a precise formula, it is in
the opinion of the Commission possible to hold (first) that the
propriety of the government acts should be put to the tests of
international standards, and (second) that the treatment of an alien, in
order to constitute an international delinquency should amount to an
outrage, to bad faith, to willful neglect of duty, or to an insufficiency
of governmental action so far short of international standards that
every reasonable and impartial man would readily recognize its
insufficiency. Whether the insufficiency proceeds from deficient
execution of an intelligent law or from the fact that the laws of the
country do not empower the authorities to measure up to international
standards is immaterial.
The Harvard Draft Convention on the Responsibility of States for Damages
puts it in terms of the more limited concept of “denial of justice.”
Article 9. Denial of justice exists when there is a denial,
unwarranted delay or obstruction of access to courts, gross deficiency
in the administration of judicial or remedial process, failure to provide
those guarantees which are generally considered indispensable to the
proper administration of justice, or a manifestly unjust judgment. An
error of a national court which does not produce manifest injustice is
not denial of justice.
2
United States v. Mexico, 4 RIAA (1926).
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227
Enforcement Regimes
The International Court of Justice, when its jurisdiction is appealed to by
states in conflict, can resolve issues of violations of the rights of aliens. However,
claims may also be settled by ad hoc tribunals established for the purpose.
Examples are the US-Iran Claims Tribunal established by the US and Iran to deal
with claims of either party arising from the Islamic Revolution; the UN
Compensation Commission established by the Security Council in 1991 to deal
with claims arising from Iraq’s invasion of Kuwait. States may also enter into lump
sum settlements such as the US-Cambodia (1994) and US-Vietnam (1995) Claims
Settlement Agreements.
Doctrine of State Responsibility.
The customary law doctrine on the protection of aliens should be seen in
relation to the doctrine on “state responsibility.” When an injury has been inflicted,
there is need to determine whether the state can be held responsible for it. One of
the principles most strongly held by states is that if a state violates a customary rule
of international law or a treaty obligation, it commits an “internationally wrongful
act.” The International Law Commission for some years now has been working on
the codification of the law on the subject. At its fifty-third session (2001), the
International Law Commission adopted on second reading a complete text of the
Articles on Responsibility of States for Internationally Wrongful Acts. The Articles
have been referred to the General Assembly for consideration.
Although its work has not yet been finalized, much of what it has done so far
consists of principles which are widely accepted. What need to be understood are:
(1) the elements of an internationally wrongful act; (2) the attributability of the
wrongful act to the state; and (3) the enforcement of the obligation that arises from
the wrongful act. Excerpts from the 2001 Draft of the International Law
Commission will be used as handy guide.
Internationally wrongful act.
Article 1. Responsibility of a State for its internationally
wrongful acts
Every internationally wrongful act of a State entails the
international responsibility of that State.
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States derive immense benefits from the international legal system.
Accordingly, when a state consents to be a part of that system, it also accepts
corresponding legal obligations. Primarily, it must accept responsibility for actions
which have an effect on other international legal persons. This is basically what
Article 1 says. No state can escape this responsibility when once it has committed
an act which satisfies the requirements of an “internationally wrongful act.”
Article 2. Elements of an internationally wrongful act of a
State
There is an internationally wrongful act of a State when conduct
consisting of an action or omission:
(a)
(b)
Is attributable to the State under international law; and
Constitutes a breach of an international obligation of the
State.
Article 3. Characterization of an act of a State as internationally
wrongful
The characterization of an act of a State as internationally
wrongful is governed by international law. Such characterization is not
affected by the characterization of the same act as lawful by internal
law.
Article 12. Breach of an international obligation
There is a breach of an international obligation by a State when
an act of that State is not in conformity with what is required of it by
that obligation, regardless of its origin or character.
Article 2 says that that the elements of an internationally wrongful act consist
of a subjective and an objective element. The subjective element is that the act must
be attributable not to the persons or agencies who performed it but to the state
itself. The objective element is a violation of an international obligation. It may
consist of something either active (action) or passive (an omission.)
Articles 3 and 12 say that what determines the wrongful character of the act
is international law and not internal law. The international law violated can be
customary or conventional.
Attribution to the State.
The acts which can be attributed to the state may be acts of state organs, the
acts of other persons, or the acts of revolutionaries.
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Acts of state organs
Article 4. Attribution to the State of the conduct of its organs
1.
For the purposes of the present articles, the conduct of any
State organ acting in that capacity shall be considered an act of that
State under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds in
the organization of the State, and whatever its character as an organ of
the central government or of a territorial unit of the State.
2.
For the purposes of paragraph 1, an organ includes any
person or body which has that status in accordance with the internal
law of the State.
Article 5. Attribution to the State of the conduct of entities
exercising elements of the governmental authority.
The conduct of an entity which is not an organ of the State under
Article 4 but which is empowered by the law of that State to exercise
elements of the governmental authority shall be considered an act of
the State under international law, provided the entity was acting in that
capacity in the case in question.
Article 6. Attribution to the State of conduct in fact carried out
on its instructions or under its direction or control.
The conduct of a person or group of persons shall be considered
an act of the State under international law if the person or group of
persons was in fact acting on the instructions of, or under the direction
or control of, that State in carrying out the conduct.
Article 7. Attribution to the State of certain conduct carried out
in the absence of the official authorities
The conduct of a person or group of persons shall be considered
an act of the State under international law if the person or group of
persons was in fact exercising elements of the governmental authority
in the absence or default of the official authorities and in circumstances
such as to call for the exercise of those elements of authority.
Article 8. Attribution to the State of the conduct of organs
placed at its disposal by another State
The conduct of an organ placed at the disposal of a State by
another State shall be considered an act of the former State under
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international law if the organ was acting in the exercise of elements of
the governmental authority of the State at whose disposal it had been
placed.
Article 9. Attribution to the State of the conduct of organs acting
outside their authority or contrary to instructions.
The conduct of an organ of a State or of an entity empowered to
exercise elements of the governmental authority, such organ or entity
having acted in that capacity, shall be considered an act of the State
under international law even if, in the particular case, the organ or
entity exceeded its authority or contravened instructions concerning its
exercise.
CAIRE CLAIM
France v. Mexico (1929)
French-Mexican Claims Commission
[Caire, a French national, was killed in Mexico by Mexican
soldiers after they had demanded money from him.]
Verzijl, Presiding Commissioner
(4) Responsibility of Mexico for actions of individual military
personnel, acting without orders or against the wishes of their
commanding officers and independently of the needs and aims of the
revolution...
In approaching the examination of the questions indicated under
4 in the light of the general principles I have just outlined, I should like
to make clear first of all that I am interpreting the said principles in
accordance with the doctrine of the “objective responsibility” of the
States, that is, the responsibility for the acts of the officials or organs
of a State, which may devolve upon it even in the absence of any
“fault” of its own. It is widely known that theoretical conceptions in
this sphere have advanced a great deal in recent times, and that the
innovating work of Dionisio Anzilotti in particular has paved the way
for new ideas, which no longer rank the responsibility of the State for
the acts of its officials as subordinate to the question of the “fault”
attaching to the State itself. Without going into the question of whether
these new ideas, which are perhaps too absolute, may require some
modifications in the direction proposed by Dr. Karl Strupp, I can say
that I regard them as perfectly correct in that they tend to impute to the
State, in international affairs, the responsibility for all the acts
committed by its officials or organs which constitute
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offences from the point of view of the law of nations, whether the
official or organ in question has acted within or exceeded the limits of
his competence. “It is generally agreed,” as M. Bourquin has rightly
said, “that acts committed by the officials and agent of a State entail
the international responsibility of that State, even if the perpetrator did
not have specific authorization. This responsibility does not find its
justification in general principles — I mean those principles regulating
the judicial organization of the State. The act of an official is only
judicially established as an act of State if such an act lies within the
official’s sphere of competence. The act of an official operating
beyond this competence is not an act of State. It should not in
principle, therefore, affect the responsibility of the State. If its is
accepted in international law that the position is different, it is for
reasons peculiar to the mechanism of international life; it is because it
is felt that international relations would become too difficult, too
complicated and too insecure if foreign States were obliged to take into
account the often complex judicial arrangements that regulate
competence in the international affairs of a State. From this it is
immediately clear that in the hypothesis under consideration the
international responsibility of the State is purely objective in character,
and that it rests on an idea of guarantee, in which the subjective notion
of fault plays no part.”
But in order to be able to admit this so-called objective
responsibility of the State for acts committed by its officials or organs
outside their competence, they must have acted at least to all
appearances as competent officials or organs, or they must have used
powers or methods appropriate to their official capacity. ...
If the principles stated above are applied to the present case, and
if it is taken into account that the perpetrators of the murder of MJ.B.
Caire were military personnel occupying the ranks of “mayor” and
“capitan primero” aided by a few privates, it is found that the
conditions of responsibility formulated above are completely fulfilled.
The officers in question, whatever their previous record, consistently
conducted themselves as officers in the brigade of the Villista general,
Tomas Urbina; in this capacity they began by exacting the remittance
of certain sums of money; they continued by having the victim taken to
a barracks of the occupying troops; and it was clearly because of the
refusal of M. Caire to meet their repeated demands that they finally
shot him. Under these circumstances, there remains no doubt that, even
if they are to be regarded as having acted outside their competence,
which is by no means certain, and even if their superior officers issued
a
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counter-order, these two officers have involved the responsibility of
the State, in view of the fact that they acted in their capacity of officers
and used the means placed at their disposition by virtue of that
capacity.
On these grounds, I have no hesitation in stating that, in
accordance with the most authoritative doctrine supported by
numerous arbitral awards, the events of 11 December 1914, which led
to the death of M J.-B. Caire, fall within the category of acts for which
international responsibility devolves upon the State to which the
perpetrators of the injury are amenable.
CORFU CHANNEL CASE UK
v. Albania, [1949] ICJ Rep.
The Corfu Channel Case (United Kingdom of Great Britain and
Northern Ireland-Albania) arose from incidents that occurred on
October 22nd 1946, in the Corfu Strait: two British destroyers struck
mines in Albanian waters and suffered damage, including serious loss
of life. The two 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 compensation?
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, secondly, on November
12th and 13th, 1946, when it undertook a sweep of the Strait?
* * * * *
The facts are as follows. On October 22nd, 1946, two British
cruisers and two destroyers, coming from the south, 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 checkswept in 1945. One of the destroyers, the Saumarez, 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. Forty-five British
officers and sailors lost their lives, and forty-two others were
wounded.
An incident had already occurred in these waters on May 15th,
1946: an Albanian battery had fired in the direction of two
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British cruisers. The United Kingdom Government had protested,
stating that innocent passage through straits is a right recognized by
international law; the Albanian Government had replied that foreign
warships and merchant vessels had no right to pass through Albanian
territorial waters without prior authorization; and on August 2nd, 1946,
the United Kingdom Government had replied that if, in the future, fire
was opened on a British warship passing through the channel, the fire
would be returned. Finally, on September 21st, 1946, the Admiralty in
London had cabled to the British Commander-in-Chief in the
Mediterranean to the following x effect: “Establishment of diplomatic
relations with Albania is again under consideration by His Majesty’s
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 them to do so
shortly.”
After the explosions on October 22nd, the United Kingdom
Government sent a Note to Tirana announcing its intention to sweep
the Corfu Channel shortly. The reply was that this consent would not
be given unless the operation in question took place outside Albanian
territorial waters and that any sweep undertaken in those waters would
be a violation of Albania’s sovereignty.
The sweep effected by the British Navy took place on
November 12th/13th 1946, in Albanian territorial waters and within
the limits of the channel previously swept. Twenty-two moored mines
were cut; they were mines of the German GY type.
The first question put by the Special Agreement is that of
Albania’s responsibility, under international law, for the explosions on
October 22nd, 1946.
The Court finds, in the first place, that the explosions were
caused by mines belonging to the minefield discovered on November
13th. It is not, indeed, contested that this minefield had been recently
laid; it was in the channel, which had been previously swept and
check-swept and could be regarded as safe, that the explosions had
taken place. The nature of the damage shows that it was due to mines
of the same type as those swept on November 13th; finally, the theory
that the mines discovered on November 13th might have been laid
after the explosions on October 22nd is too improbable to be accepted.
In these circumstances the question arises what is the legal basis
of Albania’s responsibility? The Court does not feel that it
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need pay serious attention to the suggestion that Albania herself laid
the mines: that suggestion was only put forward pro memoria, without
evidence in support, and could not be reconciled with the undisputed
fact that, on the whole Albanian littoral, there are only a few launches
and motor boats. But the United Kingdom also alleged the connivance
of Albania: that the mine laying had been carried out by two Yugoslav
warships by the request of Albania, or with her acquiescence. The
Court finds that this collusion has not been proved. A charge of such
exceptional gravity against a State would require a degree of certainty
that has not been reached here, and the origin of the mines laid in
Albanian territorial waters remains a matter for conjecture.
The United Kingdom also argued that, whoever might be the
authors of the mine laying, it could not have been effected without
Albania’s knowledge. True, the mere fact that mines were laid in
Albanian waters neither involves prima facie responsibility nor does it
shift the burden of proof. On the other hand, the exclusive control
exercised by a State within its frontiers may make it impossible to
furnish direct proof of facts which would involve its responsibility in
case of a violation of international law. The State which is the victim
must, in that ease, be allowed a more liberal recourse to inferences of
fact and circumstantial evidence; such indirect evidence must be
regarded as of especial weight when based on a series of facts, linked
together and leading logically to a single conclusion.
In the present case two series of facts, which corroborate one
another, have to be considered.
The first relates to the Albanian Government’s attitude before
and after the catastrophe. The laying of the mines took place in a
period in which it had shown its intention to keep a jealous watch on
its territorial waters and in which it was requiring prior authorization
before they were entered, this vigilance sometimes going so far as to
involve the use of force: all of which render the assertion of ignorance
a priori improbable. Moreover, when the Albanian Government had
become fully aware of the existence of a minefield, it protested
strongly against the activity of the British Fleet, but not against the
laying of the mines, though this act, if effected without her consent,
would have been a very serious violation of her sovereignty; she did
not notify shipping of the existence of the minefield, as would be
required by international law; and she did not undertake any of the
measures of judicial investigation which would seem to be incumbent
on her in such
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a case. Such an attitude could only be explained if the Albanian
Government, while knowing of the mine laying, desired the
circumstances in which it was effected to remain secret.
The second series of facts relates to the possibility of observing
the mine laying from the Albanian coast. Geographically, the channel
is easily watched: it is dominated by heights offering excellent
observation points, and it runs close to the coast (the nearest mine was
500 m. from the shore). The methodical and well-thought-out laying of
the mines compelled the minelayers to remain from two to two-and-ahalf hours in the waters between Cape Kiephali and the St. George’s
Monastery. In regard to that point, the naval experts appointed by the
Court reported, after enquiry and investigation on the spot, that they
considered it to be indisputable that, if a normal look-out was kept at
Cape Kiephali, Denta Point, and St. George’s Monastery, and if the
lookouts were equipped with binoculars, under normal weather
conditions for this area, the mine-laying operations must have been
noticed by these coastguards. The existence of a look-out post at Denta
Point was not established; but the Court, basing itself on the
declarations of the Albanian Government that lock-out posts were
stationed at other points, refers to the following conclusions in the
experts’ report: that in the case of mine laying 1) from the North
towards the South, the minelayers would have been seen from Cape
Kiephali; if from South towards the North, they would have been seen
from Cape Kiephali and St. George’s Monastery.
From all the facts and observations mentioned above, the Court
draws the conclusion that the laying of the minefield could not have
been accomplished without the knowledge of Albania. As regards the
obligations resulting for her from this knowledge, they are not
disputed. It was her duty to notify shipping and especially to warn the
ships proceeding through the Strait on October 22nd of the danger to
which they were exposed. In fact, nothing was attempted by Albania to
prevent the disaster, and these grave omissions involve her
international responsibility.
NICARAGUA V. US
[1986] ICJ Rep.
VI. Establishment of the facts: evidence and methods
employed by the Court
The Court has had to determine the facts relevant to the dispute.
The difficulty of its task derived from the marked disagreement
between the Parties, the non-appearance of the
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Respondent, the secrecy surrounding certain conduct, and the fact that
the conflict is continuing. On this last point, the Court takes the view,
in accordance with the general principles as to the judicial process, that
the facts to be taken into account should be those occurring up to the
close of the oral proceedings on the merits of the case (end of
September 1985).
With regard to the production of evidence, the Court indicates
how the requirements of its Statute in particular Article 53 and the
Rules of Court have to be met in the case, on the basis that the Court
has freedom in estimating the value of the various elements of
evidence. It has not seen fit to order an enquiry under Article 50 of the
Statute. With regard to certain documentary material (press articles
and various books), the Court has treated these with caution. It regards
than not as evidence capable of proving facts, but as material which
can nevertheless contribute to corroborating the existence of a fact and
be taken into account to show whether certain facts are matters of
public knowledge. With regard to statements by representatives of
States, sometimes at the highest level, the Court takes the view that
such statements are of particular probative value when they
acknowledge facts or conduct unfavourable to the State represented by
the person who made them. With regard to the evidence of witnesses
presented by Nicaragua; five witnesses gave oral evidence and another
a written affidavit-one consequence of the absence of the Respondent
was that the evidence of the witnesses was not tested by crossexamination. The Court has not treated as evidence any part of the
testimony which was a mere expression of opinion as to the
probability or otherwise of the existence of a fact not directly known
to the witness. With regard in particular to affidavits and sworn
statements made by members of a Government, the Court considers
that it can certainly retain such parts of this evidence as may be
regarded as contrary to the interests or contentions of the State to
which the witness has allegiance; for the rest such evidence has to be
treated with great reserve.
The Court is also aware of a publication of the United States
State Department entitled “Revolution Beyond Our Borders,
Sandinista Intervention in Central America” which was not submitted
to the Court in any form or manner contemplated by the Statute and
Rules of Court. The Court considers that, in view of the special
circumstances of this case, it may, within limits, make use of
information in that publication.
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VII. The facts imputable to the United States
1.
The Court examines the allegations of Nicaragua that the
mining of Nicaraguan ports or waters was carried out by United
States military personnel or persons of the nationality of Latin
American countries in the pay of the United States. After examining
the facts, the Court finds it established that, on a date in late 1983 or
early 1984, the President of the United States authorized a United
States Government agency to lay mines in Nicaraguan ports, that in
early 1984 mines were laid in or close to the ports of El Bluff,
Corinto and Puerto Sandino, either in Nicaraguan internal waters or in
its territorial sea or both, by persons in the pay and acting on the
instructions of that agency, under the supervision and with the logistic
support of United States agents; that neither before the laying of the
mines, nor subsequently, did the United States Government issue any
public and official warning to international shipping of the existence
and location of the mines; and that personal and material injury was
caused by the explosion of the mines, which also created risks
causing a rise in marine insurance rates.
2.
Nicaragua attributes to the direct action of United States
personnel, or persons in its pay, operations against oil installations, a
naval base, etc., listed in paragraph 81 of the Judgment. The Court
finds all these incidents, except three, to be established. Although it is
not proved that any United States military personnel took a direct part
in the operations, United States agents participated in the planning,
direction and support. The imputability to the United States of these
attacks appears therefore to the Court to be established.
3.
Nicaragua complains of infringement of its air space by
United States military aircraft. After indicating the evidence
available, the Court finds that the only violations of Nicaraguan air
space imputable to the United States on the basis of the evidence are
high altitude reconnaissance flights and low altitude flights on 7 to 11
November 1984 causing “sonic booms.”
With regard to joint military manoeuvres with Honduras
carried out by the United States on Honduran territory near the
Honduras/Nicaragua frontier, the Court considers that they may be
treated as public knowledge and thus sufficiently established.
4.
The Court then examines the genesis, development and
activities of the contra force, and the role of the United States in
relation to it. According to Nicaragua, the United States “con
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ceived, created and organized a mercenary army, the contra
force.” On the basis of the available information, the Court is not able
to satisfy itself that the Respondent State “created” the contra force in
Nicaragua, but holds it established that it largely financed, trained,
equipped, armed and organized the FDN, one element of the force.
It is claimed by Nicaragua that the United States Government
devised the strategy and directed the tactics of the contra force, and
provided direct combat support for its military operations. In the light
of the evidence and material available to it, the Court is not satisfied
that all the operations launched by the contra force, at every stage of
the conflict, reflected strategy and tactics solely devised by the United
States. It therefore cannot uphold the contention of Nicaragua on this
point. The Court however finds it clear that a number of operations
were decided and planned, if not actually by the United States
advisers, then at least in close collaboration with them, and on the
basis of the intelligence and logistic support which the United States
was able to offer. It is also established in the Court’s view that the
support of the United States for the activities of the contras took
various forms over the years, such as logistic support the supply of
information on the location and movements of the Sandinista troops,
the use of sophisticated methods of communication, etc. The
evidence does not however warrant a finding that the United States
gave direct combat support, if that is taken to mean direct
intervention by United States combat forces.
The Court has to determine whether the relationship of the
contras to the United States Government was such that it would be
right to equate the contras, for legal purposes, with an organ of the
United States Government, or as acting on behalf of that Government.
The Court considers that the evidence available to it is insufficient to
demonstrate the total dependence of the contras on United States aid.
A partial dependency, the exact extent of which the Court cannot
establish, may be inferred from the fact that the leaders were selected
by the United States, and from other factors such as the organization,
training and equipping of the force, planning of operations, the
choosing of targets and the operational support provided. There is no
clear evidence that the United States actually exercised such a degree
of control as to justify treating the contras as acting on its behalf.
5.
Having reached the above conclusion, the Court takes
the view that the contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law. For the
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United States to be legally responsible, it would have to be proved
that that State had effective control of the operations in the course of
which the alleged violations were committed.
Acts of Other Persons
Article 7. The conduct of a person or group of persons shall be
considered an act of the State under international law if the person or
group of persons was in fact exercising elements of the governmental
authority in the absence or default of the official authorities and in
circumstances such as to call for the exercise of those elements of
authority.
Article 8. The conduct of an organ placed at the disposal of a
State by another State shall be considered an act of the former State
under international law if the organ was acting in the exercise of
elements of the governmental authority of the State at whose disposal
it had been placed.
UNITED STATES V. IRAN [1980] ICJ Rep.
In its Judgment in the case concerning United States
Diplomatic and Consular Staff in Tehran, the Court decided (1) that
Iran has violated and is skill violating obligations owed by it to the
United States; (2) that these violations engage Iran’s responsibility;
(3) that the Government of Iran must immediately release the United
States nationals held as hostages and place the premises of the
Embassy in the hands of the protecting power; (4) that no member of
the United States diplomatic or consular staff may be kept in Iran to
be subjected to any form of judicial proceedings or to participate in
them as a witness; (5) that Iran is under an obligation to make
reparation for the injury caused to the United States, and (6) that the
form and amount of such reparation, failing agreement between the
parties, shall be settled by the Court. (The full text of the operative
paragraph is reproduced below.)
(a)
The events of 4 November 1979 (paras. 56-68)
The first phase of the events underlying the Applicant’s claims
covers the armed attack on the United States Embassy carried out on 4
November 1979 by Muslim Student Followers of the Imam’s Policy
(further referred to as “the militants” in the Judgment), the
overrunning of its premises, the seizure of its inmates as hostages,
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
the appropriation of its property and archives, and the conduct of the
Iranian authorities in the face of these occurrences.
The Court points out that the conduct of the militants on that
occasion could be directly attributed to the Iranian State only if it
were established that they were in fact acting on its behalf. The
information before the Court did not suffice to establish this with due
certainty. However, the Iranian State which, as the State to which the
mission was accredited, was under obligation to take appropriate
steps to protect the United States Embassy did nothing to prevent the
attack, stop it before it reached its completion or oblige the militants
to withdraw from the premises and release the hostages. This inaction
was in contrast with the conduct of the Iranian authorities on several
similar occasions at the same period, when they had taken appropriate
steps. It constituted, the Court finds, a clear and serious violation of
Iran’s obligations to the United States under Articles 22(2),
24,25,26,27 and 29 of the 1961 Vienna Convention on Diplomatic
Relations, of Articles 5 and 36 of the 1963 Vienna Convention on
Consular Relations, and of Article 11(4) of the 1955 Treaty. Further
breaches of the 1963 Convention had been involved in failure to
protect the Consulates at Tabriz and Shiraz.
