CHAPTER 1
THE NATURE OF INTERNATIONAL LAW
What is International Law?
 A body of rules and principles of action which are binding upon
civilized states in their relation to one another
 A law which deals with the conduct of the states and of international
organizations and with their relations inter se, as well as with some of
their relations with persons, whether natural or juridical
Scope of International Law
a. Regulation of space expeditions
b. Division of the ocean floor
c. Protection of human rights
d. Management of international financial system
e. Regulation of the environment
f. Preservation of peace
Some Theories about International Law
Consensual Theory
Austin: Law consists of commands originating from a
sovereign and backed up by threats of sanction if
disobeyed
International law is not law because it does not
come from a command of a sovereign
International law derives its binding force from the
consent of states
Treaties—expression of consent
Natural Law Theory
Custom—voluntary adherence to common practices,
is seen as expression of consent
Law is derived by reason from the nature of man
International law—application of natural reason to
the nature of the state-person
叶清蓮 & DSP
Pragmatic Theory
Public International Law v. Private International Law
Is International Law a Law?
 Henkin: It is probably the case that almost all nations observe all
principles of international law and almost all of their obligations
almost all of the time
 Brierly: The ultimate explanation of the binding force of all law is that
man, whether he is a single individual or whether he is associated with
other men in a state, is constrained, in so far as he is reasonable
being, to believe that order and not chaos is the governing principle of
the world in which he lives
Command Theory
Some Dissenters
Customary law—what are regarded as generally
accepted principles of law are in fact an expression
of what traditionally was call natural law
International law—a combination of politics,
morality and self-interest hidden under the
smokescreen of legal language
International law is law because it is seen as such by
states and other subjects of international law
Public International Law
Referred to as International Law
Governs the relationship between and
among states and also their relations
with international organizations and
individual persons
CHAPTER 2
Private International Law
Referred to as Conflict of Laws
Domestic law which deals with cases
where foreign law intrudes in the
domestic sphere where there are
questions of the applicability of
foreign law or the role of foreign
courts
SOURCES OF INTERNATIONAL LAW
What Sources are
Domestic Laws—found in statute books and in collections of court decisions
Classifications of Sources
1. Formal sources—various processes by which rules come into existence
a. Legislation
b. Treaty making
c. Judicial decision making
d. Practice of states
2. Material sources—identify what the obligations are
a. State practice
d. Judicial decisions
b. UN Resolutions
e. Writings of jurists
c. Treaties
Art. 38(1) of the Statute of the International Court of Justice
1. International conventions—establishing rules expressly recognized by
contesting states
2. International custom—evidence of a general practice accepted as law
3. General principles of law recognized by civilized nations
4. Subsidiary means for determination of rules of law
a. Judicial decisions
b. Teachings of the most highly qualified publicists
Public International Law
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Restatement of Foreign Relations Law of the US
1. Customary Law
2. International agreement
3. General principles common to the major legal system
the law of nations as they result from: usages of civilized people,
laws of humanity & public conscience
2.
Sources of International Law
1. Custom
4. Generally recognized principles of law
2. Treaties
5. Judicial decisions
3. International agreements 6. Teachings of highly qualified publicists
Custom or Customary Law
 A general and consistent practice of states followed by them from a
sense of legal obligation
 Elements:
1. Material factor—how state behaves
o Elements of Practice of sates or usus
a. Duration—may be either short or long; not the most
important element
b. Consistency—continuity and repetition
c.