The Court is therefore led to conclude that on 4 November
1979 the Iranian authorities were fully aware of their obligations
under the conventions in force, and also of the urgent need for action
on their part, that they had the means at their disposal to perform their
obligations, but that they completely failed to do so.
(b) Events since 4 November 1979 (paras. 69-79)
The second phase of the events underlying the United States’
claims comprises the whole series of facts which occurred following
the occupation of the Embassy by the militants. Though it was the
duty of the Iranian Government to take every appropriate step to end
the infringement of the inviolability of the Embassy premises and
staff, and to offer reparation for the damage, it did nothing of the
kind. Instead, expressions of approval were immediately heard from
numerous Iranian authorities. Ayatollah Khomeini himself
proclaimed the Iranian State’s endorsement of both the seizure of the
premises and the detention of the hostages. He described the Embassy
as a “centre of espionage,” declared that the hostages would (with
some exceptions) remain “under arrest” until the United States had
returned the former Shah and his property to Iran, and forbade all
negotiation with the United
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STATE RESPONSIBILITY
States on the subject. Once organs of the Iranian State had thus given
approval to the acts complained of and decided to perpetuate them as
a means of pressure on the United States, those acts were transformed
into acts of the Iranian State: the militants became agents of that
State, which itself became internationally responsible for their acts.
During the six months which ensued, the situation underwent no
material change: the Court’s Order of 15 December 1979 was
publicly rejected by Iran, while the Ayatollah declared that the
detention of the hostages would continue until the new Iranian
parliament had taken a decision as to their fate.
The Iranian authorities’ decision to continue the subjection of
the Embassy to occupation, and of its staff to detention as hostages,
gave rise to repeated and multiple breaches of Iran’s treaty
obligations, additional to those already committed at the time of the
seizure of the Embassy. (1961 Convention: Arts. 22, 24, 25,
26, 27 and 29 1963 Convention: inter alia, Art. 33; 1955 Treaty,
Art. 1114]).
With regard to the Charge d’affaires and the two other members of the United States mission who have been in the Iranian
Ministry of Foreign Affairs since 4 November 1979, the Court finds
that the Iranian authorities have withheld from them the protection
and facilities necessary to allow them to leave the Ministry in safety.
Accordingly, it appears to the Court that in their respect there have
been breaches of Articles 26 and 29 of the 1961 Vienna Convention.
Taking note, furthermore, that various Iranian authorities have
threatened to have some of the hostages submitted to trial before a
court, or to compel them to bear witness, the Court considers that, if
put into effect, that intention would constitute a breach of Article 31
of the same Convention.
Acts of Revolutionaries
Article 10. Conduct of an insurrectional or other movement
1.
The conduct of an insurrectional movement, which
becomes the new government of a State, shall be considered an act of
that State under international law.
2.
The conduct of a movement, insurrectional or other,
which succeeds in establishing a new State in part of the territory of a
pre-existing State or in a territory under its administration shall be
considered an act of the new State under international law.
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3.
This article is without prejudice to the attribution to a
State of any conduct, however related to that of the movement
concerned, which is to be considered an act of that State by virtue of
articles 4 to 9.
HOME MISSIONARY SOCIETY CLAIM UJS. v. Great Britain
(1920)
American and British Claims Arbitration Tribunal
In 1898, the collection of a tax newly imposed [by Great
Britain] on the natives of the Protectorate [of Sierra Leone] and
known as the “hut tax” was the signal for a serious and widespread
revolt in the Ronietta district. The revolt broke out on April 27 and
lasted for several days....
In the course of the rebellion all [the claimant’s]... Missions
were attacked, and either destroyed or damaged, and some of the
missionaries were murdered....
The contention of the United States Government before this
Tribunal is that the revolt was the result of the imposition and
attempted collection of the “hut tax”; that it was within the knowledge
of the British Government that this tax was the object of deep native
resentment; that in the face of the native danger the British
Government wholly failed to take proper steps for the maintenance of
order and the protection of life and property; that the loss of life and
damage to property was the result of this neglect and failure of duty,
and therefore that it is liable to pay compensation.
Now, even assuming that the “hut tax” was the effective cause
of the native rebellion, it was in itself a fiscal measure in accordance
not only with general usage in colonial administration, but also with
the usual practice in African countries....
It was a measure to which the British Government was perfectly entitled to resort in the legitimate exercise of its sovereignty, if
it was required....
Further, though it may be true that some difficulty might have
been foreseen, there was nothing to suggest that it would be more
serious than is usual and inevitable in a semi-barbarous and only
partially colonized protectorate, and certainly nothing to lead to any
apprehension of widespread revolt.
It is well-established principle of international law that no
government can be held responsible for the act of rebellious bodies of
men committed in violation of its authority, where it
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STATE RESPONSIBILITY
is itself guilty of no breach of good faith, or of no negligence in
suppressing insurrection. (Moore’s INTERNATIONAL LAW DIGEST, Vol. VI, p. 956;
VII, p. 957; Moore’s ARBITRATIONS, pp. 2991-92; British answer, p. 1)
The good faith of the British Government cannot be
questioned, and as to the conditions prevailing in the Protectorate
there is no evidence to support the contention that it failed in its duty
to afford to adequate protection for life and property. ...
The Tribunal decides that this claim must be dismissed.
SHORT v. IRAN
UJS. v. Iran (1987)
Iran-U.S. Claims Tribunal
The claimant, an American national, was employed by Lockheed, an American company, in Iran. On February 8, 1979, three days
before the Islamic Revolutionary Government took office, the
claimant was evacuated from Iran on company orders because of the
deteriorating situation. The claimant sought compensation for salary
and other losses resulting from his alleged expulsion contrary to
international law.
33. Where a revolution leads to the establishment of a new
government the State is held responsible for the acts of the
overthrown government insofar as the latter maintained control of the
situation. The successor government is also held responsible for the
acts imputable to the revolutionary movement which established it,
even if those acts occurred prior to its establishment, as a
consequence of the continuity existing between the new organization
of the State and the organization of the revolutionary movement. See
Draft Articles on State Responsibility, supra, Commentary on
Articuel 15, paras. 3 and 4....
34. The Claimant relies on acts committed by revolutionaries. ... He is unable, however, to identify any agent of the
revolutionary movement, the actions of which compelled him to leave
Iran. The acts of supporters of a revolution [as opposed to its agents]
cannot be attributed to the government following the success of the
revolution just as the acts of supporters of an existing government are
not attributable to the government. This was clearly recalled by the
International Court of Justice in United States Diplomatic and
Consular Staff in Tehran (United States v. Iran), 19801.CJ. 3,29,
para. 58 [above, p. 358]....
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35. The Claimant.... [relies] on the declarations made by the
leader of the Revolution, Ayatollah Khomeini... While these
statements are of anti-foreign and in particular anti-American
sentiments, the Tribunal notes that these pronouncements were of a
general nature and did not specify that Americans should be expelled
en masse. On this issue also, it is worthwhile to quote the
International Court of Justice, in the judgment [para. 59] just referred
to [above, p. 359], ... Similarly, it cannot be said that the declarations
referred to by the Claimant amounted to an authorization to
revolutionaries to act in such a way that the Claimant should be
forced to leave Iran forthwith. Nor is there any evidence that any
action prompted by such statements was the caused of the Claimant’s
decision to leave Iran. In these circumstances, the Tribunal is of the
view that the Claimant has failed to prove that his departure from Iran
can be imputed to the wrongful conduct of Iran. The claim is
therefore dismissed.
Preliminary Objections.
When brought before an international tribunal, the claim of denial of justice
may be lost due to failure to answer some preliminary objections. One objection
already seen is the lack of nationality link.
Another is the failure to exhaust national remedies. The obvious purpose of
this rule is to protect international courts from being swamped with cases which
are better handled locally. However, this rule applies only to cases founded on
diplomatic protection or on injury to aliens. Where the case is one involving a
treaty that touches on state rights which should be resolved on the international
plain. Similarly, where a case involves a treaty which establishes a Claims
Commission, it immediately goes to the Commission.
Reparation.
Article 31. Reparation
1.
The responsible State is under an obligation to make full
reparation for the injury caused by the internationally wrongful act.
2.
Injury consists of any damage, whether material or
moral, arising in consequence of the internationally wrongful act of a
State.
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Article 32. Irrelevance of internal law
The responsible State may not rely on the provisions of its
internal law as justification for failure to comply with its obligations
under this Part.
CHORZOW FACTORY CASE
Germany v. Poland [1928] PCIJ
[The case concerned the expropriation by Poland of a
factory at Chorzow contrary, as the Court had held, to the
Geneva Convention of 1922 between Germany and Poland on
Upper Silesia. In this judgment the Court ruled upon a claim
by Germany for an indemnity for the damage caused by the
illegal expropriation.]
The action of Poland which the Court has judged to be contrary
to the Geneva Convention is not an expropriation — to render which
lawful only the payment of fair compensation would have been
wanting; it is a seizure of property, rights and interests which could
not be expropriated even against compensation, save under the
exceptional conditions fixed by Article 7 of the said Convention....
If follows that the compensation due to the German
Government is not necessarily limited to the value of the undertaking
at the moment of dispossession, plus interest to the day of payment.
This limitation would only be admissible if the Polish Government
had the right to expropriate, and if its wrongful act consisted merely
in not having paid to the two Companies the just price of what was
expropriated; in the present case, such a limitation might result in
placing Germany and the interests protected by the Geneva
Convention, on behalf of which interests the German Government is
acting, in a situation more unfavourable than that in which Germany
and these interest would have been if Poland had respected the said
Convention. Such a consequence would not only be unjust, but also
and above all incompatible with the aim of Article 6 and following
articles of the Convention
— that is to say, the prohibition, in principle, of the liquidation of the
property, rights and interests of German nationals and of companies
controlled by German nationals in Upper Silesia — since it would be
tantamount to rendering lawful liquidation and unlawful
dispossession indistinguishable in so far as their financial results are
concerned.
The essential principle contained in the actual notion of an
illegal act — a principle which seems to be established by interna-
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
tional practice and in particular by the decisions of arbitral tribunals
— is that reparation must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which
would, in all probability, have exited if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a
sum corresponding to the value which a restitution in kind would
bear; the award, if need be, of damages for loss sustained which
would not be covered by restitution in kind or payment in place of it
— such are the principles which should serve to determine the
amount of compensation due for an act contrary to international law.
This conclusion particularly applies as regards the Geneva
Convention, the object of which it to provide for the maintenance of
economic life in Upper Silesia on the basis of respect for the status
quo. The dispossession of an industrial undertaking — the
expropriation of which is prohibited by the Geneva Convention
— then involves the obligation to restore the undertaking and, if this
be not possible, to pay its value at the time of the indemnification,
which value is designed to take the place of restitution which has
become impossible. To this obligation, in virtue of the general
principles of international law, must be added that of compensating
loss sustained as the result of the seizure. The impossibility, on which
the Parties are agreed, of restoring the Chorzow factory could
therefore have no other effect but that of substituting payment of the
value of the undertaking for restitution; it would not be in conformity
either with the principles of law or with the wish of the Parties to
infer from that agreement that the question of compensation must
henceforth be dealt with as though an expropriation properly socalled was involved.
Calvo Clause Rejected.
In the past, there were attempts to limit the ability of a state to give
diplomatic protection to its nationals. An example of this is the “Calvo clause, ” a
provision in a contract to the effect that “under no condition shall the intervention
of foreign diplomatic agents in any matter related to the contract” be resorted to.
This was rejected in North American Dredging Company Claim (1926) by the
Mexico-United States General Claims Commission. The right to seek redress is a
sovereign prerogative of a state and a private individual has no right to waive the
state’s right.
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247
Expropriation of Alien Property.
Expropriation is the taking of property by the state. The property can be
tangible or intangible as in the case of valuable contractual rights. Expropriation
can be an international wrong if it is done contrary to the principles of
international law. What are these principles?
The principles may be drawn from a 1962 UN General Assembly
Resolution on the Sovereignty over Natural Resources which states, among others,
that the expropriation “shall be based on grounds or reasons of public utility,
security or the national inters which are recognized as overriding purely individual
or private interests, both domestic and foreign. In such cases the owner shall be
paid appropriate compensation in accordance with the rules in force in the state
taking such measures in the exercise of its sovereignty and in accordance with
international law.”
The rule thus recognizes the power of eminent domain as an inherent power
of sovereignty. The rule conforms with the constitutional principles of public use
and just compensation. But international case law on the subject, generally
between developed and developing countries, is not without disputations.
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INTERNATIONAL HUMAN RIGHTS LAW
From Alien Rights to Human Rights.
Early concern about human rights was about specific classes of peoples,
e.g., slaves, minorities, and certain nationalities. It was not until the birth of the
United Nations that human rights of all people became the subject of legislation.
Thus, the developing doctrine on the subject is antedated by the doctrines on
humanitarian intervention, state responsibility for injury to aliens, protection of
minorities, League of Nation’s Mandates and Minorities Systems, and
international humanitarian law (which is the human rights law in time of war).
Human rights, in general terms, are those inalienable and fundamental
rights which are essential for life as human beings. But there is no agreement as to
what these rights are. In fact, there are those who are of the view that the very
widespread offences against human integrity and dignity are evidence that argue
against the existence of human rights principles in international law. This is a
profoundly negative view that must be rejected as a justification for barbarity.
There is a connection between human rights on the one hand and ethics and
morality on the other. A distinction can perhaps be made between what are
considered human rights precepts and the differing justification for the existence
of such precepts. As Jacques Maritain wrote in 1949, “I am quite certain that my
way of justifying belief in the rights of man and the ideal of liberty, equality,
fraternity is the only way with a firm foundation in truth. This does not prevent me
from being in agreement on these practical convictions with people who are
certain that their way of justifying them, entirely different from mine or opposed
to mine,... is equally the only way founded upon truth.”
Asian thinkers claim that much of what are called human rights are Western
concepts alien to Asian culture. Nevertheless the common
248
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INTERNATIONAL HUMAN RIGHTS LAW
249
denominator between Asian and Western view so far is the belief that the
individual must be protected and that the international community must contribute
to the protection, even if between the two views there might be differing
emphases: emphasis on the individual in the western (read American) outlook and
emphasis on the community in what is called “Confucian.”
In general the Western tradition has developed from the Natural Law view
that certain rights exist as a result of a law higher than positive or man-made law.
And this higher law itself flows from the nature of man which demands certain
immunities or liberties. This view flourished in the seventeenth century and
provided a recourse against arbitrary power. Much of what the Natural Law view
held has already become part of customary or conventional law and has served as
a counterforce against a positivist emphasis on the importance of the state.
Literature now speaks of three generations of human rights. The first
generation consists of the traditional civil and fundamental rights; the second
generation, social and economic rights; third generation, right to peace, clean
environment, self-determination, common heritage of mankind, development,
minority rights. However, there is dispute about the cultural in human rights.
An Emerging International Bill of Human Rights.
The immediate impetus for this development was the atrocities committed
by the regime under Adolf Hitler. What distinguishes post- World War II
developments from earlier human rights tradition is the growing acceptance of the
view that the way nations treat people under their jurisdiction is no longer just a
domestic concern but also one that calls for the attention of the international
community. This view represents a chipping away at the old concept of
sovereignty. It recognizes that individuals can be subjects of international law and
that they can find protection and remedies within the international community
against abuses by their own government.
The United Nations became the cradle for the development of the new
international law on human rights. But the U.N. Charter’s own provisions on
human rights were preliminary. They did not make human rights law but they
represented a beginning which later would develop into international law.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
The Charter’s Preamble set down a fundamental premise: “faith in
fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women.” Its human rights goal was set down in Article
1(3):
To achieve international co-operation in solving international
problems of an economic, social, cultural, or humanitarian character,
and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex,
language, or religion.
The achievement of these purposes was something to be worked
for.
The obligations assumed by the Organization and its Members are listed in
two key articles:
Article 55
With a view to the creation of conditions of stability and well
being which are necessary for peaceful and friendly relations among
nations based on respect for the principles of equal rights and selfdetermination of peoples, the United Nations shall promote:
(a) Higher standards of living, full employment, and
conditions of economic and social progress and development;
(b) Solutions of international economic, social, health, and
related problems; and international cultural and educational
cooperation; and
(c) Universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as to race, sex,
language, or religion.
Article 56
All Members pledge themselves to take joint and separate
action in co-operation with the Organization for the achievement of
the purposes set forth in Article 55.
As is obvious, there are here no definitions of human rights, there is no clear
commitment of Members to avoid violations, and there is set down no instrument
for the correction or vindication of violations of human rights that might occur. In
fact, the sensitivity of nations to their sovereignty is reflected in Article 2(7) of the
U.N. Charter:
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251
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 VII.
It is also clear, however, that the Charter itself recognized the inadequacy of
the document; hence, through Article 62(2) it authorized the UN Social and
Economic Council (ECOSOC) to “make recommendations for the purpose of
promoting respect for, and the observance of, human rights and fundamental
freedoms for all” and commanded it, through Article 68, largely through the
intervention of American non-governmental organizations, to “set up commissions
in economic and social fields and for the promotion of human rights.”1
Vague as all these were, however, they not only marked the internationalization of human rights but they also set in motion the gradual process of
legislating international human rights law. The first significant milestone in this
process was the promulgation of the Universal Declaration of Human Rights.
The Universal Declaration, after many intricate delays,2 was adopted and
proclaimed by the General Assembly on December 10, 1948. It was, however, not
seen as law but only as “a common standard” for nations to attempt to reach. Its
authority was primarily moral and political.3 It would take another eighteen years
before the United Nations could convert the aspirations of the Declaration into
conventional international law embodied in the International Covenant on Civil
and Political Rights, the International Covenant on Economic, Social and Cultural
Rights and the Optional Protocol to the Covenant on Civil and Political Rights.4
'John P. Humphrey, “THE UNIVERSAL DECLARATION OF HUMAN RIGHTS : ITS HISTORY, IMPACT AND JURIDICAL CHARACTER," in B.D.
RAMCHARAN, Ed., HUMAN RIGHTS: THIRTY YEARS AFTER THE UNIVERSAL DECLARATION 21
(1979).
2
See id. 21-28.
See id. 28-37.
4
For a detailed history of the formulation of these Covenants, SEE Vratislav Pechota, "THE DEVELOPMENT OF THE
COVENANT ON CIVIL AND POLITICAL RIGHTS " in L. Hbnkin, Ed., THE INTERNATIONAL BILL OF RIGHTS 32-71 (1981).
3
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
There is an important distinction between a mere declaration and a
covenant. As Vratislav Pechota puts it:5
... [a]t the core of an international covenant lies a meeting of
minds of the contracting parties on the specific duties and obligations
they intend to assume, and the agreement that the undertakings must
be effectively performed. A declaration by contrast admits the
presumption that something less than full effectiveness in terms of
law is intended. A covenant leaves no doubt about the legal nature of
the provisions it contains, whereas a declaration is often deemed to
enunciate moral rules only. Moreover, the vinculum juris created by a
covenant generally absent from a declaration, places a duty on the
contracting parties to bring their laws and practices into accord with
the accepted international obligations and not to introduce new laws
or practices which would be at variance with such obligations.
The Covenant on Civil and Political Rights.6
The substantive rights that are treated in the Covenant on Civil and Political
Rights are found in Articles 1, and 6 to 27.
Life, liberty and property, and equality.
The Covenant’s basic provision on the right to life in Article 6(1) and its
provision on genocide Article 6(4) and the general guarantee of liberty in Article
9( 1) do not go beyond what Article III, Section 1 of the Philippine Bill of Rights
guarantees. The Covenant, moreover, does not say when protected life begins,
whereas the Philippines protects “the life of the unborn from conception.”7
Significantly, too, there is no provision on the right to property in the
Covenant, this in spite of the fact that a provision exists in Article 17(1) in the
Universal Declaration. Pechota explains the absence from the Covenant thus:
“While no one in the Commission questioned the right itself, there were
considerable differences of opinion as to the restrictions to which it should be
subject. At a time when property rights had lost much of their previous sanctity, it
was inevitable that the
5
Id. at 35.
6
Adopted December 16,1966; entered into force March 23,1976.
’Supra,note 27 at 44.
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253
Commission would find it difficult to draft a text that would command general
acceptance.”
On the right to life, the Covenant’s Article 6(2) expresses a bias for the
abolition of the death penalty and allows its imposition, in countries which still
have a death penalty, only after conviction for the most serious crimes. But the
Covenant does not stop there. In Article 6(6) it says: “Nothing in this article shall
be invoked to delay or to prevent the abolition of capital punishment by any State
Party to the present Covenant.” In fact, in the Second Optional Protocol to the
Covenant, which was signed at the General Assembly meeting on December 15,
1989, but which has not yet come into force, Article 1 says: “(1) No one within the
jurisdiction of a State Party to the present Protocol shall be executed. (2) Each
State Party shall take all necessary measures to abolish the death penalty within its
jurisdiction.”
The Philippines is not yet party to the Second Protocol although it signed on
September 20,2006. The 1987 Constitution prohibited the imposition of the death
penalty unless a new law is passed imposing death for “heinous crimes.”8
Congress first restored the death penalty for heinous crimes but Republic Act No.
9346 has since disallowed it.
On the more detailed aspects of physical liberty, and arrests and detention
found in Articles 8,9 and 11 of the Covenant, these are more than adequately
covered by corresponding provisions of the Bill of Rights.9
Similarly, the rights of an accused detailed in Articles 14 and 15 of the
Covenant have long been parts of the Philippine accusatory system as found in the
Constitution.10 But the Covenant, in Article 14, is more restrictive in the matter of
publicity of criminal proceedings “where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes or the guardianship of
children.” Such standards would not easily pass the Philippine tests for publicity
and free press."
8
Article III, Section 19(1).
’Article III, Sections 2,12,15 and
‘“Article III, Sections 14 to 17.
"Article III, Section 4.
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There are, however, two provisions on compensation in the Covenant which
should be looked into. Article 9(5) says: “Anyone who has been a victim of
unlawful arrest or detention shall have an enforceable right to compensation,” and
Article 14(6) says that a person who has been a victim of miscarriage of justice
“shall be compensated according to law, unless it is proved that the non-disclosure
of the unknown fact in time is wholly or partly attributable to him.” The only
place where the Philippine Constitution asks for compensation is in Section 12(4)
of the Bill of Rights where the legislature is asked to compensate violations of
rights of a person under investigation.
The guarantee of equality is found in Article 26 of the Covenant. It is the
Bill of Rights’ more terse “equal protection” clause in Article III, Section 1. The
guarantee is of legal equality. It does not embody the aspiration towards lesser
material inequality. The latter is material found in the Covenant on Economic,
Social and Cultural Rights.
Torture, ill-treatment and prison conditions
The Covenant’s proscription of torture and other forms of ill- treatment that
offend not only against bodily integrity but also against personal dignity and the
requirement of humane prison conditions are found in Articles 7 and 10.
While adequate prison conditions are guaranteed by Section 19(2) of the
Bill of Rights, the fact, however, is that prison conditions in the Philippines today
are far from adequate. It should be noted that the UN Human Rights Commission
has expressed the view that imprisonment “in conditions seriously detrimental to a
prisoner’s health” constitutes violation of Articles 7 and 10(1) of the Covenant.12
Freedom of Movement
The Covenant in its Article 12(1) and (2) group together the rights to travel
within the country, the right to leave the country and the right to change one’s
residence. The limitations on these three rights are enumerated in Article 12(3):
“those which are provided by law, are necessary to protect national security,
public order (ordre public), public
l2
RIGHTS 171
Ambrosini, et al. v. Uruguay, (R. 1/15) HRC 34, 124, cited in P. Sieghart, THE INTERNATIONAL LAW OF HUMAN
(1983).
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255
health or morals or the rights and freedoms of others, and are consistent with the
other rights in the present Covenant.” They are similar to the limitations found in
the Philippine Bill of Rights except for the fact that, unlike the Philippine
provision, it does not require a court order for impairment of liberty of abode.
Unlike the Philippine provision, which speaks only of the right to travel
without distinction as to whether it is travel within the country or travel from or to
the country, the Covenant in Article 12(4) separates the right to return to one’s
country from the right to leave one’s country. The limit to the right to return to
one’s country in the Covenant is implied in the word “arbitrarily:” “No one shall
be arbitrarily deprived of the right to enter his own country.” The intention of the
Covenant in separating this right would seem to be to make the limitation more
narrow than for the right to leave the country especially since exile is now
prohibited by customary law and the prohibition of exile may even be jus cogens.
It is also noteworthy that the Inter-American Commission of Human Rights has
expressed the opinion that domestic laws which prevent exiled individuals from
returning to their country run counter to Article 12 of the Covenant.'3
The Philippine Supreme Court, however, in the case on the return of
Ferdinand Marcos after his involuntary exile, arrived at a different conclusion. The
Court argued that since the Declaration of Human Rights and the Covenant on
Human Rights separate the right to leave the country from the right to return to
one’s country, the two rights are distinct and the right to return to one’s country is
not guaranteed by the specific guarantees for the right to travel and liberty of
abode and that therefore President Marcos could not appeal to Section 6 of the Bill
of Rights. The vote, however, was a reluctant and embarrassed 8 to 7, and the
decision was prefaced thus: “This case is unique. It should not create a precedent,
for the case of a dictator forced out of office and into exile after causing twenty
years of political, economic and social havoc in the country and who within the
short space of three years seeks to return, is in a class by itself.”14
13
Paul Sieghart, THE INTERNATIONAL LAW OF HUMAN RIGHTS 184-185
l4
(1983).
Marcos v. Manglapus,et al.,G.R. No. 88211, September 15,1989. Justice Cortes said that “the right to
return to one’s country, a totally distinct right under international law, independent from although related to the
right to travel” was “not among the rights specifically guaranteed in the Bill of Rights.” Human rights
advocates would normally appeal to the Universal Declaration
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Related to freedom of movement is the right of aliens not to be expelled
without due process from a territory. This is guaranteed in Article 13 of the
Covenant.
Legal personality, privacy and the family
The right to be recognized as a person before the law is guaranteed in
Article 16 of the Covenant. One must distinguish, however, between “having a
legal personality” and “having a capacity to act.” The first belongs to all, whether
citizens or aliens; the second may not be available to some by reason, for instance
of infancy, minority, or insanity. The guarantee in its fullness means that state
parties must “treat every human being everywhere, male or female, young or old,
alien or citizen, as a person before the law, enjoying the protection of the law and
of the forces of the law, with power to have rights and assume obligations: to own,
acquire, and dispose of property; to make contracts; to sue and be sued; and to
invoke other legal remedies.”15 There is no similar specific guarantee in the
Constitution; but that it is presumed to exist runs through the entire document.
But when does one become a person? The Covenant does not say. The
Philippine Constitution protects “the life of the unborn from conception;”16 but it
does not say that the unborn is a person. The Civil Code, however, says that for
purposes beneficial to him the unborn is considered a person.
Article 17 of the Covenant protects “privacy, family, home or
correspondence” as well as honour and reputation.”
Articles 23 and 24 of the Covenant contain detailed provisions on the rights
of the family and of children. These either are covered by Article XV on the
Family in the Constitution or are so fundamental that Philippine law takes them
for granted.
of Human Rights and to the International Covenant on Civil and Political Rights in order to seek additional
support for the protection given by a specific country’s constitution. Justice Cortes does the opposite. She uses
the Declaration and the Covenant to weaken the Philippine Bill of Rights.
’’Fernando Volio, “LEGAL PERSONALITY, PRIVACY, AND THE FAMILY" in HENKIN, supra, note
4, at 187-188.
'‘Article II, Section 12.
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257
Thought, conscience, religion, expression and political freedoms
Article 18 of the Covenant guarantees “freedom of thought, conscience, and
religion.” The limits on external exercise found in the Covenant — “to protect
public safety, order, health, or morals or the fundamental rights of others” — if
interpreted broadly can dilute the freedom and thus come into conflict with the
very narrow limits allowed by the preferred position which free exercise occupies
in the Bill of Rights. The Covenant contains explicit protection of the right of
parents in the matter of religion for their children.
Notably, however, an established religion is not incompatible with the
Covenant.
Article 19 of the Covenant guarantees freedom of expression and Article 21
protects the right of assembly and petition. They do not go beyond our
Constitution’s own guarantees on the same subject. However, the Covenant’s
Article 20 which prohibits “propaganda for war” can come into conflict with our
Constitution’s freedom of expression.
The guarantee of political freedom in the Covenant’s Article 25 is also
written all over the Philippine Constitution.
Associations and unions
Article 22 of the Covenant has a detailed set of provisions protecting the
right to form associations and unions. The Covenant is silent about the right of
government employees to form unions; the Constitution is explicit in the assertion
of the right.
Minorities
Article 27 guarantees “ethnic, religious or linguistic minorities” the right “to
enjoy their own culture, to profess and practice their own religion, or to use their
own language.” This is one of the few rights which was already the subject of
earlier treaties such as the Treaty of Versailles of 1919 and the Polish-German
Upper Silesia Treaty of 1922.17 It is a right which is very central to the current
conflicts in Eastern Europe.
'’Sieohart, supra, note 14, at 377.
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The concern for minorities has a two-fold aspect. The first is the fear of “a
secessionist movement by minorities, threatening territorial integrity of the state,
or about the danger of interference by other states with which the minorities are
connected by ties of race, national origin, language, or religion.” The second is a
genuine “concern for the human rights of minorities” and the desire “that
minorities will flourish so as to preserve that diversity of the human race, which,
since the beginning of mankind, has provided a motive power for the development
of civilization and culture by weaving many strands into a single multi-colored
tapestry.”18
Self-determination of peoples
Related to but broader than the right of minorities is the right of selfdetermination of peoples. This is treated in Article 1 of the Covenant. It has an
interesting history and is of continuing relevance to dramatic developments that
have happened within the past decade.
The proposal made by the USSR on the subject was to recognize the right of
self-determination of peoples under colonial domination. But others pushed for the
inclusion of self-determination “for peoples oppressed by despotic governments,
peoples under alien domination, and peoples of multi-national states deprived of
self-determination by the central authorities.”19 Article 1 now covers all of the
above.
Self-determination covers two important rights: the right “freely to
determine their political status and freely pursue their economic, social and
cultural development” and the right “for their own ends, [to] freely dispose of the
natural wealth and resources without prejudice to any obligations arising out of
international cooperation, based upon the principle of mutual benefit, and
international law.”
Since the adoption of the Covenant, there have been at least two significant
developments. On December 14, 1960, the General Assembly adopted the
Declaration on the Granting of Independence to Colonial Countries and Peoples,
and on December 14,1962, it adopted the Resolution on Permanent Sovereignty
over Natural Resources. But two questions remain: Who are “peoples” within the
meaning of the
"Louis B. Sohn, “THE RIGHTS OF MINORITIES" in L. Henkin, Ed. supra, note 4, at 270-271.
19
Antonio Cassese, “THE SELF-DETERMINATION OF PEOPLES " in
L. Henkin, id., at 92.
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259
Covenant? And, since self-determination is now a legal right, what does the legal
right include?
Certainly “peoples” include those ruled by colonial powers; but under
present circumstances this is now of limited significance. “Peoples” also mean
those who form a component part of a multinational state.
On the other hand, minorities as such, for which the Covenant has Article
27, does not have a right of self-determination in the sense of the right to secede.
Even the penultimate article of the 1960 Declaration on the Granting of
Independence says: “Any attempt aimed at the partial or total disruption of the
national unity and territorial integrity of a country is incompatible with purposes
and principles of the Charter of the United Nations.”20
Self-determination has an internal and an external aspect. The internal right
of self determination consists of the elements enumerated in the first two
paragraphs of Article 1: the right “freely to determine their political status and
freely pursue their economic, social and cultural development” and the right, “for
their own ends, [to] freely dispose of the natural wealth and resources without
prejudice to any obligations arising out of international cooperation, based upon
the principle of mutual benefit, and international law.” These also necessarily
include the other related political rights.
The external right of self-determination belongs to colonies and to those
enumerated in the third paragraph: “non-self-governing and Trust Territories.”
Optional Protocol on the Covenant on Civil and Political Rights.
As a supplement to the Covenant on Civil and Political Rights, the United
Nations adopted the Protocol to the Covenant on December 16, 1966. The
Protocol entered into force on March 23,1976. The Philippines has ratified the
Protocol.
This separate treaty is designed to enable private parties who are victims of
human rights violations. But complaints may be filed only
”W. at 96; John P. Humphrey, "POLITICAL AND RELATED RIGHTS” in T. Meron, Ed., HUMAN RIGHTS IN
INTERNATIONAL LAW 195-196 (1985).
260
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
against states which have ratified the Protocol. An eighteen-member Human
Rights Committee created by the Covenant receives and handles the complaints.21
The Covenant on Economic, Social and Cultural Rights.22
The Covenant on Civil and Political Rights and the Covenant on Economic
and Social and Cultural Rights were adopted on the same day. But why two
separate documents?
The reasons for the division are both ideological and practical.
Ideologically, the contest was between Western countries on the one hand and
socialist and Third World countries on the other. The American delegation, for
instance, argued that its government would find difficulty in accepting a treaty
containing economic and cultural rights beyond those guaranteed by the
Constitution. For the socialist and Third World countries, on the other hand, the
absence of economic, social and cultural guarantees could render civil and
political guarantees meaningless. On the practical level, however, it became
obvious that implementing civil and political guarantees, the classical “Thou shalt
nots” of the Western tradition, could be done immediately; whereas the
implementation of economic, social and cultural rights could only be done
gradually and dependently on development conditions. In the end, the decision to
divide, which would at least assure approval of a document on civil and political
rights, prevailed. But significantly, Article 1 of both Covenants say exactly the
same thing about the right of self-determination of people. Moreover, there are
substantial overlappings on other subjects of the Covenants.
The rights specific to the Covenant on Economic, Social and Cultural
Rights are social welfare rights stated in detail. They include: the right to work
(Article 6), to favorable conditions of work (Article 7),
2l
For a discussion of the Protocol, the United Nations 1503 Procedure and other related implementing
instruments, see Dinah L. Shelton, “Individual Complaint Machinery under the United Nations 1503 Procedure
and the Optional Protocol to the International Covenant on Civil and Political Rights” in H. Hannum ed., GUIDE TO
INTERNATIONAL HUMAN RIGHTS PRACTICE (1984) 59- 73; Louis B. Sohn , “HUMAN RIGHTS: THEIR IMPLEMENTATION AND SUPERVISION BY THE
UNITED NATIONS ” in T. meron, supra, note 60 at 369-394; A.H. Robertson, “THE IMPLEMENTATION SYSTEM: INTERNATIONAL MEASURES”
in L. Henkin, supra, note 27, at 3322-370. Adopted December 16, 1966; entered into force January 1976.
“Adopted December 16, 1966; entered into force January 1976.4 Pechota, supra, note 27, at 41-43;
David M. Trubek, “Economic, Social, and Cultural Rights in the Third World” in T. MERON, Ed., supra, note
22, at 210-212.
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261
to form free trade unions (Articles 8), to social security and insurance (Article 9),
to special assistance for families (Article 10), to adequate standard of living
(Article 11), to the highest standard of physical and mental health (Article 12), to
education including compulsory primary education (Articles 13 and 14), and to
the enjoyment of cultural and scientific benefits and international contacts (Article
15).
These correspond to the economic, social and cultural rights that are also
found in the Constitution, principally Article XIII (Social Justice), Article XIV
(Education, Science and Technology, Arts, Culture, and Sports), and Article XV
(The Family).
The Duty to Implement.
The Philippines is a party not only to the United Nations Charter and the
Universal Declaration of Human Rights but also to the two Covenants as well as
to the Optional Protocol to the Covenant on Civil and Political Rights. The nation
is therefore bound, both internally and in its foreign relations, “to bring [its] laws
and practices into accord with the accepted international obligations and not to
introduce new laws or practices which would be at variance with such
obligations.” As Article 2 of the Covenant on Civil and Political Rights says:
1.
Each State Party to this present Covenant undertakes to respect
and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religious,
political or other opinion, national or social origin, property, birth or other
status.
2.
Where not already provided for by existing legislative or other
measure, each State Party to the present Covenant undertakes to take the
necessary steps, in accordance with its constitutional processes and with the
provisions of the present Covenant, to adopt such legislative or other
measures as may be necessary to give effect recognized in the present
Covenant.
3.
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as
herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by any person
acting in an official capacity;
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
(b) To ensure that any person claiming such a remedy shall
have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce
such remedies when granted.
As already noted, treaty commitments become part of domestic law. The
self-executing provisions of the Covenants therefore must be implemented in
domestic law. Those which are not self-executing must be attended to by
“necessary steps, in accordance with its constitutional processes and with the
provisions of the present Covenant.” This may be either by legislative or by
executive measures.
The implementation of the provisions of the Covenant on Economic, Social
and Cultural rights follows a pattern of its own. Article 2 says in part:
1.
Each State Party to the present Covenant undertakes to take
steps, individually and through international assistance and cooperation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.
What governs therefore is the principle of “progressive realization” which
means “that a state is obligated to undertake a program of activities . . . and to
realize those rights which are ‘recognized’ by the Economic Covenant. While the
obligation of progressive realization is limited by resource constraints, the
Economic Covenant indicates that priority should be given to social welfare and
that the level of effort should increase over time. These obligations apply to any
state that has ratified the Economic Covenant, regardless of that state’s economic
resources.”
Beyond the domestic obligations, however, and more relevantly for this
essay, is the international obligation. In the economic and social fields, the key
words are “cooperation” and “assistance.” “The effort to provide international
protection for economic/social rights on the global level proceeds along many
lines and involves actions of various kinds
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263
on behalf of these rights. The framework for this effort is the United Nations
system, with its central organization, loosely coordinated network of specialized
agencies, and growing body of covenants and conventions relevant to this area of
human experience.”23 In the civil and political field, this involves participation in
the implementation measures of the United Nations system.24
Other Conventions on Human Rights.
There have been other conventions intended for the protection of human
rights. Among these are the 1948 Genocide Convention, the 1966 Convention on
the Elimination of All Forms of Racial Discrimination, the 1979 Convention on
the Elimination of All Forms of Discrimination Against Women, the 1984
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, the 1989 Convention on the Rights of the Child, and the 1990
Convention on Migrants Workers.
The different regional conventions on human rights have their own
procedure for implementation.
Customary human rights law.
It can also be said that some human rights principles have become
customary law in the light of state practice. This would include the prohibition of
torture, genocide, slavery and the prohibition of discrimination.
International Implementation of Human Rights Law.
Each country has the obligation to implement human rights law within its
jurisdiction. It can be done, where proper, through municipal courts such as what
happened in the Pena Irala case. There now exist also regional courts with
jurisdiction over human rights violations. In addition to these, the United Nations
itself has a system for implementation.
An important UN body is the Human Rights Commission, a subsidiary
organ of ECOSOC. There are two different procedures used
23
AGLEN MOWER, JR., International Cooperation for Social Justice 7 (1985).
24
See Pedro Roman Ariston, “TAKING THE MOST SERIOUS CRIMES OF INTERNATIONAL CONCERN SERIOUSLY, ” Unpublished Juris Doctor
Thesis presented to the Ateneo de Manila Law School, 2002.
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by the Commission for responding to violations of human rights. These are (1)
confidential consideration under ECOSOC Resolution 1503 and (2) public debate
procedure under ECOSOC Resolution 1235. Both of these may be supplemented
by the designation of a “thematic rapporteur” or Working Group to study
violations of a specific character, e.g., torture, disappearance or arbitrary
detention. There is overlapping between the two procedures.
The 1503 Procedure or confidential procedure
Resolution 1503 authorizes the Sub-Commission on Prevention of
Discrimination and Protection of Minorities to appoint a working group consisting
of not more than five members to meet once a year in private meetings to consider
all communications, including replies of the governments concerned, with a view
to bringing to the attention of the Sub-Commission those communications which
appear to reveal a pattern of gross and reliably attested violations of human rights.
The confidential findings of the Sub-Commission are brought to the attention of
the Commission on Human rights. The Commission on Human Rights in turn is
expected to submit its report and recommendation to the Economic and Social
Council. The procedure is kept confidential until such time as the Commission on
Human Rights decides to make recommendation to the ECOSOC.
Although the procedure is kept confidential, findings invariably find their
way into media. Reports have touched such countries as Uruguay, Argentina, the
Philippines and other countries.
The 1235 Procedure
This Commission on Human Rights was established in 1946 as a subsidiary
organ of ECOSOC. For its first twenty years, it took the view that it had no
authority to take any action with regard to reported violations of human rights. A
significant change took place in 1967 through ECOSOC Resolution 1235,
antedating Resolution 1503. The Resolution authorized the Commission and its
Subsidiary Commission on Prevention of Discrimination and Protection of
Minorities to examine reports relevant to gross violations of human rights and to
examine whether the violations revealed a consistent pattern and thereafter make
recommendations to ECOSOC. Originally, the function referred to situation in
South Africa, but it soon included situations in Chile, Afghanistan, Cuba, El
Salvador, Guatemala, Iran and Iraq.
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265
As the procedure now operates, it carries out two types of activities. First, it
holds annual public debates in which governments and NGOs are given the
opportunity to identify publicly country specific situations which deserve
attention. This is thus different from the confidential process under 1503. In fact,
subjects taken up under 1503 can find their way to 1235. Second, it engages in
studies and investigations of particular situations through the use of various
techniques the Commission might deem appropriate.
What can result from these procedures? Various things can follow:
embarrassment of countries referred that might generate change in policy; pressure
on governments to take the issue on a bilateral or multilateral level; statements of
exhortation from the Commission or call from the Commission for all available
information; the Commission might appoint a Special Rapporteur to examine and
submit a report on the issue; the Commission might ask the Security Council to
take up the issue with a view to promulgating sanctions.
Aside from the procedures under Resolutions 1503 and 1235, there are other
specialized agencies which attend to specific human rights problems.
The International Criminal Court.23
A significant development in the protection of human rights is the
International Criminal Court created by the 1998 Rome Statute. The treaty came
into force in April 2002 when the 60th country needed to establish the
International Criminal Court submitted its ratification. However, although nearly
all the world’s democracy support the court, the United States continues to refuse
ratification. Nor has the Philippine government ratified the Rome Treaty as of this
writing.
What is the significance of the establishment of the International Criminal
Court? Hitherto, international crimes were prosecuted in ad hoc criminal courts.
Such were the Nuremberg and the Tokyo tribunals after World War II, and more
recently, the tribunals for Rwanda and the former Yugoslavia. These earlier
tribunals were undermined and weakened by the charges of politically motivated
investigations and
a
See A. H. Robertson, “THE IMPLEMENTATION SYSTEM: INTERNATIONAL MEASURES” in L. HENKIN, supra, note 4, at 332-
369.
266
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
selective justice. Unlike the temporary tribunals, the new court will has been
established without any specific country in mind. Thus, besides enjoying
permanency, it will begin with the virtue of neutrality so necessary for fairness.
Gradually too, the court will be able to establish precedents.
The goal of the court, moreover, is to demand individual and not collective
accountability. It will therefore shift the stigma of guilt away from the collectivity
and will thereby help facilitate reconciliation by avoiding condemnation of entire
societies. For these and other reasons some have considered its establishment “the
single most important international institutional advance since the founding of the
United Nations more than a half century ago.”
How will the court work? It will not function as an all purpose court. Its
jurisdiction will be limited to the most serious international crimes: genocide,
crimes against humanity, war crimes, and the crime of aggression. These crimes
are carefully defined in the treaty.
An important feature of the court is the principle of complementarity. The
court is meant to be a court of last resort. It normally must await referral of a crime
either by a state party or by the Security Council. The court is not allowed to act
when the local judicial system is able and willing to prosecute. Once a state has
taken the initiative to investigate a crime, even if it ultimately decides that there is
no reason to proceed, the international court cannot intervene. The international
court is not intended to supplant the functioning of military and civilian tribunals
in national judicial systems. However, if a state intentionally tries to avoid its
international obligation by shielding a criminal from responsibility, the court may
come in.
As can be seen, because of the principle of complementarity, the effective
functioning of the court will depend very much on the cooperation of state parties.
The domestic criminalization of the acts enumerated as serious crimes in the treaty
will still have to be made by the state. In our jurisdiction, customary international
law becomes domestic law by incorporation. Incorportion is achieved either
through the constitutional provision which says that the general principles of
international law are part of the law of the land or by treaty ratification. However,
there is persuasive authority saying that treaties which criminalize certain acts are
not self-executing.
Chapter 13
PEACEFUL SETTLEMENT OF INTERNATIONAL
DISPUTES
The meaning of international “dispute.”
Not every disagreement is a “dispute.” A dispute in international law is a
technical term which means “a disagreement on a point of law or fact, a conflict of
legal views or interests between two persons.” A disagreement does not amount to
a dispute if its resolution would have no practical effect on the relationship
between the parties. Examples of a dispute are: disagreements over the
interpretation of a treaty or about state boundaries or about state responsibility.
Article 2, paragraph 3 of the UN. Charter says: “All members shall settle
their international disputes by peaceful means in such a manner that international
peace and security, and justice, are not endangered.”
There is no general obligation to settle disputes, except perhaps those which
according to Article 33, might endanger peace and security. But if a decision is
made to settle disputes, the obligation is to settle them by peaceful means.
Peaceful methods of settling disputes.
The key provisions in the UN Charter are the following:
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 arrangements, 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.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
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 recommendations 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 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.
The peaceful means of settling disputes mentioned in the Charter may be
classified into: (a) non-judicial methods [negotiation, enquiry, mediation,
conciliation]; (b) quasi-judicial method [arbitration]; and (c) judicial method.
Another way of classifying them is into diplomatic and judicial methods.
Non-judicial or diplomatic methods.
Negotiation
States are generally hesitant to submit their disputes to an adjudicatory
body. For this reason, negotiation is a preferred vehicle. There
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269
are no set rules for negotiation. It may take place at arm’s length or face to face.
But for a negotiated settlement to be legally binding, the parties must agree to it.
The agreement to negotiate may be formalized in a treaty or in a simple exchange
of notes.
A preliminary step to negotiation might be “good offices" when a neutral
third party tries to bring two disputants together. Having been brought together,
the usual first step, often required before judicial settlement, is negotiation. It may
be carried out by diplomatic correspondence, face-to-face dialogue between
permanent envoys or by designated negotiators. Essentially, negotiation is a giveand-take process of looking for a win-win solution.
Mediation
Mediation involves assistance by third parties who either act as bridge
between parties, who do not meet, or who may sit with the disputants to chair
meetings, suggest solutions, cajole, etc. The mediator must be approved by both
parties.
Inquiry
Inquiry is fact-finding done by a designated group of individuals or an
institution. When undertaken with the consent of the parties, it frequently resolves
disputes based solely on questions of fact.
Conciliation
Conciliation is a more formal technique whereby the parties agree to refer
controversies to an individual, a group of individuals or an institution to make
findings of fact and recommendations. As a rule, parties do not agree to be bound
by recommendations. But this clears the air.
Quasi-judicial method.
Arbitration
Arbitration is the binding settlement of a dispute on the basis of law by a
non-permanent body designated by the parties. The composition, the jurisdiction
and the rules of procedure to be applied are agreed upon by the parties in a
compromis d’arbitrage. States cannot be required to submit to arbitration unless
there is a previous agreement making arbitration compulsory.
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What mainly distinguishes arbitration from judicial settlement is that parties
have a greater say in deciding, for instance, the law to be applied and the
composition of the arbitral tribunal. The process thereby becomes more flexible.