Generality of the practice of states—uniformity and
generality of practice need not be complete but it must
be substantial
Opinio Juris—belief that a certain form of behavior is obligatory
Dissenting states: subsequent contrary practice
o Dissenting states are bound by custom unless they had
consistently objected to it while the custom was merely in the
process of formation
o It is also possible that after a practice has been accepted as
law, contrary practice might arise
Treaties
 Determine the rights and duties of states just as individual rights are
determined by contracts
 Binding force comes from the voluntary decision of sovereign states to
obligate themselves to a mode of behavior
Treaties and Custom
 If the treaty is intended to be declaratory of customary law, it may be
seen as evidence of customary law
 Adherence to treaties can be indicative also of adherence to practice
as opinio juris
 If treaty comes later than a particular custom, treaty should prevail
 If a later treaty is contrary to a customary rile that has the status of
jus cogens, custom will prevail
 The later custom, being the expression of a later will, should prevail
 A treaty is void if, at the time of its conclusion, it conflicts with a
preemptory norm of general international law
 Preemptory norm of general international law = a norm accepted and
recognized by the international community of States as a whole as a
norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law
having the same character
General Principles of Law Recognized by Civilized Nations
 This has reference to principles of municipal law common to the legal
systems of the world
Judicial Decisions
 Decisions of the court have no binding force except between the
parties and in respect of that particular case
 Decisions do not constitute stare decisis
 Decisions of the ICJ are not only regarded as highly persuasive in
international circles but they have also contributed to the formulation
of principles that have become international law
Evidence of state practice and opinio juris
a. Treaties
b. Diplomatic correspondence
c. Statements of national leaders and political advisers
d. Conduct of states
Instant Custom
o A spontaneous activity of a great number of states supporting
a specific line of action
The Martens Clause
Until a complete code of laws of war has been issued, inhabitants
& belligerents are protected under the rule on the principles of
叶清蓮 & DSP
Psychological or subjective factor—why they behave the way they
do
Teachings of Highly Qualified Writers and “Publicists”
 Publicists = institutions which write on international law
a. The International Commission
b. The Institut de Droit International
c. International Law Association
d. Restatement of Foreign Relations Law of the US
e. Annual publication of the Hague Academy of International Law
Public International Law
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Equity
 When accepted, is an instrument whereby conventional or customary
law may be supplemented or modified in order to achieve justice
 Where 2 parties have assumed an identical or a reciprocal obligation,
one party which is engaged in a continuing non-performance of that
obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party
 The Court’s recognition of equity as part of international law is in no
way restricted by the special power conferred upon it to decide a case
ex aequo et bono, if the parties agree thereto
 Kinds of Equity:
1. Intra legem—within the law; the law is adapted to the facts of the case
2. Praeter legem—beyond the law; used to fill the gaps within the law
3. Contra legem—against the law; refusal to apply the law which is seen
as unjust
Other Supplementary Evidence
1. UN Resolutions—generally considered merely recommendatory but if
they are supported by all the states, they are an expression of opinio
juris communis
2. Soft Law—―Non-treaty Agreements‖; international agreements not
concluded as treaties and therefore not covered by the Vienna
Convention on the Law of Treaties
o Administrative Rules—guide the practice of states in relation
to international organizations
CHAPTER 3
THE LAW OF TREATIES
Various names of Treaties
a. Conventions
c. Covenants
b. Pacts
d. Charters
e. Protocols
f. Concordat
g. Modus vivendi
1969 Vienna Convention on the Law of Treaties
 Governs treaties between states
 Entered into force in January 1980
Definition of Treaties
 An international agreement concluded between States in written form
and governed by international law, whether embodied in a single
instrument or in 2 or more related instruments and whatever its
particular designation
 Even oral agreement can be binding, however, only written
agreements that are new, come under the provisions of the Vienna
Convention
 Characteristics to make it binding:
1. Commitment was very specific
2. There was a clear intent to be bound
叶清蓮 & DSP
Functions of Treaties
a. Sources of international law
b. Charter of international organizations
c. Used to transfer territory, regulate commercial relations, settle
disputes, protect human rights, guarantee investments