There are at least three types of arbitral agreements. The first is an
arbitration clause that is incorporated as part of a treaty. This is commonly found
in commercial treaties. The second type of agreement are treaties whose sole
function is to establish methods for the arbitration of disputes. E.g., The Hague
Convention for the Pacific Settlement of Disputes. The third type are ad-hoc
arbitral agreements. E.g., the agreement for the settlement of claims between the
US and Iran (1981).
Arbitral awards have made significant contribution to the development of
international law. For instance, the arbitral award in the Las Palmas case
established an important precedent involving acquisition of territory and decisions
of the US-Mexican Claims Commission clarified various points on state
responsibility.
Arbitral decisions
Arbitral tribunals apply international law unless the parties specify that
some other law should be applied.
Under certain circumstances, arbitral decisions may be challenged. The four
most commonly accepted bases are: that the arbitral body exceeded its powers;
that there was corruption on the part of a member of the body; that there was
failure to state the reasons for the awards or a serious departure from a
fundamental rule of procedure; that the undertaking to arbitrate or the compromis
is a nullity.
Domestic courts, however, may refuse to give recognition to awards given
by foreign arbitral tribunals under grounds found in the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards which says:
(1) a court in a state party to the Convention may deny
recognition or enforcement to a foreign arbitral award if:
(a) the agreement to arbitrate was not valid under applicable
law;
(b) the party against which the award was rendered did not
receive proper notice of the proceedings or was otherwise not
afforded an opportunity to present its case;
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(c) the award deals with matters outside the terms of the
agreement to arbitrate;
(d) the constitution of the arbitral tribunal or the arbitral
procedure was contrary to the agreement of the parties or to the law of
the state where the arbitration took place; or
(e) the award has not yet become binding on the parties, or
has been suspended or set aside by a competent court in the state
where it was made.
(2) A court of a state party to the Convention may also deny
recognition or enforcement to a foreign arbitral award that meets the
requirements of § 487 if, under the law of that state:
(a) the subject matter of the controversy is not capable of
settlement by arbitration; or
(b) recognition or enforcement would be contrary to public
policy. (§488, Third Restatement.)
Judicial method: the International Court of Justice (ICJ).
The UN’s principal judicial organ is the International Court of Justice. It is
the successor to the Permanent Court of International Justice established by the
League of Nations. It came into being in 1945 through the Statute of the Court. All
members of the UN are ipso facto parties to the Statute of the International Court
of Justice. Being party to the Statute, however, does not mean acceptance of the
jurisdiction of the Court. It simply means that the state may accept the jurisdiction
of the court. The Statute opens the court’s door to member states. Only states may
be parties in the court.
The cardinal rule in international courts is that states cannot be compelled to
submit disputes to international adjudication unless they have consented to it
either before a dispute has arisen or thereafter. States are also free to limit their
acceptance to certain types of disputes and to attach various conditions or
reservations to their acceptance.
Composition of the Court.
Article 2.
The Court shall be composed of a body of independent judges, elected regardless of
their nationality from among persons
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of high moral character, who possess the qualifications required in
their respective countries for appointment to the highest judicial
offices, or are jurisconsults of recognized competence in international
law.
Article 3.
1. The Court shall consist of fifteen members, no two of
whom may be nationals of the same state.
2. A person who for the purposes of membership in the Court
could be regarded as a national of more than one state shall be
deemed to be a national of the one in which he ordinarily exercises
civil and political rights.
Article 26.
1. The Court may from time to time form one or more
chambers, composed of three or more judges as the Court may
determine, for dealing with particular categories of cases; for
example, labour cases and cases relating to transit and
communications.
2. The Court may at any time form a chamber for dealing
with a particular case. The number of judges to constitute such a
chamber shall be determined by the Court with the approval of the
parties.
3. Cases shall be heard and determined by the chambers
provided for in this article if the parties so request.
Article 27.
A judgment given by any of the chambers provided for in
Articles 26 and 29 shall be considered as rendered by the Court.
Article 31.
1. Judges of the nationality of each of the parties shall retain
their right to sit in the case before the Court.
2. If the Court includes upon the Bench a judge of the
nationality of one of the parties, any other party may choose a person
to sit as judge. Such person shall be chosen preferably from among
those persons who have been nominated as candidates as provided in
Articles 4 and 5.
3. If the Court includes upon the Bench no judge of the
nationality of the parties, each of these parties may proceed to choose
a judge as provided in paragraph 2 of this Article.
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4. The provisions of this Article shall apply to the case of
Articles 26 and 29. In such cases, the President shall request one or, if
necessary, two of the members of the Court forming the chamber to
give place to the members of the Court of the nationality of the parties
concerned, and, failing such, or if they are unable to be present, to the
judges specially chosen by the parties.
5. Should there be several parties in the same interest, they
shall, for the purpose of the preceding provisions, be reckoned as one
party only. Any doubt upon this point shall be settled by the decision
of the Court.
6. Judges chosen as laid down in paragraphs 2, 3, and 4 of
this Article shall fulfill the conditions required by Articles 2,
17 (paragraph 2), 20, and 24 of the present Statute. They shall take
part in the decision on terms of complete equality with their
colleagues.
Jurisdiction of the ICJ: Contentious jurisdiction.
The Court exercises two types of jurisdiction: contentious jurisdiction and
advisory jurisdiction. The principal rules on contentious jurisdiction are the
following:
Article 36.
1.
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.
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
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.
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4. Such declarations shall be deposited with the SecretaryGeneral of the United Nations, who shall transmit copies thereof to the
parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and which are still in force shall
be deemed, as between the parties to the present Statute, to be acceptances
of the compulsory jurisdiction of the International Court of Justice for the
period which they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of the Court.
From Article 36, the following should be noted: jurisdiction of the ICJ is
applicable only to disputes between states and disputes are settled by international
law and not by domestic law. But the Court has jurisdiction only when a case is
referred to it by the parties.
There are three ways through which states may accept jurisdiction of the
court. The first comes about on an ad hoc basis. This can happen when one party
applies unilaterally to the Court and this application is followed by consent by the
other state. A second way is when parties adhere to a treaty which accepts the
jurisdiction of the court on matters of interpretation or application of the treaty.
Finally, acceptance of jurisdiction can take place by a unilateral declaration that
recognition of jurisdiction in relation to any other state accepting the same
jurisdiction in all legal disputes. This last creates the optional system of submitting
to the jurisdiction of the Court.
The optional system is operative only for states that “at any time declare that
they recognize as compulsory ipso facto and without special agreement, in relation
to any other state accepting the same 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.” The
Declaration is deposited with the Secretary General.
The Declaration in the optional system “may be made unconditionally or on
condition of reciprocity on the part of several or certain states, or for a certain
time.” States therefore can limit the extent to which they are subjecting themselves
to the jurisdiction of
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the court. The significance of reciprocity in the matter of limitations was
enunciated by the Court in Interhandel Case:' “Reciprocity in the case of
Declarations accepting the compulsory jurisdiction of the Court enables a Party to
invoke a reservation to that acceptance which it has not expressed in its own
Declaration but which the other Party has expressed in its Declaration.” Thus, if a
party that has made a Declaration unconditionally is brought to court by another
that has made a Declaration with conditions, the former can invoke the conditions
in the latter’s Declaration.
The following are three cases illustrate the optional system.
AERIAL INCIDENCE CASE U.S. v. Bulgaria, ICJ 1959
The U.S. acceded to the optional clause, thereby accepting the
compulsory jurisdiction of the ICJ, in August 1946. During the
ratification process for that accession, however, Senator Connally
added a critical phrase to a U.S. reservation including “disputes with
regard to matters which are essentially within the domestic
jurisdiction of the United States of America as determined by the
United States of America.”
On July 27, 1955, an El Al Israel airliner was driven off course
by strong winds in very bad weather. The plane innocently crossed
over into Bulgarian air space. While trying to return to its authorized
course, the plane was shot down by Bulgarian military fighter planes.
All fifty-one passengers and seven crew members aboard were killed,
including six American nationals.
Investigators argued that the Bulgarian military failed to take
actions required by international civil aviation agreements involving
appropriate interception and identification of intruding aircraft.
The case was first brought to the ICJ by Israel. In that famous
case — the Aerial Incident of July 27,1955 (Israel v. Bulgaria, 1959
I.
CJ. Rep. 127) — the Court ruled that it did not have
jurisdiction on the grounds that Bulgaria’s acceptance of the optional
clause in the Statute of the Permanent Court of International Justice
(the PCU, precursor to the ICJ) did not carry over to acceptance of the
optional clause for the ICJ when Bulgaria joined the UN in
'Switzerland v. U.S., (1959) ICJ Rep.
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December 1955, since Bulgaria had not been an original party to the
UN Charter and the Statute of the ICJ.
The United States, however, pressed ahead with its claim.
On October 24, 1957, the U.S. applied to the ICJ for action
against Bulgaria based on the violations of international law and the
injuries to U.S. nationals. The U.S. asked Bulgaria for an award of
$257,875 in damages, plus interest.
Bulgaria then went on to make four objections.
Objection Two: Reciprocal invocation of the Connally
Amendment.
On the grounds of reciprocity and the consensual basis of ICJ
jurisdiction, Bulgaria invoked the Connally Amendment reservation
exempting from ICJ jurisdiction matters within its internal
competence. Bulgaria contended that its airspace security and antiaircraft defenses were within its domestic jurisdiction. The Bulgarian
government argued further that it “cannot admit that matters which it
rightfully determines as being essentially within its domestic
jurisdiction should be considered, directly or indirectly, before the
Court. It requests, accordingly, that the Court declare itself without
competence to adjudicate upon the application of the Government of
the United States.”
The United States withdrew its application from the Court’s
consideration. On May 30,1960, just one day before oral hearings
were to begin, the Court formally accepted that withdrawal, ending
the dispute.
NICARAGUA V. US
ICJ 1984
[The United States, made a Declaration in April 1984 limiting
its Optional Clause Declaration and claimed thereby that the Court
had no jurisdiction.]
On 14 August 1946, the United States made an Optional
Clause Declaration with a reservation which said that:
“this declaration shall remain in force for a period of five
years and thereafter until the expiration of six months after
notice may be given to terminate this declaration.”
On 6 April 1984, when it became clear that its dispute with
Nicaragua would be placed before the Court, the Government
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of the United States deposited with the Secretary-General of the
United Nations a notification signed by the Secretary of State, Mr.
George Shultz (hereinafter referred to as “the 1984 notification”),
referring to the declaration of 1946, and stating that:
“the aforesaid declaration shall not apply to disputes with any
Central American State or arising out of or related to events in
Central America, any of which disputes shall be settled in such
manner as the parties to them may agree.
“Notwithstanding the terms of the aforesaid declaration,
this proviso shall take effect immediately and shall remain in
force for two years, so as to foster the continuing regional
dispute settlement process which seeks a negotiated solution to
the interrelated political, economic and security problems of
Central America.”
In order to be able to rely upon the United States declaration of
1946 to found jurisdiction in the present case, Nicaragua has to show
that it was a “State accepting the same obligation” as the United
States within the meaning of Article 36, paragraph 2, of the Statute.
The Court found Nicaragua that it was a state accepting the same
obligation but on the basis of a declaration it made under the Statute
of the Permanent Court of International Justice. [Arguments towards
this conclusion omitted.]
Finding: the Court therefore finds that the Nicaraguan
declaration of 1929 is valid and that Nicaragua accordingly was, for
the purposes of Article 36, paragraph 2, of the Statute of the Court, a
“State accepting the same obligation” as the United States at the date
of filing of the Application and could therefore rely on the United
States declaration of 1946.
B. The declaration of the United States (paras. 52-76)
The notification of 1984 (Paras. 52-66)
The acceptance of the jurisdiction of the Court by the United
States on which Nicaragua relies is the result of the United States
declaration of 14 August 1946. However, the United States argues
that effect should be given to the letter sent to the Secretary- General
of the United Nations on 6 April 1984 (see p. 4 above). It is clear that
if this notification were valid as against Nicaragua at the date of filing
of the Application, the Court would not have jurisdiction under
Article 36 of the Statute. After outlining the
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arguments of the Parties in this connection, the Court points out that the
most important question relating to the effect of the 1984 notification is
whether the United States was free to disregard the six months’ notice
clause which, freely and by its own choice, it has appended to its
declaration, in spite of the obligation it has entered into vis-a-vis other
States which have made such a declaration. The Court notes that the United
States has argued that the Nicaraguan declaration, being of undefined
duration, is liable to immediate termination, and that Nicaragua has not
accepted “the same obligation” as itself and may not rely on the time-limit
proviso against it. The Court does not consider that this argument entitles
the United States validly to derogate from the time-limit proviso included in
its 1946 declaration. In the Court’s opinion, the notion of reciprocity is
concerned with the scope and substance of the commitments entered into,
including reservations, and not with the formal conditions of their creation,
duration or extinction. Reciprocity cannot be invoked in order to excuse
departure from the terms of a State’s own declaration. The United States
cannot rely on reciprocity since the Nicaraguan declaration contains no
express restriction at all. On the contrary, Nicaragua can invoke the six
months’ notice against it, not on the basis of reciprocity, but because it is an
undertaking which is an integral part of the instrument that contains it.
The 1984 notification cannot therefore override the obligation of the United
States to submit to the jurisdiction of the Court vis-a-vis Nicaragua.
CASE CONCERNING EAST TIMOR
Portugal v. Australia
ICJ 1995
(Summary)
In its Judgment the Court recalls that on 22 February 1991 Portugal
instituted proceedings against Australia concerning “certain activities of
Australia with respect to East Timor.” According to the Application
Australia had, by its conduct, “failed to observe — the obligation to respect
the duties and powers of [Portugal as] the administering Power [of East
Timor] ... and ... the right of the people of East Timor to self-determination
and the related rights.” In consequence, according to the Application,
Australia had “incurred international responsibility vis-a-vis both the
people of East Timor and Portugal.”
As the basis for the jurisdiction of the Court, the Application refers
to the declarations by which the two States have accepted
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the compulsory jurisdiction of the Court under Article 36, paragraph
2, of its Statute. In its Counter-Memorial, Australia raised questions
concerning the jurisdiction of the Court and the admissibility of the
Application....
The Court then gives a short description of the history of the
involvement of Portugal and Indonesia in the Territory of East Timor
and of a number of Security Council and General Assembly
resolutions concerning the question of East Timor. It further describes
the negotiations between Australia and Indonesia leading to the
Treaty of 11 December 1989, which created a “Zone of Cooperation
... in an area between the Indonesian Province of East Timor and
Northern Australia.”
The Court then summarizes the contentions of both Parties.
The Court goes on to consider Australia’s objection that there is
in reality no dispute between itself and Portugal. Australia contends
that the case as presented by Portugal is artificially limited to the
question of the lawfulness of Australia’s conduct, and that the true
respondent is Indonesia, not Australia. Australia maintains that it is
being sued in place of Indonesia. In this connection, it points out that
Portugal and Australia have accepted the compulsory jurisdiction of
the Court under Article 36, paragraph
2, of its Statute, but that Indonesia has not.
The Court finds in this respect that for the purpose of verifying
the existence of a legal dispute in the present case, it is not relevant
whether the “real dispute” is between Portugal and Indonesia rather
than Portugal and Australia. Portugal has, rightly or wrongly,
formulated complaints of fact and law against Australia which the
latter has denied. By virtue of this denial, there is a legal dispute.
The Court then considers Australia’s principal objection, to the
effect that Portugal’s Application would require the Court to
determine the rights and obligations of Indonesia. Australia contends
that the jurisdiction conferred upon the Court by the Parties’
declarations under Article 36, paragraph 2, of the Statute would not
enable the Court to act if, in order to do so, the Court were required to
rule on the lawfulness of Indonesia’s entry into and continuing
presence in East Timor, on the validity of the 1989 Treaty between
Australia and Indonesia, or on the rights and obligations of Indonesia
under that Treaty, even if the Court did not have to determine its
validity. In support of its argument, it refers to the Court’s Judgment
in the case of the Monetary Gold Removed
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from Rome in 1943. Portugal agrees that if its Application required
the Court to decide any of these questions, the Court could not
entertain it. The Parties disagree, however, as to whether the Court is
required to decide any of these questions in order to resolve the
dispute referred to it.
Portugal contends first that its Application is concerned
exclusively with the objective conduct of Australia, which consists in
having negotiated, concluded and initiated performance of the 1989
Treaty with Indonesia, and that this question is perfectly separable
from any question relating to the lawfulness of the conduct of
Indonesia.
Having carefully considered the argument advanced by
Portugal which seeks to separate Australia’s behaviour from that of
the Indonesia, the Court concludes that Australia’s behavior cannot be
assessed without first entering into the question why it is that
Indonesia could not lawfully have concluded the 1989 Treaty, while
Portugal allegedly could have done so; the very subject-matter of the
Court’s decision would necessarily be a determination whether,
having regard to the circumstances in which Indonesia entered and
remained in East Timor, it could or could not have acquired the
power to enter into treaties on behalf of East Timor relating to the
resources of its continental shelf. The Court could not make such a
determination in the absence of the consent of Indonesia.
The Court rejects Portugal’s additional argument that the rights
which Australia allegedly breached were rights erga omnes and that
accordingly Portugal could require it, individually, to respect them
regardless of whether or not another State had conducted itself in a
similarly unlawful manner.
In the Court’s view, Portugal’s assertion that the right of
peoples to self-determination, as it evolved from the Charter and from
United Nations practice, has an erga omnes character, is
irreproachable. The principle of self-determination of peoples has
been recognized by the United Nations Charter and in the
jurisprudence of the Court; it is one of the essential principles of
contemporary international law. However, the Court considers that
the erga omnes character of a norm and the rule of consent to
jurisdiction are two different things. Whatever the nature of the
obligations invoked, the Court could not rule on the lawfulness of the
conduct of a State when its judgment would imply an evaluation of
the lawfulness of the conduct of another State which is not a party to
the case.
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281
The Court goes on to consider another argument of Portugal
which, the Court observes, rests on the premise that the United
Nations resolutions, and in particular those of the Security Council,
can be read as imposing an obligation on States not to recognize any
authority on the part of Indonesia over East Timor and, where the
latter is concerned, to deal only with Portugal. Portugal maintains that
those resolutions would constitute “givens” on the content of which
the <tourt would not have to decide de novo.
The Court takes note of the fact that, for the two Parties, the
Territory of East Timor remains a non-self governing territory and its
people has the right to self-determination, and that the express
reference to Portugal as the “administering Power” in a number of the
above-mentioned resolutions is not at issue between them.
The Court finds, however, that it cannot be inferred from the sole fact
that a number of resolutions of the General Assembly and the
Security Council refer to Portugal as the administering Power of East
Timor that they intended to establish an obligation on third States to
treat exclusively with Portugal as regards the continental shelf of East
Timor. Without prejudice to the question whether the resolutions
under discussion could be binding in nature, the Court considers as a
result that they cannot be regarded as “givens” which constitute a
sufficient basis for determining the dispute between the Parties.
It follows from this that the Court would necessarily have to
rule upon the lawfulness of Indonesia’s conduct as a prerequisite for
deciding on Portugal’s contention that Australia violated its obligation
to respect Portugal’s status as administering Power, East Timor’s
status as a non-self governing territory and the right of the people of
the Territory to self-determination and to permanent sovereignty over
its wealth and natural resources. Indonesia’s rights and obligations
would thus constitute the very subject matter of such a judgment
made in the absence of that State’s consent. Such a judgment would
run directly counter to the “well- established principle of international
law embodied in the Court’s Statute, namely, that the Court can only
exercise jurisdiction over a State with its consent.” (Monetary Gold
Removed from Rome in 1943,1.CJ. Reports 1954, p. 32).
The Court accordingly finds that it is not required to consider Australia’s
other objections and that it cannot rule on Portugal’s claims on the merits,
whatever the importance of the questions raised by those claims and of the rules of
international law which they bring into play.
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The Court recalls in any event that it has taken note in the Judgment that, for
the two Parties, the Territory of East Timor remains a non-self governing territory
and its people has the right to self-determination.
Provisional measures.
Article 41
1.
The Court shall have the power to indicate, if it considers
that circumstances so require, any provisional measures which ought
to be taken to preserve the respective rights of either party.
2.
Pending the final decision, notice of the measures
suggested shall forthwith be given to the parties and to the Security
Council
NICARAGUA V. UNITED STATES ICJ 1984
(Summary)
The Court finds that the circumstances require that it should
indicate provisional measures, as provided by Article 41 of the
Statute, in order to preserve the rights claimed. It emphasizes that its
decision in no way prejudges the question of its jurisdiction to deal
with the merits of the case and leaves unaffected the right of the
Government of the United States and of the Government of Nicaragua
to submit arguments in respect of such jurisdiction or such merits.
For these reasons, the Court gives the decision of which the
complete text is reproduced below:
OPERATIVE PART OF THE ORDER
THE COURT,
A.
Unanimously,
Rejects the request made by the United States of America that
the proceedings on the Application filed by the Republic of Nicaragua
on April 9,1984, and on the request filed the same day by the
Republic of Nicaragua for the indication of provisional measures, be
terminated by the removal of the case from the list;
B.
pending its final decision in the proceedings instituted on
9 April 1984 by the Republic of Nicaragua against the United States
of America, the following provisional measures:
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1.
Unanimously,
The United States of America should immediately cease
and refrain from any action restricting, blocking or endangering
access to or from Nicaraguan ports, and, in particular, the
laying of mines;
2.
By fourteen votes to one,
The right to sovereignty and to political independence
possessed by the Republic of Nicaragua, like any other State of
the region or of the world, should be fully respected and should
not in any way be jeopardized by any military and paramilitary
activities which are prohibited by the principles of international
law, in particular the principle that States should refrain in their
international relations from the threat or use of force against the
territorial integrity or the political independence of any State,
and the principle concerning the duty not to intervene in
matters within the domestic jurisdiction of a State, principles
embodied in the United Nations Charter and the Charter of the
Organization of American States.
3.
Unanimously,
The Governments of the United States of America and
the Republic of Nicaragua should each of them ensure that no
action of any kind is taken which might aggravate or extend the
dispute submitted to the Court .
4.
Unanimously,
The Governments of the United States of America and
the Republic of Nicaragua should each of them ensure that no
action is taken which might prejudice the rights of the other
Party in respect of the carrying out of whatever decision the
Court may render in the case.
C.
Unanimously,
Decides further that, until the Court delivers its final judgment
in the present case, it will keep the matters covered by this Order
continuously under review.
D.
Unanimously,
Decides that the written proceedings shall first be addressed to
the questions of the jurisdiction of the Court to entertain the dispute
and of the admissibility of the Application;
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And reserves the fixing of the time-limits for the said written
proceedings, and the subsequent procedure, for further decision.
CASE CONCERNING LEGALITY OF USE OF FORCE
Yugoslavia v. United States of America, [1999] ICJ Rep.
[This case was a request by the Federal Republic of
Yugoslavia against the NATO states (Belgium, Canada, France,
Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and
United States) in relation to the bombings being carried out by the
NA 8:00 AM forces]
15. Whereas, the Court is deeply concerned with the human
tragedy, the loss of life, and the enormous suffering in Kosovo which
form the background of the present dispute, and with the continuing
loss of life and human suffering in all parts of Yugoslavia;
16. Whereas, the Court is profoundly concerned with the use
of force in Yugoslavia; whereas under the present circumstances such
use raises very serious issues of international law;
17. Whereas, the Court is mindful of the purposes and
principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter
and the Statute of the Court;
18. Whereas, the Court deems it necessary to emphasize that
all parties appearing before it must act in conformity with their
obligations under the United Nations Charter and other rules of
international law, including humanitarian law;
*
**
19. Whereas, the Court, under its Statute, does not
automatically have jurisdiction over legal disputes between States
parties to that Statute or between other States to whom access to the
Court has been granted; whereas the Court has repeatedly stated “that
one of the fundamental principles of its Statute is that it cannot decide
a dispute between States without the consent of those States to its
jurisdiction” (East Timor, Judgment, I.CJ. Reports 1995, p. 101,
para. 26); and whereas, the Court can therefore exercise jurisdiction
only between States parties to a dispute who not only have access to
the Court but also have accepted the jurisdiction of the Court, either
in general form or for the individual dispute concerned;
20. Whereas, on a request for provisional measures the Court
need not, before deciding whether or not to indicate them,
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finally satisfy itself that it has jurisdiction on the merits of the case,
yet it ought not to indicate such measures unless the provisions
invoked by the applicant appear,prima facie, to afford a basis on
which the jurisdiction of the Court might be established;
21. Whereas, in its Application Yugoslavia claims, in the
first place, to found the jurisdiction of the Court upon Article IX of
the Genocide Convention, which provides:
“Disputes between the Contracting Parties relating to the
interpretation, application or fulfillment of the present
Convention, including those relating to the responsibility of a
State for genocide or for any of the other acts enumerated in
Article III, shall be submitted to the International Court of
Justice at the request of any of the parties to the dispute”;
Whereas, it is not disputed that both Yugoslavia and the
United States are parties to the Genocide Convention; but
whereas, when the United States ratified the Convention on 25
November 1988, it made the following reservation: “That with
reference to Article IX of the Convention, before any dispute to
which the United States is a party may be submitted to the
jurisdiction of the International Court of Justice under this
Article, the specific consent of the United States is required in
each case”;
22. Whereas, the United States contends that “[its] reservation [to Article IX] is clear and unambiguous”; that “[t]he United
States has not given the specific consent [that reservation] requires
[and]... will not do so”; and that Article IX of the Convention cannot
in consequence found the jurisdiction of the Court in this case, even
prima facie; whereas, the United States also observed that
reservations to the Genocide Convention are generally permitted; that
its reservation to Article IX is not contrary to the Convention’s object
and purpose; and that, “[s]ince ... Yugoslavia did not object to the ...
reservation, [it] is bound by it”; and whereas the United States further
contends that there is no “legally sufficient ... connection between the
charges against the United States contained in the Application and
[the] supposed jurisdictional basis under the Genocide Convention”;
and whereas the United States further asserts that Yugoslavia has
failed to make any credible allegation of violation of the Genocide
Convention, by failing to demonstrate the existence of the specific
intent required by the Convention to “destroy, in whole or in part, a
national, ethnical, racial or religious group, as such,” which intent
could not be inferred from the conduct of conventional military
operations against another State.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
23. Whereas, Yugoslavia disputed the United States
interpretation of the Genocide Convention, but submitted no
argument concerning the United States reservation to Article IX of
the Convention;
24. Whereas, the Genocide Convention does not prohibit
reservations; whereas, Yugoslavia did not object to the United States
reservation to Article IX; and whereas, the said reservation had the
effect of excluding that Article from the provisions of the Convention
in force between the Parties;
25. Whereas, in consequence Article IX of the Genocide
Convention cannot found the jurisdiction of the Court to entertain a
dispute between Yugoslavia and the United States alleged to fall
within its provisions; and whereas, that Article manifestly does not
constitute a basis of jurisdiction in the present case, even prima facie;
* *
26. Whereas, in its Application Yugoslavia claims, in the
second place, to found the jurisdiction of the Court on Article 38,
paragraph 5, of the Rules of Court, which reads as follows:
“5. When the applicant State proposes to found the
jurisdiction of the Court upon a consent thereto yet to be given
or manifested by the State against which such application is
made, the application shall be transmitted to that State. It shall
not however be entered in the General List, nor any action be
taken in the proceedings, unless and until the State against
which such application is made consents to the Court’s
jurisdiction for the purposes of the case”;
27. Whereas, the United States observes that it “has not
consented to jurisdiction under Article 38, paragraph 5 [of the Rules
of Court] and will not do so”;
28. Whereas, it is quite clear that, in the absence of consent
by the United States, given pursuant to Article 38, paragraph 5, of the
Rules, the Court cannot exercise jurisdiction in the present case, even
prima facie\
* *
29. Whereas, it follows from what has been said above that
the Court manifestly lacks jurisdiction to entertain Yugoslavia’s
Application; whereas it cannot therefore indicate any provisional
measure whatsoever in order to protect the rights invoked therein;
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and whereas, within a system of consensual jurisdiction, to maintain
on the General List a case upon which it appears certain that the Court
will not be able to adjudicate on the merits would most assuredly not
contribute to the sound administration of justice;
* *
30. Whereas, there is a fundamental distinction between the
question of the acceptance by a State of the Court’s jurisdiction and
the compatibility of particular acts with international law; the former
requires consent; the latter question can only be reached when the
Court deals with the merits after having established its jurisdiction
and having heard full legal arguments by both parties;
31. Whereas, whether or not States accept the jurisdiction of
the Court, they remain in any event responsible for acts attributable to
them that violate international law, including humanitarian law;
whereas any disputes relating to the legality of such acts are required
to be resolved by peaceful means, the choice of which, pursuant to
Article 33 of the Charter, is left to the parties;
32. Whereas, in this context the parties should take care not
to aggravate or extend the dispute;
33. Whereas, when such a dispute gives rise to a threat to the
peace, breach of the peace or act of aggression, the Security Council
has special responsibilities under Chapter VII of the Charter;
* *
34.
For these reasons,
The Court,
(1) By twelve votes to three,
Rejects the request for the indication of provisional measures
submitted by the Federal Republic of Yugoslavia on 29 April 1999;
Intervention.
Article 62.
1.
Should a state consider that it has an interest of a legal
nature which may be affected by the decision in the case, it may
submit a request to the Court to be permitted to intervene.
2.
It shall be for the Court to decide upon this request.
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Article 63.
1.
Whenever the construction of a convention to which
states other than those concerned in the case are parties is in question,
the Registrar shall notify all such states forthwith.
2.
Every state so notified has the right to intervene in the
proceedings; but if it uses this right, the construction given by the
judgment will be equally binding upon it.
EL SALVADOR V. HONDURAS
Nicaragua Intervention [1992] ICJ Rep.
In its Application for permission to intervene, filed on 17
November 1989, Nicaragua stated that the Application was made by
virtue of Article 36, paragraph 1, and Article 62 of the Statute.
* * * * * The Chamber observes that as the Court has made
clear in previous cases, in order to obtain permission to intervene
under Article 62 of the Statute, a State has to show an interest of a
legal nature which may be affected by the Court’s decision in the case
...
(b)
Object of the intervention
The Chamber turns to the question of the object of Nicaragua’s
Application for permission to intervene in the case. A statement of
the “precise object of the intervention” is required by Article 81,
paragraph 2(b), of the Rules of Court.
Nicaragua’s indication, in its Application for permission to
intervene, of the object of its intervention in the present case, is as
follows:
“The intervention for which permission is requested has
the following objects:
“First, generally to protect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca and the adjacent
maritime areas by all legal means available.
“Secondly, to intervene in the proceedings in order to
inform the Court of the nature of the legal rights of Nicaragua
which are in issue in the dispute. This form of inter
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vention would have the conservative purpose of seeking to
ensure that the determination of the Chamber did not trench
upon the legal rights and interests of the Republic of Nicaragua.”
* * * * *
So far as the object of Nicaragua’s intervention is “to inform
the Court of the nature of the legal rights of Nicaragua which are in
issue in the dispute,” it cannot be said that this object is not a proper
one: it seems indeed to accord with the function of intervention. ...
Secondly, it does not seem to the Chamber that for a State to seek by
intervention “to protect its claims by all legal means” necessarily
involves the inclusion in such means of “that of seeking a favourable
judicial pronouncement” on its own claims. The “legal means
available” must be those afforded by the institution of intervention for
the protection of a third State’s legal interests. So understood, that
object cannot be regarded as improper.
* * * * *
The Chamber has now further to consider the argument of El
Salvador that for Nicaragua to intervene it must in addition show a
“valid link of jurisdiction” between Nicaragua and the Parties. In its
Application, Nicaragua does not assert the existence of any basis of
jurisdiction other than the Statute itself, and expresses the view that
Article 62 does not require a separate title of jurisdiction.
The question is whether the existence of a valid link of
jurisdiction with the parties to the case — in the sense of a basis of
jurisdiction which could be invoked, by a State seeking to intervene,
in order to institute proceedings against either or both of the parties —
is an essential condition for the granting of permission to intervene
under Article 62 of the Statute. In order to decide the point, the
Chamber must consider the general principle of consensual
jurisdiction in its relation with the institution of intervention.
There can be no doubt of the importance of this general
principle. The pattern of international judicial settlement under the
Statute is that two or more States agree that the Court shall hear and
determine a particular dispute. Such agreement may be given ad hoc,
by Special Agreement or otherwise, or may result from the
invocation, in relation to the particular dispute, of a compromissory
clause of a treaty or of the mechanism of Article 36, paragraph 2, of
the Court’s Statute. Those States are the “parties” to the proceedings,
and are bound by the Court’s eventual decision
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because they have agreed to confer jurisdiction on the Court to decide
the case, the decision of the Court having binding force as provided
for in Article 59 of the Statute. Normally therefore, no other State
may involve itself in the proceedings without the consent of the
original parties. Nevertheless, procedures for a “third” State to
intervene in a case are provided in Articles 62 and 63 of the Court’s
Statute. The competence of the Court in this matter of intervention is
not, like its competence to hear and determine the dispute referred to
it, derived from the consent of the parties to the case, but from the
consent given by them, in becoming parties to the Court’s Statute, to
the Court’s exercise of its powers conferred by the Statute. Thus, the
Court has the competence to permit an intervention even though it be
opposed by one or both of the parties to the case. The nature of the
competence thus created by Article 62 of the Statute is definable by
reference to the object and purpose of intervention, as this appears
from Article 62 of the Statute.
Intervention under Article 62 of the Statute is for the purpose of
protecting a State’s “interest of a legal nature” that might be affected
by a decision in an existing case already established between other
States, namely the parties to the case. It is not intended to enable a
third State to tack on a new case, to become a new party, and so have
its own claims adjudicated by the Court. Intervention cannot have
been intended to be employed as a substitute for contentious
proceedings. Acceptance of the Statute by a State does not of itself
create jurisdiction to entertain a particular case: the specific consent
of the parties is necessary for that. If an intervener were held to
become a party to a case merely as a consequence of being permitted
to intervene in it, this would be a very considerable departure from
the principle of consensual jurisdiction. It is therefore clear that a
State, which is allowed to intervene in a case, does not, by reason
only of being an intervener, become also a party to the case.
It thus follows from the juridical nature and from the purposes
of intervention that the existence of a valid link of jurisdiction
between the would-be intervener and the parties is not a requirement
for the success of the application. On the contrary, the procedure of
intervention is to ensure that a State with possibly affected interests
may be permitted to intervene even though there is no jurisdictional
link and it therefore cannot become a party. The Chamber therefore
concludes that the absence of a jurisdictional link between Nicaragua
and the Parties to this case is no bar to permission being given for
intervention.
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IV. Procedural Rights of State permitted to intervene
Since this is the first case in the history of the two Courts in
which a State will have been accorded permission to intervene under
Article 62 of the Statute, it appears appropriate to give some
indication of the extent of the procedural rights acquired by the
intervening State as a result of that permission. In the first place, as
has been explained above, the intervening State does not become
party to the proceedings, and does not acquire the rights, or become
subject to the obligations, which attach to the status of a party, under
the Statute and Rules of Court, or the general principles of procedural
law. Nicaragua, as an intervener, has of course a right to be heard by
the Chamber. That right is regulated by Article 85 of the Rules of
Court, which provides for submission of a written statement, and
participation in the hearings.
The scope of the intervention in this particular case, in relation
to the scope of the case as a whole, necessarily involves limitations of
the right of the intervener to be heard. An initial limitation is that it is
not for the intervener to address argument to the Chamber on the
interpretation of the Special Agreement concluded between the Parties
on 24 May 1986, because the Special Agreement is, for Nicaragua,
res inter alios acta; and Nicaragua has disclaimed any intention of
involving itself in the dispute over the land boundary. The Chamber
then summarizes the aspects of the case in respect of which Nicaragua
has shown the existence of an interest of a legal nature and those in
respect of which it has not, with the consequent limitations on the
scope of the intervention permitted.
Obligation to comply with decisions.
Article 59 (ICJ Statute)
The decision of the Court has no binding force except between
the parties and in respect of that particular case.
Article 60
The judgment is final and without appeal. In the event of
dispute as to the meaning or scope of the judgment, the Court shall
construe it upon the request of any party.
Article 61
1.
An application for revision of a judgment may be made
only when it is based upon the discovery of some fact of such a nature
as to be a decisive factor, which fact was, when the
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judgment was given, unknown to the Court and also to the party
claiming revision, always provided that such ignorance was not due
to negligence.
2.
The proceedings for revision shall be opened by a
judgment of the Court expressly recording the existence of the new
fact, recognizing that it has such a character as to lay the case open to
revision, and declaring the application admissible on this ground.
3.
The Court may require previous compliance with the
terms of the judgment before it admits proceedings in revision.
4.
The application for revision must be made at latest
within six months of the discovery of the new fact.
5.
No application for revision may be made after the lapse
of ten years from the date of the judgment.
Article 94 (UN Charter)
1.
Each Member of the United Nations undertakes to
comply with the decision of the International Court of Justice in any
case to which it is a party.
2.
If any party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by the Court, the other
party may have recourse to the Security Council, which may, if it
deems necessary, make recommendations or decide upon measures to
be taken to give to the judgment.
ICJ judgments are binding on the parties (Art. 59) and are deemed “final
and without appeal.” (Art. 60).
Enforcement is governed by Article 94 of the UN Charter. Member states
must comply with the judgment. If a party does not comply, the aggrieved party
may appeal to the UN Security Council “which may, if it deems necessary, make
recommendations or decide upon measures to be taken to give effect to the
judgment.” This may give rise to enforcement measures, which, however, is
subject to the veto powers of the permanent members. But the winning state might
make use of alternative methods of enforcement such as diplomatic or economic
pressure.
Advisory jurisdiction.
Under Article 65 of the Statute, the advisory jurisdiction may “in
accordance with the Charter of the United Nations.” Article 96 of the
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293
UN Charter empowers the General Assembly and the Security Council to make
requests for advisory opinion. At the same time the General Assembly may
authorize other UN agencies to seek advisory opinion. The provisions of the ICJ
Statute say:
Article 65.
1.
The Court may give an advisory opinion on any legal
question at the request of whatever body may be authorized by or in
accordance with the Charter of the United Nations to make such a
request.
2.
Questions upon which the advisory opinion of the Court
is asked shall be laid before the Court by means of a written request
containing an exact statement of the question upon which an opinion
is required, and accompanied by all documents likely to throw light
upon the question.
Article 66.
1.
The Registrar shall forthwith give notice of the request
for an advisory opinion to all states entitled to appear before the
Court.
2.
The Registrar shall also, by means of a special and direct
communication, notify any state entitled to appear before the Court or
international organization considered by the Court, or, should it not be
sitting, by the President, as likely to be able to furnish information on
the question, that the Court will be prepared to receive, within a time
limit to be fixed by the President, written statements, or to hear, at a
public sitting to be held for the purpose, oral statements relating to the
question.
3.
Should any such state entitled to appear before the Court
have failed to receive the special communication referred to in
paragraph 2 of this Article, such state may express a desire to submit
a written statement or to be heard; and the Court will decide.
4.
States and organizations having presented written or oral
statements or both shall be permitted to comment on the statements
made by other states or organizations in the form, to the extent, and
within the time limits which the Court, or, should it not be sitting, the
President, shall decide in each particular case. Accordingly, the
Registrar shall in due time communicate any such written statements
to states and organizations having submitted similar statements.
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For its part the UN Charter says:
Article 96.
1.
The General Assembly or the Security Council may request
the International Court of Justice to give an advisory opinion on any legal
question.
2.
Other organs of the United Nations and specialized agencies,
which may at any time be so authorized by the General Assembly, may also
request advisory opinions of the Court on legal questions arising within the
scope of their activities.
By definition advisory opinions are non-binding. Acceptance or nonacceptance of the advisory opinion is determined by the internal law of the
institution.
Other more active International Courts.
The more active are the Court of Justice of the European Communities, the
European Court of Human Rights, the Benelux Court of Justice and the InterAmerican Court of Human Rights. The International Criminal Court entered into
force only in 2002.
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THE USE OF FORCE SHORT OF WAR
The Use of Force.
The general principle is that international law recognizes the autonomy of
individual states and their right to freedom from coercion and to the integrity of
their territory. The basic principle is found in Article 2(4) of the UN Charter: “All
Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.”
It is noteworthy that the text does not use the word “war.”
The word war is a technical term which does not include some uses of force.
The prohibition in the Charter therefore broader than the prohibition of
war. Similarly, it should be noted that the text does not merely prohibit the
use of force “against the territorial integrity or political independence of any
state.” The text broadly prohibits the use of force “in any other manner
inconsistent with the Purposes of the United Nations.” It does yield the
meaning of a very broad prohibition of the use of force because the
purposes of the United Nations, as found in Article 1 of the Charter, go
beyond merely the protection of the territorial integrity and political
independence of states.
It will be recalled that the Corfu Channel case1 dealt with British warships
which had been struck by mines while exercising the right of innocent passage in
Albanian territory. Britain sent additional warships to sweep the minefields within
Albanian territory. The Court used language in support of a broad prohibition of
force:
'(1949) ICJ Rep.
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The United Kingdom has stated that its object was to secure the mines as
quickly as possible for fear lest they should be taken away by the authors of the
mine laying or by the Albanian authorities: this was presented either as a new and
special application of the theory of intervention, by means of which the
intervening State was acting to facilitate the task of the international tribunal, or as
a method of selfprotection or self-help. The Court cannot accept these lines of
defence. It can only regard the alleged right of intervention as the manifestation of
a policy of force which cannot find a place in international law. As regards the
notion of self-help, the Court is also unable to accept it: between independent
States the respect for territorial sovereignty is an essential foundation for
international relations....
The prohibition of the use of force, however, is not just conventional law. It
is customary international law. In Nicaragua v. US,2 the Court made this
pronouncement:
The Court finds that both Parties take the view that the
principles as to the use of force incorporated in the United Nations
Charter correspond, in essentials, to those found in customary
international law. They therefore accept a treaty-law obligation to
refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the purposes of the United
Nations (Art. 2, para. 4, of the Charter). The Court has however to be
satisfied that there exists in customary law an opinio juris as to the
binding character of such abstention. It considers that this opinio juris
may be deduced from, inter alia, the attitude of the Parties and of
States towards certain General Assembly resolutions, and particularly
resolution 2625 (XXV) entitled “Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations.”
Consent to such resolutions is one of the forms of expression of an
opinio juris with regard to the principle of nonuse of force, regarded
as a principle of customary international law, independently of the
provisions, especially those of an institutional kind, to which it is
subject on the treaty-law plane of the Charter.
2
( 1986) ICJ Rep.
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297
A separate opinion was filed by Judge Sette-Camara:
Judge Sette-Camara fully concurs with the Judgment because
he firmly believes that “the non-use of force as well as nonintervention — the latter as a corollary of equality of States and selfdetermination — are not only cardinal principles of customary
international law but could in addition be recognized as peremptory
rules of customary international law which impose obligations on all
States.”
The Threat of Force.
The Charter prohibits not just the use of force but also the threat of force.
The most typical form of this threat is the ultimatum in which the State to which it
is addressed is given a time-limit within which to accept the demands made upon it
and is told that, if it rejects the demands, war will be declared on it or certain
coercive measures such as a naval blockade, bombardment, or occupation of a
given territory, will be taken. However, the threat to use force is not always made
in so crude and open a form. There are sometimes veiled threats that may be very
effective, but are difficult to detect.
Threat of force was discussed by the ICJ in an advisory opinion on the
Legality of the Threat or Use of Nuclear Weapons3 in the light of the provisions of
the Charter:
In Article 2, paragraph 4, of the Charter the use of force against
the territorial integrity or political independence of another State or in
any other manner inconsistent with the purposes of the United
Nations is prohibited.
This prohibition of the use of force is to be considered in the
light of other relevant provisions of the Charter. In Article 51, the
Charter recognizes the inherent right of individual or collective selfdefence if an armed attack occurs. A further lawful use of force is
envisaged in Article 42, whereby the Security Council may take
military enforcement measures in conformity with Chapter VII of the
Charter.
These provisions do not refer to specific weapons. They apply
to any use of force, regardless of the weapons employed.
3
(1996) ICJ Rep.
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The Charter neither expressly prohibits, nor permits, the use of any
specific weapon, including nuclear weapons.
The entitlement to resort to self-defence under Article 51 is
subject to the conditions of necessity and proportionality. As the
Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) (I.CJ. Reports 1986,p. 94,para. 176): “there is a specific
rule whereby self-defence would warrant only measures which are
proportional to the armed attack and necessary to respond to it, a rule
well-established in customary international law.”
The proportionality principle may thus not in itself exclude the
use of nuclear weapons in self-defence in all circumstances.
But at the same time, a use of force that is proportionate under the
law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in
particular the principles and rules of humanitarian law. And the Court
notes that the very nature of all nuclear weapons and the profound
risks associated therewith are further considerations to be borne in
mind by States believing they can exercise a nuclear response in selfdefence in accordance with the requirements of proportionality.
In order to lessen or eliminate the risk of unlawful attack,
States sometimes signal that they possess certain weapons to use in
self-defence against any State violating their territorial integrity or
political independence. Whether a signaled intention to use force if
certain events occur is or is not a “threat” within Article 2, paragraph
4, of the Charter depends upon various factors. The notions of
“threat” and “use” of force under Article 2, paragraph 4, of the
Charter stand together in the sense that if the use of force itself in a
given case is illegal — for whatever reason — the threat to use such
force will likewise be illegal. In short, if it is to be lawful, the
declared readiness of a State to use force must be a use of force that is
in conformity with the Charter. For the rest, no State — whether or
not it defended the policy of deterrence — suggested to the Court that
it would be lawful to threaten to use force if the use of force
contemplated would be illegal.
Individual and Collective Self-defense.
The general prohibition of the use of force does not preclude the
right to self-defense. This is the subject of Article 51:
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THE USE OF FORCE SHORT OF WAR
Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence 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 selfdefence 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.
The subject was discussed at some length in Nicaragua v. USA*
The Court finds that both Parties take the view that the
principles as to the use of force incorporated in the United Nations
Charter correspond, in essentials, to those found in customary
international law. They therefore accept a treaty-law obligation to
refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the purposes of the United
Nations (Art. 2, para. 4, of the Charter). The Court has however to be
satisfied that there exists in customary law an opinio juris as to the
binding character of such abstention. It considers that this opinio juris
may be deduced from, inter alia, the attitude of the Parties and of
States towards certain General Assembly resolutions, and particularly
resolution 2625 (XXV) entitled “Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations.”
Consent to such resolutions is one of the forms of expression of an
opinio juris with regard to the principle of nonuse of force, regarded
as a principle of customary international law, independently of the
provisions, especially those of an institutional kind, to which it is
subject on the treaty-law plane of the Charter.
The general rule prohibiting force established in customary law
allows for certain exceptions. The exception of the right of individual
or collective self-defence is also, in the view of States, established in
customary law, as is apparent for example from the terms of Article
51 of the United Nations Charter, which refers to an “inherent right,”
and from the declaration in resolution 2625
‘(1986) ICJ Rep.
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(XXV). The Parties, who consider the existence of this right to be
established as a matter of customary international law, agree in
holding that whether the response to an attack is lawful depends on
the observance of the criteria of the necessity and the proportionality
of the measures taken in self-defence.
Whether self-defence be individual or collective, it can only be
exercised in response to an “armed attack.” In the view of the Court,
this is to be understood as meaning not merely action by regular
armed forces across an international border, but also the sending by a
State of armed bands on to the territory of another State, if such an
operation, because of its scale and effects, would have been classified
as an armed attack had it been carried out by regular armed forces.