Different Kinds of Treaties
Multilateral Treaties
Treaties that create
Collaborative
Mechanism
Bilateral Treaties
Open to all states of the world; Create the norms
which are the basis for a general rule of law
Can either be Codification Treaties or ―Law Making
Treaties‖, or both
Operate through the organs of the different states
1. Universal scope
2. Regional
In the nature of contractual agreements which create
shared expectations such as trade agreements of
various forms; ―Contract Treaties‖
The Making of Treaties
1. Negotiation—foreign ministries, diplomatic conferences
2. Power to negotiate
3. Authentication of text—signing of the document; so that states will know
the contents & avoid misunderstanding
4. Consent to be bound:
a. Signature
e. Approval
b. Exchange of Instruments
f. Accession
c. Ratification
g. Other means if so agreed
d. Acceptance
5. Accession to a treaty—states which did not participate in the initial
negotiation may express their consent to be bound
6. Reservations—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 the State
7. Entry into force of treaties—date agreed or once consent given (but
provisional application can also apply)
8. Application of treaties
o PACTA SUNT SERVANTA—every treaty in force is BINDING upon the
parties and must be PERFORMED by them in GOOD FAITH
o A party may NOT INVOKE INTERNAL LAW as justification for its
failure to perform a treaty
o It is binding upon each party in respect of its entire territory unless a
different intention appears in the treaty or is otherwise established
9. Interpretation of Treaties
a. Objective approach—interpretation according to the ordinary
meaning of the words
Public International Law
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b. Teleological approach—interpretation according to the telos or
purpose of the treaty
c. Subjective approach—honors special meaning given by the parties
Invalidity of Treaties
1. 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
2. Fraud—State has been induced to conclude a treaty
3. Corruption of a Representative of a State
4. Coercion of a Representative of a State
5. Coercion of a State by the threat or use of force
6. Violation of jus cogens—treaty is void if, at the time of its conclusion,
it conflicts with a preemptory norm of general international law
Amendment and Modification of Treaties
 Amendment—formal revision done with the participation, at least in its
initial stage, by all the parties to the treaty
 Modification—involves only some parties
Termination of Treaties
 Terminated or suspended according to the terms of the treaty or with
the consent of the parties
1. Material Breach
a. Repudiation of the treaty not sanctioned by the present
Convention
b. Violation of a provision essential to the accomplishment of the
object or purpose of the treaty
2. Supervening Impossibility of Performance
o Results from the permanent disappearance or destruction of
an object indispensable for the execution of the treaty
3. Rebus sic stantibus
o Resulted in a radical transformation of the extent of the
obligations imposed by it, may, under certain conditions,
afford the party affected a ground for invoking the
termination or suspension of the treaty
Procedure for the Termination of Treaties
1. Notify other parties of ground and measure proposed
2. If no objection, carry out the measure proposed
3. If there is an objection, follow Art. 33
Authority to Terminate
 Belongs to the one who has authority to enter into the treaty
 In the Philippines, authority to conclude treaties is shared between the
Senate and the President
叶清蓮 & DSP
Succession to Treaties
Clean Slate Rule: newly independent state is not bound to maintain in
force or to become a party to any treaty by reason only of the fact that at
the date of the succession of states, the treaty was in force in respect of
the territory to which the succession of state relates
CHAPTER 4
INTERNATIONAL LAW AND MUNICIPAL LAW
Dualism v. Monism
Dualist
or
Pluralist Theory
*when
international and
municipal law are
in
conflict,
Municipal
law
must prevail
Monism
or
Monistic Theory
*International and
Municipal
laws
belong to only
one system of law
Municipal Law
International Law
Product
of
local Treaties and custom
custom
or
of grown among states
legislation
As
to Regulates relations Regulates
relations
relations
between
individual between states
they
persons under the
regulate
state
As to their Law of sovereign Law
between
substance
over individuals
sovereign states
Two theories:
A. Municipal law subsumes and is superior to
international law
B. International law is superior to Domestic Law
(supported by Kelsen)
As
to
source
Municipal Law in International Law
 Follows the dualist tradition and blocks domestic law from entry into
the international arena
 A state which has violated a provision of international law cannot
justify itself by recourse to its domestic law
 A state which has entered into an international agreement must
modify its law to make it conform to the agreement
International Law in Domestic Law
 How does international law become part of domestic law for dualists?