The Court quotes the definition of aggression annexed to General
Assembly resolution 3314 (XXIX) as expressing customary law in
this respect.
The Court does not believe that the concept of “armed attack”
includes assistance to rebels in the form of the provision of weapons
or logistical or other support. Furthermore, the Court finds that in
customary international law, whether of a general kind or that
particular to the inter-American legal system, there is no rule
permitting the exercise of collective self-defence in the absence of a
request by the State which is a victim of the alleged attack, this being
additional to the requirement that the State in question should have
declared itself to have been attacked.
The question has also been raised whether “anticipatory self- defense” is
allowed. ... The question is valid because of the possibility of instant attacks under
present circumstances. Opinion on the subject is divided. Those who claim the
existence of the right say that the phrase “if an armed attack occurs” is not
exclusive. This is reminiscent of the view that protection of “vital interests”
justifies the use of force. In practical terms, however, states do not invoke the right
because they are afraid that it might be used against them too. Practice on the
subject is inconclusive. It will be recalled that Israel launched a preemptive strike
against its Arab neighbors in 1967 but the United Nations did not condemn the
act. The Nicaragua case, even with its extensive discussion of self defense, did not
mention anticipatory self-defense.
In the case of the Gulf War against Iraq, the Allied forces came on invitation
of Kuwait which was under invasion. The right to use force to defend claimed
territory was rejected in the Falkland war.
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301
An interesting development in the wake of the September 21 attack on the
World Trade Center is that Article 51 seems to have been used to justify a
response against a non-state aggressor. The coalition of forces which joined the
United States in the attacks on Afghanistan had the blessing of the General
Assembly, the Security Council, and of NATO.
Traditionally Allowable Coercive Measures.
Under international law, certain forms of coercive measures or “self help”
have been traditionally allowed. These include: Since there is no obligation to
maintain diplomatic relations, severance of diplomatic relations is not prohibited.
However, this should not be resorted to unless truly necessary because severance
might endanger peace. Moreover, severance should be distinguished from
suspension of diplomatic relations. Suspension involves withdrawal of diplomatic
representation but not of consular representation.
Retorsion is any of the forms of counter-measures in response to an
unfriendly act. Forms of retorsion include shutting of ports to vessels of an
unfriendly state, revocation of tariff concessions not guaranteed by treaty, or the
display of naval forces near the waters of an unfriendly state.
Reprisal denotes any kind of forcible or coercive measures whereby one
State seeks to exercise a deterrent effect or obtain redress or satisfaction, directly
or indirectly, for the consequences of the illegal at of another state which has
refused to make amends for such illegal acts. Unlike retorsion, the acts, standing
by themselves, would normally be illegal. Moreover, reprisal must be preceded by
an unsatisfied demand for reparation.
Under the Charter, however, reprisals have been narrowed down especially
since situations likely to cause disruption of peace should be brought to the
Security Council.
Embargo is another lawful measure. This can consist of seizure of vessels
even in the high seas. Embargo might also be pacific, as when a state keeps its
own vessels for fear that it might find their way in foreign territory. Their can also
be collective embargo, e.g., on import of drugs or of oil.
Boycott is a form of reprisal which consists of suspension of trade or
business relations with the nationals of an offending state.
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Some claim that this is a form of economic aggression which should be prohibited
by law.
Non-intercourse consists of suspension of all commercial intercourse with a
state.
Pacific blockade is a naval operation carried out in time of peace whereby a
state prevents access to or exit from particular ports or portions of the coast of
another state for the purpose of compelling the latter to yield to demands made by
the blockading state.
It is essentially a warlike act and therefore frowned upon by the UN
Charter.
These measures, to the extent that they have not been outlawed by the
Charter, may be employed by individual states or by collective action under the
UN.
Protection of Nationals Abroad.
Those who assert the right to defend nationals abroad argue that the right to
protect nationals abroad can be defended as an aspect of the right to self-defense
in Article 51 since population is an essential element of statehood. Others argue
that Article 2(4) does not prohibit it because it does not compromise the
“territorial integrity or political independence” of a state.
Examples of forcible rescue of nationals are the raid of Entebee in Uganda
and the US intrusion into Stanleyville to rescue American students. But the
legitimacy of such intervention is not firmly established in international law.
Humanitarian Intervention.
Discussion of armed humanitarian intervention by states in response to
massive violation of human rights in another state begins with the prohibition of
force in Article 2(4). The prohibition is now considered jus cogens. The prevailing
opinion is that intervention without the authorization of the Security Council
violates international law. One author describes the circumstances allowing
humanitarian intervention thus:5
5
Bruno Simma, NATO, The UN and the Use of Force: Legal Aspects, 10 Eur. J InT’l L,
No. 1.
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303
The question of the legality versus the illegality of so-called
“humanitarian intervention” must be answered in light of the foregoing. Thus, if the Security Council determines that massive violations of human rights occurring within a country constitute a threat to
the peace, and then calls for or authorizes an enforcement action to
put an end to these violations, a “humanitarian intervention” by
military means is permissible. In the absence of such authorization,
military coercion employed to have the target state return to a respect
for human rights constitutes a breach of Article 2(4) of the Charter.
Further, as long as humanitarian crises do not transcend borders, as it
were, and lead to armed attacks against other states, recourse to
Article 51 is not available. For instance, a mass exodus of refugees
does not qualify as an armed attack. In the absence of any justification
unequivocally provided by the Charter “the use of force could not be
the appropriate method to monitor or ensure ... respect [for human
rights],” to use the words of the International Court of Justice in its
1986 Nicaragua judgment. In the same year, the United Kingdom
Foreign Office summed up the problems of unilateral, that is,
unauthorized, humanitarian intervention as follows:
the overwhelming majority of contemporary legal opinion
comes down against the existence of a right of humanitarian
intervention, for three main reasons: firstly, the UN Charter and
the corpus of modem international law do not seem to
specifically incorporate such a right; secondly, State practice in
the past two centuries, and especially since 1945, at best
provides only a handful of genuine cases of humanitarian
intervention, and, on most assessments, none at all; and finally,
on prudential grounds, that the scope for abusing such a right
argues strongly against its creation.... In essence, therefore, the
case against making humanitarian intervention an exception to
the principle of non-intervention is that its doubtful benefits
would be heavily outweighed by its costs in terms of respect for
international law.
The same author, however, asks whether perhaps the law on the subject has
changed under the shock of genocide and crimes against humanity. He concludes:
By way of conclusion to this section: whether we regard the
NATO threat employed in the Kosovo crisis as an ersatz Chapter VII
measure, “humanitarian intervention,” or as a threat of collective
countermeasures involving armed force, any attempt at
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legal justification will ultimately remain unsatisfactory. Hence, we
would be well advised to adhere to the view emphasized and
affirmed so strongly in the German debate, and regard the Kosovo
crisis as a singular case in which NATO decided to act without
Security Council authorization out of overwhelming humanitarian
necessity, but from which no general conclusion ought to be drawn.
What is involved here is not legalistic hair-splitting versus the pursuit
of humanitarian imperatives. Rather, the decisive point is that we
should not change the rules simply to follow our humanitarian
impulses; we should not set new standards only to do the right thing
in a single case. The legal issues presented by the Kosovo crisis are
particularly impressive proof that hard cases make bad law.
Another author, while basically adhering to the legal conclusion above, does
not stop there. He says:6
Be that as it may, any person of common sense is justified in
asking him or herself the following dramatic question: Faced with
such an enormous human-made tragedy and given the inaction of the
UN Security Council due to the refusal of Russia and China to
countenance any significant involvement by the international
community to stop the massacres and expulsions, should one sit idly
by and watch thousands of human beings being slaughtered or
brutally persecuted? Should one remain silent and inactive only
because the existing body of international law proves incapable of
remedying such a situation? Or, rather, should respect for the Rule of
Law be sacrificed on the altar of human compassion?
My answer is that from an ethical viewpoint resort to armed
force was justified. Nevertheless, as a legal scholar I cannot avoid
observing in the same breath that this moral action is contrary to
current international law.
I contend, however, that as legal scholars we must stretch our
minds further and ask ourselves two questions. First, was the NATO
armed intervention at least rooted in and partially justified by
contemporary trends of the international community? Second, were
some parameters set, in this particular instance of use of force, that
might lead to a gradual legitimation of forcible humanitarian
countermeasures by a group of states outside any authorization by the
Security Council?
'’Antonio Cassese, EX INJURIA ORITUR JUS : ARE We MOVING TOWARDS INTERNATIONAL L EGITIMATION OF FORCIBLE HUMANITARIAN
COUNTERMEASURES IN THE WORLD COMMUNITY.
10
Eur. J Int’l L, No. 1.
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Based on these nascent trends in the world community, I
submit that under certain strict conditions resort to armed force may
gradually become justified, even absent any authorization by the
Security Council. These conditions may be enumerated as follows:
(i) gross and egregious breaches of human rights
involving loss of life of hundreds or thousands of innocent
people, and amounting to crimes against humanity, are carried
out on the territory of a sovereign state, either by the central
governmental authorities or with their connivance and support,
or because the total collapse of such authorities cannot impede
those atrocities; (ii) if the crimes against humanity result from
anarchy in a sovereign state, proof is necessary that the central
authorities are utterly unable to put an end to those crimes,
while at the same time refusing to call upon or to allow other
states or international organizations to enter the territory to
assist in terminating the crimes. If, on the contrary, such crimes
are the work of the central authorities, it must be shown that
those authorities have consistently withheld their cooperation
from the United Nations or other international organizations, or
have systematically refused to comply with appeals,
recommendations or decisions of such organizations; (iii) the
Security Council is unable to take any coercive action to stop
the massacres because of disagreement among the Permanent
Members or because one or more of them exercises its veto
power. Consequently, the Security Council either refrains from
any action or only confines itself to deploring or condemning
the massacres, plus possibly terming the situation a threat to the
peace; (iv) all peaceful avenues which may be explored
consistent with the urgency of the situation to achieve a
solution based on negotiation, discussion and any other means
short of force have been exhausted, notwithstanding which, no
solution can be agreed upon by the parties to the conflict; (v) a
group of states (not a single hegemonic Power, however strong
its military, political and economic authority, nor such a Power
with the support of a client state or an ally) decides to try to halt
the atrocities, with the support or at least the nonopposition of
the majority of Member States of the UN; (vi) armed force is
exclusively used for the limited purpose of stopping the
atrocities and restoring respect for human
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rights, not for any goal going beyond this limited purpose.
Consequently, the use of force must be discontinued as soon as
this purpose is attained. Moreover, it is axiomatic that use of
force should be commensurate with and proportionate to the
human rights exigencies on the ground. The more urgent the
situation of killings and atrocities, the more intensive and
immediate may be the military response thereto. Conversely,
military action would not be warranted in the case of a crisis
which is slowly unfolding and which still presents avenues for
diplomatic resolution aside from armed confrontation.
Despite all these possible shortcomings, I believe that it is our
task as international lawyers to pinpoint the evolving trends as they
emerge in the world community, while at the same time keeping a
watchful eye on the actual behaviour of states. Standards of conduct
designed to channel the action of states are necessary in the world
community as in any human society. And it is not an exceptional
occurrence that new standards emerge as a result of a breach of lex
lata. To suggest realistic but prudent parameters in line with the
present trends in the world community might serve the purpose of
restraining as much as possible recourse to armed violence in a
community that is increasingly bent on conflict and bloodshed.
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THE LAW OF WAR (INTERNATIONAL
HUMANITARIAN LAW)
International Humanitarian Law.
What used to be known as the Laws of War now come under what is called
International Humanitarian Law. It provides for instances when the use of armed
force is justifiable (jus ad be Hum) and it regulates the conduct of armed conflict
(jus in bello).
Hyde, writing in 1922, said: “It always lies within the power of a State ... to
gain political or other advantages over another, not merely by the employment of
force, but also by direct recourse to war.” Early international law did not consider
as illegal a war admittedly waged for such purposes. It rejected, to that extent, the
distinction between just and unjust wars. War was in law a natural function of the
State and a prerogative of its uncontrolled sovereignty.
There were early attempts to outlaw war such as in the Hague Convention II
(1907), in the Covenant of the League of Nations (1919), and in the Kellog-Briand
Pact for the Renunciation of War (1928). But these did not prevent the horrors of
World War II. It was after World War II that a more effective law on preventing
war was formulated.
Article 2(4) of the UN Charter says: “All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity
or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.” In effect, this provision outlaws war.
The paradox, however, is that side by side with the prohibition of armed
conflict is the proliferation of laws of war. Three facts can explain the paradox:
first, those who resort to the use of arms do not give up until they have achieved
victory; second, given the first fact, humanitarian considerations dictate the need
for rules which curtail
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violence beyond what is necessary to achieve a state’s goal; third, there still
remains in the hearts of the soldiery an acceptance of chivalry as a value.
On the assumption that wars can always occur there arose the need to
formulate laws that can humanize the conduct of war. From the middle of the last
century the law on the area developed as a result of the pioneering effort of Henry
Dunant who had been appalled by the brutality of the battle of Solferino. His book
“A Memory of Solferino” inspired the cretion of the International Red Cross in
1863 and his ideas found their way into the 1864 Geneva Convention.
The Hague Law.
Early laws of war were customary. At present the laws are largely
conventional. In 1899, twenty-six countries met at The Hague and promulgated
Conventions and Declaration. More conferences were held in 1907. The principles
adopted in these conferences constitute that part of the law of armed conflict still
known as the Law of the Hague governing land and naval warfare. Principles
governing the conduct of air warfare were to follow later.
The Geneva Conventions of 1949.
One of the most significant developments in the law of armed conflicts was
the adoption in 1949 of four Geneva “Red Cross” Conventions governing: I —
Wounded and Sick in the Field; II — Wounded, Sick and Shipwrecked at Sea; III
— Prisoners of War; IV — Civilians. The Convention on civilians is completely
new and is the result of the experience of civilians in occupied territory during
World War II.
The essence of the Geneva conventions is that persons not actively engaged
in warfare should be treated humanely. The rules apply to any international armed
conflict, whether a declared war or not.
Customary and Conventional Law.
Much of what is embodied in the Hague and Geneva Conventions are
customary law. Thus, non-parties to the Convention are covered by the customary
law of armed conflict. It has in fact become common practice, when one of the
parties to the conflict is not a party to the conventions, for such party to make a
declaration that it will abide
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309
by the terms of the Convention. Japan, for instance, did just that at the outbreak of
the Pacific War.
Commencement and Termination of Hostilities
Under the Hague Convention III, for an armed conflict to be considered a
war in a legal sense, the hostilities should be preceded by a declaration of war or
an ultimatum with a fixed limit. Since 1939, however, most armed conflicts have
commenced without a declaration or ultimatum. With the exception of the attack
on Poland, Germany’s attack on other states was done without benefit of
declaration. So was Japan’s attack on Pearl harbor. Thus, while the Constitution
gives to the legislature the power to declare the existence of a state of war and to
enact all measures to support the war, the actual power to make war is lodged
elsewhere, that is, in the executive power which holds the sword of the nation. The
executive power, when necessary, may make war even in the absence of a
declaration of war. In the words of the American Supreme Court, war being a
question of actualities, “the President was bound to meet it in the shape it
presented itself, without waiting for Congress to baptize it with a name; and no
name given to it by him or them could change the fact.”1 For that matter, as far as
the UN Charter is concerned, there is no provision requiring a declaration of war
or an ultimatum. Normally, however, the victims of the attack respond with a
declaration of war.
The commencement of hostilities result in the severance of all normal
relations. Political and economic treaties are terminated. However, treaties of a
humanitarian character remain in force.
Nationals of a combatant state residing in enemy territory become subject to
restrictions which the enemy might impose subject to limitations found in
customary or treaty law. Merchant vessels found in enemy territory are given a
period of grace to depart.
The laws of armed conflict remain in effect until the conflict is terminated.
There is some conflict as to when armed conflict actually ends. But the clearest
method of termination is by means of a peace treaty. Nevertheless, even in the
absence of a peace treaty, once the combatant states have made a declaration that
hostilities have come to an end, the armed forces are bound by such declaration.
'See Prize Cases, 2 Bl. 635 (U.S. 1863).
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Armistice, however, which is an agreement to suspend hostilities, whether
local or general, does not end the conflict. But it puts an end to active fighting in
accordance with the terms of the agreement.
Protocol I
Protocol I to the 1949 Geneva Convention created a new category of
international armed conflict. It includes within the definition of international
armed conflict
armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist regimes in the
exercise of their right of self-determination, as enshrined in the
Charter of the United Nations and the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations.
Those engaged in such a conflict receive combatant status and are entitled
to combatant rights and duties. For instance, when captured, they are not to be
treated as ordinary criminals but as prisoners of war.
Methods of Warfare: Jus in Bello.
The purpose of the laws on armed conflict is well expressed by the
nineteenth century Declaration of St. Petersburg which said:
The progress of civilization should have the effect of alleviating as much as possible the calamities of war: the only legitimate
object which states should endeavour to accomplish during war is to
weaken the military forces of the enemy; for this purpose it is
sufficient to disable the greatest possible number of men; this object
would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death
inevitable; the employment of such arms would, therefore, be
contrary to the laws of humanity.
Thus, it is that the Hague Convention prohibits the employment of “arms,
projectiles or material calculated to cause unnecessary suffering.” There is a need
to balance military necessity and humanitarian consideration. This is also
expressed in the advisory opinion on the Legality of the Threat or Use of Nuclear
Weapons (ICJ 1996):
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311
The cardinal principles contained in the texts constituting the
fabric of humanitarian law are the following. The first is aimed at the
protection of the civilian population and civilian objects and
establishes the distinction between combatants and non- combatants;
states much never make civilians the object of attack and must
consequently never use weapons that are incapable of distinguishing
between civilian and military targets. According to the second
principle, it is prohibited to cause unnecessary suffering to
combatants; its is accordingly prohibited to use weapons causing
them such harm or uselessly aggravating their suffering.
In application of that second principle, states do not have unlimited
freedom of choice of means in the weapons they use.
The International Commission of the Red Cross published three statements
which sum up the basic rules governing armed conflicts:2
I. The Soldier’s Rules
1.
Be a disciplined soldier. Disobedience of the laws of war
dishonours your army and yourself and causes unnecessary suffering;
far from weakening the enemy’s to fight, it often strengthens it.
2.
Fight only enemy combatants and attack only military
objectives.
3.
Destroy no more than your mission requires.
4.
Do not fight enemies who are ‘out of combat’ [hors de
combat] or surrender. Disarm them and hand them over to your
superior.
5.
or foe.
Collect and care for the wounded and sick, be they friend
6.
humanity.
Treat all civilians and all enemies in your power with
7.
Prisoners of war must be treated humanely and are bound
to give only information about their identity. No physical or mental
torture of prisoners of war is permitted.
8.
Do not take hostages.
9.
Abstain from all acts of vengeance.
2
(1993).
See L.C. Green, THE CONTEMPORARY LAW OF ARMED CONFUCT, Manchester University Press,
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
10. Respect all persons objects bearing the emblem of the
red cross, red crescent, red lion and sun, the white flag of truce or
emblems designating cultural property.
11.
espect other people’s property. Looting is prohibited.
12.
ndeavour to prevent any breach of the above rules. Report any
violation to your superior. Any breach of the law of war is
punishable.
II. Fundamental Rules of International Humanitarian Law
Applicable to Armed Conflicts
1.
Persons hors de combat and those who do not take a
direct part in hostilities are entitled to respect for their lives and moral
and physical integrity. They shall in all circumstances be protected
and treated humanely without any adverse distinctions.
2.
It is forbidden to kill or injure an enemy who surrenders
or is hors de combat.
3.
he wounded and sick shall be collected and cared for by the party to
the conflict which has them in its power. Protection also covers
medical personnel, establishments, transports and equipment. The
emblem of the red cross or the red crescent is the sign of such
protection and must be protected.
4.
Captured combatants and civilians under the authority of
an adverse party are entitled to respect for their lives, dignity,
personal rights and convictions. They shall be protected against all
acts of violence and reprisals. They shall have the rights to correspond with their families and receive relief.
5.
Everyone shall be entitled to benefit from fundamental
judicial guarantees. No one shall be responsible for an act he has not
committed. No one shall be subjected to physical and mental torture,
corporal punishment or cruel or degrading treatment.
6.
Parties to a conflict and members of their armed forces
do not have an unlimited choice of methods and means of warfare. It
is prohibited to employ weapons or methods of warfare of a nature to
cause unnecessary losses or excessive suffering.
7.
Parties to a conflict shall at all times distinguish between
the civilian population and combatants in order to spare civilian
population and property. Neither the civilian population as such nor
civilian persons shall be the object of attack. Attacks shall be directed
only against military objectives.
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III. Non-International Armed Conflicts
A. General Rules
1.
The obligation to distinguish between combatants and
civilians is a general rule applicable in non-international armed
conflicts. It prohibits indiscriminate attacks.
2.
The prohibition of attacks against the civilian population
as such or against individual civilians is a general rule applicable in
non-international conflicts. Acts of violence in tended primarily to
spread terror among the civilian population are also prohibited.
3.
The probation of superfluous injury or unnecessary
suffering is a general rule applicable in non-international conflicts. It
prohibits, in particular, the use of means of warfare which uselessly
aggravate the sufferings of disabled men or render their death
inevitable.
4.
The prohibition to kill, injure or capture an adversary by
resort to perfidy is a general rule applicable in non-international
armed conflicts; in a non-international armed conflict, acts inviting
the confidence of an adversary to lead him to believe that he is
entitled to, or is obliged to accord protection under the rules of
international law applicable in non-international armed conflicts, with
intent to betray that confidence, shall constitute perfidy.
5.
The obligation to respect and protect medical and religious personnel and medical units and transports in the conduct of
military operations is a general rule applicable in non-international
armed conflicts.
6.
The general rule prohibiting attacks against the civilian
population implies, as a corollary, the prohibition of attacks on
dwellings and other installations which are used only by the civilian
population.
7.
The general rule prohibiting attacks upon the civilian
population implies, as a corollary, the prohibition to attack, destroy,
remove or render useless objects indispensable to the survival of the
civilian population.
8.
The general rule to distinguish between combatants and
civilians and the prohibition of attacks against the civilian population
as such or against individual civilians implies, in order to be effective,
that all feasible precautions have to be taken to avoid injury, loss or
damage to the civilian population.
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B. Prohibitions and Restrictions on the Use of Certain Weapons
1.
The customary rule prohibiting the use of chemical
weapons, such as those containing asphyxiating or vesicant agents,
and the use of bacteriological (bacterial) weapons is applicable in
non-international armed conflicts.
2.
The customary rule prohibiting bullets which expand or
flatten easily in the human body, such as Dum-Dum bullets, is
applicable in non-international armed conflicts.
3.
The customary rule prohibiting the use of poison as a
means of warfare is applicable in non-international armed conflicts.
4.
In application of the general rules listed in section A
above, especially those on the distinction between combatants and
civilians and on the immunity of the civilian population, mines,
booby-traps and other devices within the meaning of Protocol
II to the 1980 Convention on conventional weapons may not be
directed against the civilian population as such or against individual
civilians, nor used indiscriminately.
The prohibition of booby-traps listed in Article 6 of the
Protocol extends to their use in non-international armed conflicts, in
application of the general rules on the distinction between combatants
and civilians, the immunity of the civilian population, the prohibition
of superfluous injury or unnecessary suffering, and the prohibition of
perfidy.
To ensure the protection of the civilian population referred to in
the previous paragraphs, precaution must be taken to protect it from
attacks in the form of mines, booby-traps and other devices.
5.
In application of the general rules listed in section A
above, especially those on the distinction between combatants and
civilians and on the immunity of the civilian population, incendiary
weapons may not be directed against the civilian population as such,
against individual civilians or civilian objects, nor used
indiscriminately.
Neutrality.
In a conflict among various powers, there are always some who prefer to
stay out of the fray. They adopt an attitude of impartiality towards the belligerents.
Such an attitude must be recognized by belligerents and creates both rights and
duties in the neutral states. The
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315
decision to adopt or not to adopt a neutral stance is not governed by international
law. It is a dictated by politics. For that reason, there is no special mode of
assertion required.
Belligerents must respect the rights of neutral states. For their part, neutrals
must not engage in activities which interfere with the activities of the belligerents.
The detailed rules concerning the rights and duties of neutrals and belligerents are
found in Hague Convention V, 1907.
Non-international conflicts.
Civil wars
Civil wars or rebellion do not violate international law. Article 2(4) of the
Charter does not apply to internal conflicts.
Outside help for governments experiencing rebellion is generally considered
legitimate provided requested by the government. However, there is no total
clarity in this matter especially in situations were the rebels may be on the verge of
gaining victory.
Aid to rebels is contrary to international law. The 1970 Declaration on
Principles of international law says that “no state shall organize, assist, foment,
finance, incite or tolerate subversive, terrorist or armed activities directed towards
the violent overthrow of the regime of another state, or interfere in civil strife in
another state.”
Common Article 3
Traditionally, international law on armed conflict does not apply to internal
conflicts such as civil wars or rebellions. In 1949, however, it was decided that
minimum humanitarian protection should also be promulgated to cover internal
conflict. For this reason, each of the four Geneva Conventions contains a common
Article 3 which says:
Art. 3. In the case of armed conflict not of an international
character occurring in the territory of one of the High Contracting
Parties, each Party to the conflict shall be bound to apply, as a
minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those
placed hors de combat by sickness, wounds, detention, or any other
cause, shall in all circumstances be treated humanely,
3)6
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
without any adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited
at any time and in any place whatsoever with respect to the abovementioned persons:
(a) violence to life and person, in particular murder of
all kinds, mutilation, cruel treatment and torture;
(b)
taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees
which are recognized as indispensable by civilized peoples.
(2)
The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International
Committee of the Red Cross, may offer its services to the Parties to
the conflict.
The Parties to the conflict should further endeavour to bring
into force, by means of special agreements, all or part of the other
provisions of the present Convention.
The application of the preceding provisions shall not affect the
legal status of the Parties to the conflict.
The last sentence means that the application does not convert the conflict
into an international one and therefore does not preclude the possibility that any
participant in the conflict may be prosecuted for treason.
Protocol II
The first and only international agreement exclusively regulating the
conduct of parties in a non-international armed conflict is the 1977 Protocol II to
the 1949 Geneva Conventions. It “develops and supplements Article 3 common to
the Geneva Conventions of 12 August 1949 without modifying its existing
conditions or application.” A non-international armed conflict covered by this
expanded guarantee is defined in Article I. They are armed conflicts —
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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.
Article I further adds that the “Protocol shall not apply to situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not being armed conflicts.” This is
true even if the armed forces of the territory may have been called upon to
suppress the disorder.
It will thus be seen that Protocol II sets down requirements for what it calls
“material field of application.” First, the armed dissidents must be under
responsible command; second, they must “exercise such control over a part of its
territory as to enable them to carry out sustained and concerted military operations
and to implement this Protocol.” The Protocol thus sets a very high threshold for
applicability, higher than the threshold for the applicability of Protocol I which
does not require control over territory. For this reason, in the conflict between the
Philippine government and the National Democratic Front, the Philippine
government has been able to maintain consistently that the NDF and its New
People’s Army have not crossed this threshold and that therefore what applies to
them is Common Article 3.
International Terrorism.
There is no crime named terrorism in Philippine statute books, although
some acts which are considered terroristic are independently punished by the
Revised Penal Code. The U.S. has its municipal Anti- Terrorism Law
(International Crime Control Act of 1998) and the UK has the Terrorism Act of
2000. In the British law, what come under the Terrorism Act are violent moves
against person or property or against public health and safety which have for their
purpose to influence the government or to intimidate a section of the public or to
advance a political, religious or ideological cause. The taking of hostages, indiscriminate killings or destruction of property for the enumerated purposes come
under the law. But these can also be prosecuted as individual crimes in domestic
law.
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In international law, part of the problem in criminalizing terrorism is the
difficulty in defining the prohibited act. A draft of an International Convention for
the Suppression of the Financing of Terrorism adopted by the General Assembly
of the United Nations on December 9, 1999 makes an attempt at a definition. It
says:
Any person commits an offense [of terrorism] within the
meaning of this Convention if that person, by any means, unlawfully
and intentionally, does an act intended to cause (a) death or serious
bodily injury to any person, or (b) serious damage to a State or
Government facility with the intent to cause extensive destruction of
such a place, facility or system, or where such destruction results or is
likely to result in major economic loss, when the purpose of such act,
by its nature or context, is to intimidate a population, or to compel a
Government or an international organization to do or abstain from
doing any act.
Can it be said, however, that even now terrorism is already a crime against
humanity covered by universal jurisdiction? The attack on the World Trade Center
on September 11, 2001, was characterized as a crime against humanity by the
French jurist and Minister of Justice, Robert Badinter, and likewise by Kofi
Annan of the UN Secretariat and by Mary Robinson, the UN High Commissioner
on Human Rights. They were followed in this by a number of distinguished jurists
like Alain Pellet of Le Monde and the British lawyer G. Robinson. What led them
to arrive at this conclusion was the atrocious character exhibited by the act: its
magnitude, its gravity, the targeting of civilians seen as part of a well-planned
operation.
A time may come when other states will follow in characterizing the act as
a crime against humanity. But it would be necessary to determine what the
specific conditions should be for considering an act as one against humanity.
Obviously not every act of terrorism would have the magnitude and gravity of the
September 11 attack.
The importance of the characterization of the September 11 attack as a
crime against humanity is that it led to what seems to be a development in the
international law of self-defense. Under traditional international law as now
embodied in the UN Charter, self-defense is a legitimate response to an armed
attack by a state. But the magnitude of the attack of September 11 was such that it
persuaded the Security Council and the North Atlantic Treaty Organization to
issue resolutions
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which in effect justified resort to Art. 51 of the UN Charter on collective selfdefense without waiting for action by the Security Council. A NATO press release
agreed that an armed attack against one or more of the Allies in Europe or North
America shall be considered an attack against them all. Thus the action of the
various states which have joined the coalition against the forces of Bin Laden has
assimilated the terrorist attack on the WTC to an attack by a state sufficient to
trigger resort to collective self-defense.
If this means a development in the international law on self defense, it
would still be necessary to deal with some problems that need clarification. For
one, of what magnitude should the attack be to merit assimilation with an attack
by a state? This is relevant for determining whether the activities, for instance, of
the Abu Sayyaf, even if internationally connected, are of a magnitude to qualify as
an “armed attack” under the terms of the Mutual Defense Treaty between the
Philippines and the United States. Moreover, as one writer put it with regard to
fighting terrorism, “Problems arise with regard to the target of self defense, its
timing, its duration, and the admissible means."
The issue of target necessarily brings in the issue of sovereignty because
presumably the targets would be found in some state territory. Furthermore, at
what point would justifiable self-defense end? In traditional wars, this is more
easily determined. Not so in the fight against terrorism. Finally, one would have to
ask what means are justifiable. These questions are central to the conflict between
Israel and Hamas of Palestine.
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INTERNATIONAL ENVIRONMENTAL LAW
Environmental concerns.1
Concern about the environment is expressed by the Philippine Constitution
in Article II, Section 16 thus: “The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm and harmony
of nature.” The discussions in the 1986 Constitutional Commission manifested a
clear desire to make environmental protection and ecological balance conscious
objects of police power.2 Oposa v. Factoran, Jr.,3 on the basis of Section 16 linked
with the right to health, recognized a constitutional “right to a balanced and
healthful ecology” and “the correlative duty to refrain from impairing the
environment.”4 Oposa was followed by Laguna Lake Development Authority
(LLDA) v. Court of Appeals? The Supreme Court, relying on Section 16, as also
bolstered by the right to health in Section
15 as well as by the Universal Declaration of Human Rights and the Alma
Conference Declaration of 1978, upheld the authority of LLDA to protect the
inhabitants of the Laguna Lake Area from the deleterious effects of pollutants
coming from garbage dumping and the discharge of wastes in the area.6 Laguna
Lake upheld the exclusive authority of the Laguna Lake Development Authority to
regulate the exploitation of Laguna Lake, as against the claim of municipalities
around the lake, in order to effectively address the environmental and ecological
stress on Laguna Lake.
AND
'For more extensive materials on environmental concerns, see
Blackstone Press Limited, 1991.
Martin Dixon and Robert McCorquadale, CASES
MATERIALS ON INTERNATIONAL LAW 485-524
2
4 RECORD OF THE CONSTITUTIONAL COMMISSION 912-916.
224 SCRA 792 (1993).
4
Id. at 307-308.
5
231 SCRA292 (1994).
6
Id. at 307-308.
5
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321
Along a similar vein, in 2007, the Supreme Court upheld the validity of an
ordinance of the City of Manila requiring the oil companies to close and transfer
the Pandacan Terminals to another location within a specified period.7 The latest
on this subject was Metropolitan Manila Development Authority v. Residents of
Manila Bay8 where the Supreme Court ordered various government agencies to
clean up Manila Bay.
The protection of the environment is now also a concern of international
law. It is in fact a challenge to the development of international law because its
demands cannot be met without intrusion into the domestic jurisdiction and
sovereignty of states. The nature and magnitude of the challenge are such that they
require not only the joint action of states but also the involvement of non-state
actors.
Environmental concerns
The concern of environmental protection is not just about the atmosphere,
the sea, the land, flora and fauna. It is also about the preservation of the cultural
heritage of mankind as found in archeological and artistic remains. The goal of
environmental protectionists is the rational use of the elements that make up the
environment through control, reduction and, wherever possible, elimination of the
causes of environmental degradation.
Inseparably related with environmental concerns are human rights issues.
Thus the long delay of Gorbachev before issuing a statement about the danger
posed by the Chernobyl nuclear disaster was a violation of the human rights of
those affected by the leak. To a lesser degree it can be said that the failure of the
government to prevent pollution of the Pasig and the failure of the Traffic Bureau
to check offending vehicles and factories are a violations of the the people’s right
to a healthy environment. As the ICJ pronounced in the Danube Dam Case (ICJ
Rep. 1997): “The protection of the environment is a ... vital part of contemporary
human rights doctrine, for it is a sine qua non for numerous human rights such as
the right to health, and the right to life itself.”
What make the task difficult are various competing interests. In a world of
so much poverty and exploding population, it is not possible
’Social Justice Society vs. Atienza, G.R. No. 156052,13 February 2008.
8
G.R. Nos. 171947-48, December 18,2008.
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to ignore the need for poverty alleviation. Added to these are the issues of
sovereignty and the still controversial issue of state responsibility.
Who have environmental rights?
In protecting the environment, the real objects of protection are persons
capable of having rights. Trees and others can be said to have rights only in a
metaphorical sense. Thus the approach in Oposa v. Factoran, Jr.9 was to have
minors plead for “intergenerational protection,” and the right asserted was not of
the inanimate world but of generations of people. The case involved thirty-four
minors who went to Court represented by their parents pleading the cause of
“intergenerational responsibility” and “inter-generational justice” and asking the
Supreme Court to order the Secretary of Natural Resources to cancel all existing
timber license agreements and to “cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements.” The minors
filed the action for themselves as representing “their generation as well as
generations yet unborn.” The Supreme Court recognized the existence of the right.
Although Oposa, Jr. did not order the Secretary outright to cancel licenses and
desist from issuing new ones, the Court affirmed the justiciability of the issue
raised and remanded the case to the lower court for further proceedings.
Earlier, in the Trail Smelter Case (see Chapter 8, supra) the Arbitral
Tribunal also said that “no state has the right to use or permit the use of its
territory in such manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein ...” The Nuclear Test Cases, supra, was
based on the claim that atmospheric nuclear testing was a breach of customary
international law and would also infringe Australia’s sovereignty over its territory.
“Sustainable Development.”
An important concept in the field both of economics and environmental
rights is the concept of sustainable development. It is a concept adopted by the
World Commission on Environment and Development in recognition of
competing claims of states in the areas of the preservation of the environment and
the right to development. The concept
*225 SCRA 792 (1993).
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encourages development in a manner and according to methods which do not
compromise the ability of future generation and other states to meet their needs.
The eloquent words of Justice Douglas in Sierra Club v. MortonX0 are often
quoted:
The voice of the inanimate object, therefore, should not be
stilled. That does not mean that the judiciary takes over the
management functions from the federal agency. It merely means that
before these priceless bits of Americana (such as a valley, an alpine
meadow, a river or a lake) are forever lost or are so transformed as to
be reduced to the eventual rubble of our urban environment, the voice
of the existing beneficiaries of these environmental wonders should
be heard.
Emerging principles.
Stockholm Declaration
Various principles of environmental protection are gradually being
developed and are coming out from various conferences. Notable is the Stockholm
Declaration of 1972 formulated in a UN Conference on the Human Environment
by 113 states.
The Conference calls upon Governments and peoples to exert common
efforts for the preservation and improvement of the human environment, for the
benefit of all the people and for their posterity.
Principles
States the common conviction that:
Principle 1
Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of
dignity and well-being, and he bears a solemn responsibility to protect and
improve the environment for present and future generations. In this respect,
policies promoting or perpetuating apartheid, racial segregation,
discrimination, colonial and other forms of oppression and foreign
domination stand condemned and must be eliminated.
10
405 US 727 (1972).
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Principle 2
The natural resources of the earth, including the air, water, land, flora
and fauna and especially representative samples of natural ecosystems, must
be safeguarded for the benefit of present and future generations through
careful planning or management, as appropriate.
Principle 3
The capacity of the earth to produce vital renewable resources must
be maintained and, wherever practicable, restored or improved.
Principle 4
Man has a special responsibility to safeguard and wisely manage the
heritage of wildlife and its habitat, which are now gravely imperilled by a
combination of adverse factors. Nature conservation, including wildlife,
must therefore receive importance in planning for economic development.
Principle 5
The non-renewable resources of the earth must be employed in such a
way as to guard against the danger of their future exhaustion and to ensure
that benefits from such employment are shared by all mankind.
Principle 6
The discharge of toxic substances or of other substances and the
release of heat, in such quantities or concentrations as to exceed the capacity
of the environment to render them harmless, must be halted in order to
ensure that serious or irreversible damage is not inflicted upon ecosystems.
The just struggle of the peoples of ill countries against pollution should be
supported.
Principle 7
States shall take all possible steps to prevent pollution of the seas by
substances that are liable to create hazards to human health, to harm living
resources and marine life, to damage amenities or to interfere with other
legitimate uses of the sea.
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Principle 8
Economic and social development is essential for ensuring a favorable
living and working environment for man and for creating conditions on
earth that are necessary for the improvement of the quality of life.
Principle 9
Environmental deficiencies generated by the conditions of underdevelopment and natural disasters pose grave problems and can best be
remedied by accelerated development through the transfer of substantial
quantities of financial and technological assistance as a supplement to the
domestic effort of the developing countries and such timely assistance as
may be required.
Principle 10
For the developing countries, stability of prices and adequate earnings
for primary commodities and raw materials are essential to environmental
management, since economic factors as well as ecological processes must
be taken into account.
Principle 11
The environmental policies of all States should enhance and not
adversely affect the present or future development potential of developing
countries, nor should they hamper the attainment of better living conditions
for all, and appropriate steps should be taken by States and international
organizations with a view to reaching agreement on meeting the possible
national and international economic consequences resulting from the
application of environmental measures.
Principle 12
Resources should be made available to preserve and improve the
environment, taking into account the circumstances and particular
requirements of developing countries and any costs which may emanate
from their incorporating environmental safeguards into their development
planning and the need for making available to them, upon their request,
additional international technical and financial assistance for this purpose.
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Principle 13
In order to achieve a more rational management of resources and thus
to improve the environment, States should adopt an integrated and
coordinated approach to their development planning so as to ensure that
development is compatible with the need to protect and improve
environment for the benefit of their population.
Principle 14
Rational planning constitutes an essential tool for reconciling any
conflict between the needs of development and the need to protect and
improve the environment.
Principle 15
Planning must be applied to human settlements and urbanization with
a view to avoiding adverse effects on the environment and obtaining
maximum social, economic and environmental benefits for all. In this
respect, projects which are designed for colonialist and racist domination
must be abandoned.
Principle 16
Demographic policies which are without prejudice to basic human
rights and which are deemed appropriate by Governments concerned should
be applied in those regions where the rate of population growth or excessive
population concentrations are likely to have adverse effects on the
environment of the human environment and impede development.
Principle 17
Appropriate national institutions must be entrusted with the task of
planning, managing or controlling the environmental resources of States
with a view to enhancing environmental quality.
Principle 18
Science and technology, as part of their contribution to economic and
social development, must be applied to the identification, avoidance and
control of environmental risks and the solution of environmental problems
and for the common good of mankind.
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Principle 19
Education in environmental matters, for the younger generation as
well as adults, giving due consideration to the underprivileged, is essential
in order to broaden the basis for an enlightened opinion and responsible
conduct by individuals, enterprises and communities in protecting and
improving the environment in its full human dimension. It is also essential
that mass media of communications avoid contributing to the deterioration
of the environment, but, on the contrary, disseminates information of an
educational nature on the need to project and improve the environment in
order to enable man to develop in every respect.
Principle 20
Scientific research and development in the context of environmental
problems, both national and multinational, must be promoted in all
countries, especially the developing countries. In this connection, the free
flow of up-to-date scientific information and transfer of experience must be
supported and assisted, to facilitate the solution of environmental problems;
environmental technologies should be made available to developing
countries on terms which would encourage their wide dissemination without
constituting an economic burden on the developing countries.
Principle 21
States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or of areas beyond the
limits of national jurisdiction.
Principle 22
States shall cooperate to develop further the international law
regarding liability and compensation for the victims of pollution and other
environmental damage caused by activities within the jurisdiction or control
of such States to areas beyond their jurisdiction.
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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Principle 23
Without prejudice to such criteria as may be agreed upon by the
international community, or to standards which will have to be determined
nationally, it will be essential in all cases to consider the systems of values
prevailing in each country, and the extent of the applicability of standards
which are valid for the most advanced countries but which may be
inappropriate and of unwarranted social cost for the developing countries.
Principle 24
International matters concerning the protection and improvement of
the environment should be handled in a cooperative spirit by all countries,
big and small, on an equal footing.
Cooperation through multilateral or bilateral arrangements or other
appropriate means is essential to effectively control, prevent, reduce and
eliminate adverse environmental effects resulting from activities conducted
in all spheres, in such a way that due account is taken of the sovereignty and
interests of all States.
Principle 25
States shall ensure that international organizations play a coordinated,
efficient and dynamic role for the protection and improvement of the
environment.
Principle 26
Man and his environment must be spared the effects of nuclear
weapons and all other means of mass destruction. States must strive to reach
prompt agreement, in the relevant international organs, on the elimination
and complete destruction of such weapons.
21st plenary meeting
16 June 1972
Rio Declaration
In 1992, the United Nations Conference on Environment and Development
sponsored another conference in Brazil It was attended
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329
by 170 states. The Conference came out with the Rio Declaration. The following
principles were enunciated:
Principle I
Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in harmony
with nature.
Principle 2
States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental and developmental policies,
and the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction.
Principle 3
The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.
Principle 4
In order to achieve sustainable development, environmental
protection shall constitute an integral part of the development process and
cannot be considered in isolation from it.
Principle 5
All States and all people shall cooperate in the essential task of
eradicating poverty as an indispensable requirement for sustainable
development, in order to decrease the disparities in standards of living and
better meet the needs of the majority of the people of the world.
Principle 6
The special situation and needs of developing countries, particularly
the least developed and those most environmentally vulnerable, shall be
given special priority. International actions in
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
the field of environment and development should also address the interests
and needs of all countries.
Principle 7
States shall cooperate in a spirit of global partnership to conserve,
protect and restore the health and integrity of the Earth’s ecosystem. In view
of the different contributions to global environmental degradation, States
have common but differentiated responsibilities. The developed countries
acknowledge the responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies place on the
global environment and of the technologies and financial resources they
command.
Principle 8
To achieve sustainable development and a higher quality of life for all
people, States should reduce and eliminate unsustainable patterns of
production and consumption and promote appropriate demographic policies.
Principle 9
States should cooperate to strengthen endogenous capacity building
for sustainable development by improving scientific understanding through
exchanges of scientific and technological knowledge, and by enhancing the
development, adaptation, diffusion and transfer of technologies, including
new and innovative technologies.
Principle 10
Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level. At the national level, each
individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on
hazardous materials and activities in their communities, and the opportunity
to participate in decisionmaking processes. States shall facilitate and
encourage public awareness and participation by making information widely
available. Effective access to judicial and administrative proceedings,
including redress and remedy, shall be provided.
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Principle 11
States shall enact effective environmental legislation. Environmental
standards, management objectives and priorities should reflect the
environmental and developmental context to which they apply. Standards
applied by some countries may be inappropriate and of unwarranted
economic and social cost to other countries, in particular developing
countries.
Principle 12
States should cooperate to promote a supportive and open international economic system that would lead to economic growth and
sustainable development in all countries, to better address the problems of
environmental degradation. Trade policy measures for environmental
purposes should not constitute a means of arbitrary or unjustifiable
discrimination or a disguised restriction on international trade. Unilateral
actions to deal with environmental challenges outside the jurisdiction of the
importing country should be avoided. Environmental measures addressing
trans-boundary or global environmental problems should, as far as possible,
be based on an international consensus.
Principle 13
States shall develop national law regarding liability and compensation
for the victims of pollution and other environmental damage. States shall
also cooperate in an expeditious and more determined manner to develop
further international law regarding liability and compensation for adverse
effects of environmental damage caused by activities within their
jurisdiction or control to areas beyond their jurisdiction.
Principle 14
States should effectively cooperate to discourage or prevent the
relocation and transfer to other States of any activities and substances that
cause severe environmental degradation or are found to be harmful to
human health.
Principle 15
In order to protect the environment, the precautionary approach shall
be widely applied by States according to their
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capabilities. Where there are threats of serious or irreversible damage, lack
of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.
Principle 16
National authorities should endeavour to promote the internalization
of environmental costs and the use of economic instruments, taking into
account the approach that the polluter should, in principle, bear the cost of
pollution, with due regard to the public interest and without distorting
international trade and investment.
Principle 17
Environmental impact assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant
adverse impact on the environment and are subject to a decision of a
competent national authority.
Principle 18
States shall immediately notify other States of any natural disasters or
other emergencies that are likely to produce sudden harmful effects on the
environment of those States. Every effort shall be made by the international
community to help States so afflicted.
Principle 19
States shall provide prior and timely notification and relevant
information to potentially affected States on activities that may have a
significant adverse trans-boundary environmental effect and shall consult
with those States at an early stage and in good faith.
Principle 20
Women have a vital role in environmental management and
development. Their full participation is therefore essential to achieve
sustainable development.
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Principle 21
The creativity, ideals and courage of the youth of the world should be
mobilized to forge a global partnership in order to achieve sustainable
development and ensure a better future for all.
Principle 22
Indigenous people and their communities and other local
communities have a vital role in environmental management and
development because of their knowledge and traditional practices. States
should recognize and duly support their identity, culture and interests and
enable their effective participation in the achievement of sustainable
development.
Principle 23
The environment and natural resources of people under oppression,
domination and occupation shall be protected.
Principle 24
Warfare is inherently destructive of sustainable development. States
shall therefore respect international law providing protection for the
environment in times of armed conflict and cooperate in its further
development, as necessary.
Principle 25
Peace, development and environmental protection are interdependent
and indivisible.
Principle 26
States shall resolve all their environmental disputes peacefully and by
appropriate means in accordance with the Charter of the United Nations.
Principle 27
States and people shall cooperate in good faith and in a spirit of
partnership in the fulfillment of the principles embodied in this Declaration
and in the further development of international law in the field of
sustainable development.