1. Doctrine of Transformation
o It must be expressly and specifically transformed into
domestic law through the appropriate constitutional
machinery such as an act of Congress or Parliament
o Treaties do not become part of the law of a state unless it is
consented to by the state
2. Doctrine of Incorporation
o They become part of the law of the land
Public International Law
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 Philippines adheres to the dualist theory and at the same time adopts
the incorporation theory and thereby makes international law part of
domestic law
 International law can be used by Philippine courts to settle domestic
disputes
 Art. 2, Sec. 2 of the Constitution: only customary law and treaties
which have become part of customary law become part of Philippine
law by incorporation
Commencement of their Existence
 State, as a person of international law, should possess the following
qualifications: (Montevideo Convention of 1933 on Rights and Duties of
States)
1. Permanent population—PEOPLEa community of persons
sufficient in number and capable of maintain the permanent
existence of the community and held together by a common bond
of law
Conflict between International Law and Domestic Law: International Rule
 Before an international tribunal, a state may not plead its own law as
an excuse for failure to comply with international law
 Exception: Art. 46 of Vienna Convention = in cases where the
constitutional violation was manifest and concerned a rule of its
internal law of fundamental importance
 Manifest = objectively evident to any State conducting itself in the
matter in accordance with normal practice and in good faith
2. Defined territory—an entity may satisfy this requirement even if
its boundaries have not been finally settled, if one or more of its
boundaries are disputed, or if some of its territory is claimed by
another state
 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
3. Government—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
 It is the National Government that has legal personality and it is
such that is internationally responsible for the actions of other
agencies and instrumentalities of the state
 Temporary absence of government does not terminate the
existence of a state
Conflict between International Law and Domestic Law: Municipal Rule
 Domestic courts are bound to apply the local law
 Should a conflict arise between an international agreement and the
Constitution, the treaty would not be valid and operative as domestic
law
 Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the
Supreme Court to declare a treaty unconstitutional; however, even if
declared unconstitutional, the treaty will not lose its character as an
international law
CHAPTER 5
SUBJECTS OF INTERNATIONAL LAW
STATES
Subjects of International Law—entities endowed with rights and obligations in
the international order and possessing the capacity to take certain kinds of
action on the international plane
 Those with international personality
Objects of International Law—those who indirectly have rights under or are
beneficiaries of international law through subjects of international law
States—predominant actors; a community of persons more or less numerous,
permanently occupying a definite portion of territory, independent of external
control, and possession an organized government to which the great body of
inhabitants render habitual obedience
4. Capacity to enter into relations with other
SOVEREIGNTYindependence from outside control
States—
 Principle of Self-determination—sovereignty as an element of a state
is related but not identical to this principleby virtue of this, people
freely determine their political status and freely pursue their
economic, social and cultural development
Levels of claim to Self-determination
1. Establishment of New State—the claim by a group within an
established state to break away and form an new entity
2. Does not involve Establishment of New State—simply involves claims
a. To be free from external coercion
b. To overthrow effective rulers and establish a new government—the
assertion of the right of revolution
c. Of people within an entity to be given autonomy
 International law has not recognized a right of secession from a
legitimately existing state
Recognition of States—the act of acknowledging the capacity of an entity to
exercise rights belonging to statehood
叶清蓮 & DSP
Public International Law
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Can an entity claim to be a state before it is recognized by other states?
Declaratory Theory
Constitutive Theory
Recognition is merely ―declaratory‖ of Recognition ―constitutes‖ a state
the existence of the state
Its being a state depends upon its It is what makes a state a state and
possession of the required elements confers legal personality on the entity
and not upon recognition
States may decide to recognize an
entity as a state even if it does not
have all the elements of a state
o
4.