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Some treaties
The Stockholm and the Rio Declarations are just that, declarations. They do
not have the force of law. There exist, however, some conventions which are
legally binding on the parties. Some of these are:
In Articles 192-194 of the 1982 LOS there are prohibitions on marine
pollution.
The Vienna Convention for the Protection of the Ozone Layer of 1985 adopt
various measures for the protection of the “ozone layer,” the layer of atmospheric
ozone above the planetary boundary layer.
The United Nations Conference on Environment and Development, 1992,
seeks to achieve “stabilization of greenhouse gas concentration in the atmosphere
at a level that would prevent dangerous anthropogenic interference with the
climate system.”
The Kyoto Protocol, already ratified by 84 States as of 1 November 1999,
also seeks to protect the atmosphere.
There is also a Convention on International Trade in Endangered Species of
Wild Fauna and Flora, 1973, and also a Convention on Biological Diversity, 1992.
There are also regional conventions involving environmental matters such
as the Treaty of Rome of 1957 (European Union), a 1994 North American
Agreement on Environmental Cooperation, a 1991 Protocol on Environmental
Protection to the Antarctic Treaty of 1991, and the Amazon Declaration of 1989.
Chapter 17 INTERNATIONAL ECONOMIC LAW
What is international economic law?
Recent developments have made international economic law a distinct part
of international law. Beyond the regulation of interstate trade, the law has moved
into the creation of international institutions, formulation of definite rules
governing a wide range of economic matters, and the establishment of methods of
dispute resolution. Moreover, international economic law affects not only states
but also multi-national corporations. Likewise, globalization of economic matters
have affected traditional notions of sovereignty.
It can thus be seen that international economic law can involve a broad
range of transactions, regulations and litigation which cannot be adequately
reflected in one definitional formula. As one writer has noted, ninety percent of
international law activity is economic international law although it does not have
the glamour of such subjects as use of force, human rights, or intervention. The
(Third) restatement of Foreign Relations Law has this statement: “The law of
international economic relations in its broadest sense includes all the international
law and international agreements governing economic transactions that cross state
boundaries or that otherwise have implications for more than one state, such as
those involving the movement of goods, funds, persons, intangibles, technology,
vessels or aircraft.”
Because of this broad range, four characteristics can be pointed out. First,
IEL is obviously part of public international law. Treaties alone make this so.
Second, IEL is intertwined with muncipal law. The balancing of economic treaty
law with municipal law is important. Third, IEL requires multi-disciplinary
thinking involving as it does not only economics but also political science, history,
anthropology, geography,
335
336
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
etc. Fourth, empirical research is very important for understanding its operation.’
Important economic institutions.
After the Second World War, the economic advisers of the United States
and of England led an effort to establish mechanisms which could avoid the
repetition of the protectionist policies of the 1930s. The effort led to the Bretton
Woods Conference of 1944. The conference had two main objectives: first, to
advance the reduction of tariffs and other trade barriers, and second, to create a
global framework designed to minimize economic conflicts. Out of this
conference were bom the International Monetary Fund (IMF) whose function was
to provide short-term financing to countries in balance of payments difficulties;
the International Bank for Reconstruction and Development (World Bank)
designed to provide long-term capital to support growth and development; and the
International Trade Organization (ITO) which was intended to promote a liberal
trading system by proscribing certain protectionist trade rules.
The intended function of the ITO was eventually taken over by the General
Agreement on Tariff and Trade (GATT) and its successor the World Trade
Organization (WTO). The GATT and the WTO are the most important trade
oriented institutions. They shape domestic import and export laws which impact
on international trade on goods and services.
GATT went through a series of modifications Rounds with the Uruguay
Round of 1994 as the final one. The final agreement proposed the establishment of
a World Trade Organization (WTO) which would oversee the operation of GATT
and a new General Agreement on Trade and Services.
Key Principles of International Trade Law.
1.
Agreed tariff levels. The GATT contains specified tariff levels for
each state. Each state agrees not to raise tariff levels above those contained in the
schedule. But these can be renegotiated.
'See Martin Dixon and Robert McCorquadale, CASES
Limited, 1991.
AND
MATERIALS
ON I NTERNATIONAL
LAW
485-524 Blackstone Press
CHAPTER 17
INTERNATIONAL ECONOMIC LAW
337
2.
The most favored nation principle (MFN). The MFN clause embodies
the principle of non-discrimination. The principle means that any special treatment
given to a product from one trading partner must be made available for like
products originating from or destined for other contracting partners. In practice,
this generally refers to tariff concessions.
3.
Principle of national treatment. This prohibits discrimination between
domestic producers and foreign producers. In practice, this means that once
foreign producers have paid the proper border charges, no additional burdens may
be imposed on foreign products.
4.
Principle of tariffication. This principle prohibits the use of quotas on
imports or exports and the use of licenses on importation or exportation. The
purpose of the principle is to prevent the imposition of non-tariff barriers. But
GATT provides for exceptions on a quantitative and temporary basis for balance
of payments or infant industry reasons in favor of developing states.
Exceptions to key principles.
The GATT itself contains many exceptions to the key principles. Some of
the exceptions are general in nature such as those referring to public morals,
public health, currency protection, products of prison labor, national treasures of
historic, artistic or archeological value, and protection of exhaustible natural
resources. There are also security exceptions and regional trade exceptions. Of
special significance for the Philippines are the exceptions for developing nations.
TANADAV. ANGARA
G.R. 118295, May 2,1997
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself
has some built-in advantages to protect weak and developing
economies, which comprise the vast majority of its members. Unlike
in the UN where major states have permanent seats and veto powers
in the Security Council, in the WTO, decisions are made on the basis
of sovereign equality, with each member’s vote equal in weight to
that of any other. There is no WTO equivalent of the UN Security
Council.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
“WTO decides by consensus whenever possible, otherwise,
decisions of the Ministerial Conference and the General Council shall
be taken by the majority of the votes cast, except in cases of
interpretation of the Agreement or waiver of the obligation of a
member which would require three fourths vote. Amendments would
require two thirds vote in general. Amendments to MFN provisions
and the Amendments provision will require assent of all members.
Any member may withdraw from the Agreement upon the expiration
of six months from the date of notice of withdrawals.”
Hence, poor countries can protect their common interests more
effectively through the WTO than through one-on-one negotiations
with developed countries. Within the WTO, developing countries can
form powerful blocs to push their economic agenda more decisively
than outside the Organization. This is not merely a matter of practical
alliances but a negotiating strategy rooted in law. Thus, the basic
principles underlying the WTO Agreement recognize the need of
developing countries like the Philippines to “share in the growth in
international trade commensurate with the needs of their economic
development.” These basic principles are found in the preamble of the
WTO Agreement as follows:
“The Parties to this Agreement,
Recognizing that their relations in the field of trade and
economic endeavor should be conducted with a view to raising
standards of living, ensuring full employment and a large and steadily
growing volume of real income and effective demand, and expanding
the production of and trade in goods and services, while allowing for
the optimal use of the world’s resources in accordance with the
objective of sustainable development, seeking both to protect and
preserve the environment and to enhance the means for doing so in a
manner consistent with their respective needs and concerns at
different levels of economic development.
Recognizing further that there is need for positive efforts
designed to ensure that developing countries, and especially the least
developed among them, secure a share in the growth in international
trade commensurate with the needs of their economic development.
Being desirous of contributing to these objectives by entering
into reciprocal and mutually advantageous arrangements directed to
the substantial reduction of tariffs and other barriers to trade
CHAPTER 17
INTERNATIONAL ECONOMIC LAW
and to the elimination of discriminatory treatment in international
trade relations.
Resolved, therefore, to develop an integrated, more viable and
durable multilateral trading system encompassing the General
Agreement on Tariffs and Trade, the results of past trade liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiations.
Determined to preserve the basic principles and to further the
objectives underlying this multilateral trading system, . . (emphasis
supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and
consistent with the foregoing basic principles, the WTO Agreement
grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign
competition. Thus, with respect to tariffs in general, preferential
treatment is given to developing countries in terms of the amount of
tariff reduction and the period within which the reduction is to be
spread out. Specifically, GATT requires an average tariff reduction
rate of 36% for developed countries to be effected within a period of
six (6) years while developing countries — including the Philippines
— are required to effect an average tariff reduction of only 24%
within ten (10) years.
In respect to domestic subsidy, GATT requires developed
countries to reduce domestic support to agricultural products by 20%
over six (6) years, as compared to only 13% for developing countries
to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT
requires developed countries to reduce their budgetary outlays for
export subsidy by 36% and export volumes receiving export subsidy
by 21% within a period of six (6) years. For developing countries,
however, the reduction rate is only two-thirds of that prescribed for
developed countries and a longer period of ten (10) years within
which to effect such reduction.
Moreover, GATT itself has provided built-in protection from
unfair foreign competition and trade practices including antidumping
measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these measures.
339
340
INTRODUCTION TO PUBLIC INTERNATIONAL LAW
There is hardly therefore any basis for the statement that under the
WTO, local industries and enterprises will all be wiped out and that
Filipinos will be deprived of control of the economy. Quite the
contrary, the weaker situations of developing nations like the
Philippines have been taken into account; thus, there would be no
basis to say that in joining the WTO, the respondents have gravely
abused their discretion. True, they have made a bold decision to steer
the ship of state into the yet uncharted sea of economic liberalization.
But such decision cannot be set aside on the ground of grave abuse of
discretion, simply because we disagree with it or simply because we
believe only in other economic policies. As earlier stated, the Court in
taking jurisdiction of this case will not pass upon the advantages and
disadvantages of trade liberalization as an economic policy. It will
only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion.
Dispute Resolution.
A Dispute Settlement Body (DSB) has been established by the WTO
Agreement. It consists of the General Council of the WTO and operates under the
Understanding on Rules and Procedures Governing the Settlement of Disputes
1994 (DSU). Each state has a right to the establishment of a Panel. The DSU has
also provided for a permanent Appellate Body, consisting of persons with
recognized expertise in law, to handle appeals from a Panel decision.
Expanding Scope of International Economic Law.
The Uruguay Round of 1994 has expanded the scope of the multilateral
trade regime. It now includes intellectual property, services, sanitary and
physiosanitary measures and investment, as well as the strengthening of the rules
on subsidies, countervailing duties and antidumping.
As can readily be seen, IEL has become a very specialized field. Most
significantly too, it is affecting the sovereignty of states and their capacity to give
force to national policy objectives.
I
Philippine Copyright, 2009
by
JOAQUIN G. BERNAS, S.J.
ISBN 978-971-23-5351-2
No portion of this book may be copied or reproduced
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anf^vhd Ijks no authority to dispose of the same. 1
ALL RIGHTS RESERVED BY THE AUTHOR
No.
Reprinted: September 2012
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ISBN 978-971-23-5351-2
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INTRODUCTION
TO
PUBLIC INTERNATIONAL
LAW
JOAQUIN G. BERNAS, S J.
Jesuit Residence Ateneo de Manila University Loyola Heights,
Quezon City Philippines
CONTENTS
Chapter 1 — THE NATURE OF INTERNATIONAL LAW
What is international Law? ............................................................................
Scope of international law .............................................................................
Is international law a law? .............................................................................
Some theories about international law ...........................................................
Public and private international law ...............................................................
Brief historical development of international law ..........................................
From Ancient law to the League of Nations ..........................................
From the end of World War II to the end of the Cold War ....................
The end of the Cold War ......................................................................
1
1
2
3
4
4
4
5
6
Chapter 2 — THE SOURCES OF INTERNATIONAL LAW
What sources are............................................................................................
Custom or customary law ..............................................................................
The material factor: Practice of states or usus .....................................
Opinio juris ..........................................................................................
Dissenting states; subsequent contrary practice ...................................
Evidence of state practice and opinio juris ...........................................
“Instant custom ”.................................................................................
Usu and opinio juris in Humanitarian Law:
The Martens Clause ...................................................................
Treaties ..........................................................................................................
Treaties and custom .............................................................................
General principles of law recognized by civilized nations .............................
Judicial decisions ...........................................................................................
The teachings of highly qualified writers and “Publicists.”............................
Equity ............................................................................................................
Other supplementary evidence .......................................................................
UN Resolutions ....................................................................................
“Soft Law" ...........................................................................................
8
10
10
12
13
14
14
15
15
16
17
19
19
20
21
21
21
Chapter 3 — THE LAW OF TREATIES
Definition of treaties ......................................................................................
Quatar v. Bahrain, ICJ 1994 ...............................................................
iii
22
23
Function of treaties ........................................................................................
The making of treaties ...................................................................................
Negotiation ..........................................................................................
Power to negotiate ...............................................................................
Authentication of text ...........................................................................
Consent to be bound.............................................................................
Accession to a treaty ............................................................................
Reservations ........................................................................................
The Philippines and the 1982 Convention on the
Law of the Sea ...........................................................................
Reservations in Human Rights Treaties ................................................
Entry into force of treaties....................................................................
Application of treaties ..........................................................................
Interpretation of treaties ......................................................................
Air France v. Saks, 470 US 392 ...........................................................
Invalidity of Treaties .....................................................................................
Amendment and Modification of Treaties .....................................................
Amendment ..........................................................................................
Modification.........................................................................................
Termination of Treaties .................................................................................
Material breach ...................................................................................
Supervening impossibility of performance ............................................
Rebus sic stantibus ...............................................................................
Fisheries Jurisdiction Case (United Kingdom v. Iceland) ....................
Namibia Case ......................................................................................
Danube Dam Case (Hungary v. Slovakia) ............................................
Procedure for the Termination of Treaties ...........................................
Authority to Terminate .........................................................................
Succession to treaties ....................................................................................
27
28
28
28
29
29
31
32
35
36
37
38
38
40
42
44
45
46
46
46
47
48
49
50
52
54
55
56
Chapter 4 — INTERNATIONAL LAW AND MUNICIPAL LAW
Dualism vs. Monism .....................................................................................
Municipal Law in International Law .............................................................
International Law in Domestic Law ..............................................................
Conflict between International Law and Domestic Law:
International Rule ......................................................................
Conflict between International Law and Domestic Law:
Municipal Rule ..........................................................................
Head Money Cases: Edye v. Robertson................................................
Whitney v. Robertson ...........................................................................
58
59
60
62
63
66
68
Chapter 5 — SUBJECTS OF INTERNATIONAL LAW: STATES
Subjects of International Law ........................................................................
71
States: Commencement of their Existence .....................................................
People or Population............................................................................
Territory ...............................................................................................
Government ..........................................................................................
Sovereignty ...........................................................................................
Self-Determination ...............................................................................
Recognition of States .....................................................................................
Recognition of Government...........................................................................
The Tinoco Arbitration .........................................................................
Upright v. Mercury Business Machines Co...........................................
Consequences of Recognition or Non-recognition .........................................
Succession of States.......................................................................................
Succession or Continuity ......................................................................
Succession of States ..............................................................................
Fundamental Rights of States ........................................................................
Independence .......................................................................................
Equality ................................................................................................
Peaceful co-existence ...........................................................................
Some incomplete Subjects .............................................................................
72
72
72
73
73
73
74
77
78
79
80
81
81
82
84
84
84
85
85
Chapter 6 — OTHER SUBJECTS OF INTERNATIONAL LAW
International Organizations............................................................................
87
Immunities ............................................................................................
89
The United Nations: Structure and Powers ...........................................
93
General Assembly .................................................................................
94
Security Council ...................................................................................
95
ECOSOC ..............................................................................................
95
Trusteeship Council ..............................................................................
95
Secretariat ............................................................................................
95
International Court of Justice ...............................................................
96
Other Agencies .....................................................................................
96
Regional Organizations: ASEAN ..........................................................
96
Insurgents ......................................................................................................
98
Protocol II ............................................................................................
98
Common Article 3.................................................................................
99
National Liberations Movements ................................................................... 100
Individuals ..................................................................................................... 101
Chapter 7 — TERRITORY: LAND, AIR, OUTER SPACE
Territory in International Law........................................................................
Modes of Acquisition of Sovereignty over Territory .....................................
Discovery and Occupation ...................................................................
The Island of Palmas ............................................................................
103
103
103
104
Prescription .........................................................................................
Cession ................................................................................................
Conquest..............................................................................................
Accretion and Avulsion ........................................................................
Is contiguity a mode of acquisition ? ....................................................
Intertemporal Law ...............................................................................
Airspace ........................................................................................................
Outer space....................................................................................................
112
112
112
113
113
113
114
116
Chapter 8 — TERRITORY: LAW OF THE SEA
Territorial Sea................................................................................................
Baselines: “normal" or “straight" .......................................................
Sovereignty over Territorial Sea ..........................................................
Internal waters ...............................................................................................
Archipelagic waters .......................................................................................
Bays .............................................................................................................
Contiguous zone ............................................................................................
Exclusive economic zone or “patrimonial sea.”.............................................
The Continental (Archipelagic) Shelf ............................................................
The Deep Seabed: “Common Heritage of Mankind.” ....................................
Islands ...........................................................................................................
The High Seas ...............................................................................................
Hot Pursuit ..........................................................................................
Settlement of Disputes...................................................................................
120
120
122
124
124
126
127
127
128
128
129
129
130
131
Chapter 9 — JURISDICTION OF STATES
The Territoriality Principle ............................................................................
Effects Doctrine ...................................................................................
The Lotus Case ....................................................................................
Jurisdiction over foreign vessels in Philippine Territory ......................
Trail Smelter Arbitration .....................................................................
The Nationality Principle...............................................................................
Blackmer v. United States ....................................................................
Effective Nationality Link.....................................................................
The Nottebohm Case ............................................................................
Decision ..............................................................................................
Stateless persons ..................................................................................
Mejoff v. Director of Prisons................................................................
The Protective Principle ................................................................................
The Universality Principle .............................................................................
Filartiga v. Pena-Irala .........................................................................
Attorney General of Israel v. Eichmann ...............................................
vi
133
133
134
137
138
140
140
142
142
143
151
151
156
157
160
162
Eichmann v. Attorney-General of Israel ...............................................
The Passive Personality Principle ..................................................................
United States v. Fawaz Yunis ...............................................................
Conflicts of Jurisdiction .................................................................................
The Balancing Test...............................................................................
International Comity ............................................................................
Forum non conveniens .........................................................................
Extradition .....................................................................................................
United States v. Alvarez-Machain ........................................................
Secretary of Justice v. Hon. Ralph C. Lantion ......................................
Bail in extradition cases .......................................................................
164
167
167
172
173
173
173
174
174
180
190
Chapter 10 — IMMUNITY FROM JURISDICTION
Immunity from jurisdiction ............................................................................
Immunity of head of state ..............................................................................
The Pinochet Case: Background ..........................................................
Regina v. Bartle and The Commissioner of Police................................
State Immunity ..............................................................................................
Republic of Indonesia v. Vinzon ...........................................................
Diplomatic and consular immunities..............................................................
Diplomatic immunities ..................................................................................
Consuls and consular communities ................................................................
US Diplomatic and Consular Staff in Iran Case ...................................
Immunity of International Oiganizations .......................................................
The Act of State Doctrine ..............................................................................
192
192
192
193
195
198
203
204
211
216
219
219
Chapter 11 — STATE RESPONSIBILITY
Protection of Aliens .......................................................................................
Corporations and Shareholders ...........................................................
Standard for the Protection of Aliens....................................................
Enforcement Regimes ...........................................................................
Doctrine of State Responsibility ....................................................................
Internationally wrongful act ...........................................................................
Attribution to the State...................................................................................
Acts of state organs ..............................................................................
Claire Claim ........................................................................................
Corfu Channel Case .............................................................................
Nicaragua v. US ..................................................................................
United States v. Iran ............................................................................
Acts of Revolutionaries.........................................................................
Home Missionary Society Claim ..........................................................
Short v. Iran.........................................................................................
vii
223
224
225
227
227
227
228
229
230
232
235
239
241
242
243
Preliminary Objections ................................................................................... 244
Reparation ...................................................................................................... 244
Chorzow Factory Case ......................................................................... 245
Calvo Clause Rejected.................................................................................... 246
Expropriation of Alien Property ..................................................................... 247
Chapter 12 — INTERNATIONAL HUMAN RIGHTS LAW
From Alien Rights to Human Rights .............................................................. 248
An Emerging International Bill of Human Rights .......................................... 249
The Covenant on Civil and Political Rights.................................................... 252
Torture, ill-treatment and prison conditions.......................................... 254
Freedom of Movement .......................................................................... 254
Legal personality, privacy and the family.............................................. 256
Thought, conscience, religion, expression and political freedoms.. 257
Associations and unions........................................................................ 257
Minorities ............................................................................................. 257
Self-determination of peoples ................................................................ 258
Optional Protocol on the Covenant on Civil and Political Rights ................... 259
The Covenant on Economic, Social and Cultural Rights ................................ 260
The Duty to Implement .................................................................................. 261
Other Conventions on Human Rights ............................................................. 263
Customary human rights law .......................................................................... 263
International Implementation of Human Rights Law...................................... 263
The 1503 procedure or confidential procedure ..................................... 264
The 1235 procedure .............................................................................. 264
The International Criminal Court ................................................................... 265
Chapter 13 — PEACEFUL SETTLEMENT OF INTERNATIONAL
DISPUTES
The meaning of international “dispute.” ......................................................... 267
Peaceful methods of settling disputes ............................................................. 267
Non-judicial or diplomatic methods ............................................................... 268
Negotiation ........................................................................................... 268
Mediation ............................................................................................. 269
Inquiry .................................................................................................. 269
Conciliation .......................................................................................... 269
Quasi-judicial Method .................................................................................... 269
Arbitration ............................................................................................ 269
Arbitral decisions ................................................................................. 270
Judicial method: the International Court of Justice (ICJ) ................................ 271
Composition of the Court ............................................................................... 271
Jurisdiction of the ICJ: Contentious jurisdiction ............................................. 273
viii
Aerial Incidence Case ..........................................................................
Nicaragua v. US ..................................................................................
Case Concerning East Timor ...............................................................
Provisional Measure ......................................................................................
Nicaragua v. US...................................................................................
Intervention ...................................................................................................
El Salvador v. Hounduras ....................................................................
Obligation to comply with decisions..............................................................
Advisory jurisdiction .....................................................................................
Other more active International Courts ..........................................................
275
276
278
282
282
287
288
291
292
294
Chapter 14 — THE USE OF FORCE SHORT OF WAR
The Use of Force ...........................................................................................
The threat of force .........................................................................................
Individual and collective self-defense ............................................................
Traditionally allowable coercive measures ....................................................
Protection of nationals abroad .......................................................................
Humanitarian intervention .............................................................................
295
297
298
301
302
302
Chapter 15 — THE LAW OF WAR (INTERNATIONAL HUMANITARIAN
LAW)
International Humanitarian Law ....................................................................
The Hague Law .............................................................................................
The Geneva Conventions of 1949..................................................................
Customary and Conventional Law.................................................................
Commencement and Termination of Hostilities ....................................
Protocol 1 ............................................................................................
Methods of Warfare: Jus in Bello ..................................................................
Neutrality.......................................................................................................
Non-international conflicts ............................................................................
Civil wars ............................................................................................
Common Article 3 ................................................................................
Protocol II ...........................................................................................
International Terrorism ..................................................................................
307
308
308
308
309
310
310
314
315
315
315
316
317
Chapter 16 — INTERNATIONAL ENVIRONMENTAL LAW
Environmental concerns ................................................................................
Environmental concerns.......................................................................
Who have environmental rights? ...................................................................
“Sustainable Development.” ..........................................................................
Emerging principles.......................................................................................
Stockholm Declaration .........................................................................
ix
320
321
322
322
323
323
Principles ............................................................................................ 323
Rio Declaration ................................................................................... 328
Chapter 17 — INTERNATIONAL ECONOMIC LAW
What is international economic law? .............................................................
Important economic institutions ....................................................................
Key principles of International Trade Law ....................................................
Exceptions to key principles ..........................................................................
Tafiada v. Angara ................................................................................
Dispute Resolution ........................................................................................
Expanding Scope of International Economic Law .........................................
x
335
336
336
337
337
340
340