Succession of States
 Views on Succession
A. The new state succeeds to no rights or obligations of the
predecessor state but begins with a tabula rasa
B. Successor state assumes all obligations and enjoys all the rights of
the predecessor
Issues on Succession of States
1. Succession to territory—when a state succeeds another state with
particular territory, the capacities, rights and duties of the
predecessor state with respect to that territory terminate and are
assumed by the successor state
2. Succession to state property—this is subject to agreement between
predecessor and successor states
3. Succession to contracts—this is subject to agreement between the
states concerned
叶清蓮 & DSP
Succession to treaties
Moving Treaty Rule / Moving Boundaries Rule—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
o Relief from treaty obligation is rebus sic stantibus
b. When a state is absorbed by another state, international agreements
of the absorbed states are terminated
c. Clean Slate Theory—when part of a state becomes a new state, the
new state does not succeed to the international agreements to which
the predecessor state was a party unless, expressly or impliedly, it
accepts such agreements
d. Uti possidetis Rule—pre-existing boundary and other territorial
agreements continue to be binding notwithstanding
a.
Recognition of Government—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
Consequence of Recognition or Non-Recognition
 A government, once recognized, gains increased prestige and stability
a. Doors of funding agencies are opened
b. Loans are facilitated
c. Access to foreign courts and immunity from suit are gained
d. Military and financial assistance also come within reach
 Absence of formal recognition bars an entity from all these benefits
or, at least, access to them may be suspended
 Admission of a government to the UN does not mean recognition by all
members but only to the extent of the activities of the organization
 Recognition of a regime is terminated when another regime is
recognized
Responsibility for the public debt of the predecessor, and rights and
obligations under its contracts remain with the predecessor state but
is subject to certain exceptions
Fundamental Rights of States
1. Independence—capacity of a state to provide for its own well-being
and development free from the domination of other states
o Right to exercise within its portion of the globe, to the exclusion of
others, the functions of a state
o Restrictions upon a state’s liberty either from customary law or from
treaties do not deprive a state of independence
o There is duty not to interfere in the internal affairs of other states
o Rights flowing from independence:
a. Jurisdiction over its territory and permanent population
b. Right to self-defense
c. Right of legation
2. Equality—equality of legal rights irrespective of size or power of the
state
o Within the General Assembly, the doctrine means one state, one
vote
3.
Peaceful Co-Existence—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
Some Incomplete Subjects
1. Protectorates—dependent states which have control over their
internal affairs but whose external affairs are controlled by another
state; referred to as
a. Autonomous states
b. Vassal states
c. Semi-sovereign
d. Dependent sates
Public International Law
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2.
Federal state—a union of previously autonomous entities
o The central organ will have personality in international law but the
extent of international personality of the component entities can be
a problem
3.
Mandated and Trust Territories—territories placed by the League of
nations under one or other of the victorious allies of WWI
o After WWII, this was replaced by trusteeship system
4.
Taiwan—a non-state territory which de jure is part of China
5.
The Sovereign Order of Malta—the Italian Court of Cassation in 1935
recognized its international personality
6.
The Holy See and Vatican City—recognized under Lateran Treaty; it
has no permanent population
CHAPTER 6
OTHER SUBJECTS OF INTERNATIONAL LAW
INTERNATIONAL ORGANIZATIONS
 An organization that is set up by treaty among 2 or more states which
have international personality
 Constituent instruments of international organizations are multilateral
treaties, to which the well-established rules of treaty interpretation
apply
 Non-governmental organizations (NGO)—set up by private persons
 Although international organizations have personality in international
law, their powers and privileges are by no means like those of states
since it is limited by the constitutional instrument that created them
The United Nations: Structure and Powers
 Came into being on Oct. 24, 1945
 A universal organization charged with peacekeeping responsibilities,
development of friendly relations among nations, achievement of
international cooperation in solving international problems of an
economic, social, cultural and humanitarian character, and the
promotion of human rights and fundamental freedoms for all human
beings without discrimination
 UN is enjoined against intervening in matters which are essentially
within the domestic jurisdiction of any state
 International Constitutional Supremacy Clause—in the hierarchy of
international organizations, the UN occupies a position of preeminence
so if there is a conflict with other international agreement, obligations
under the UN Charter shall prevail
 Principal organs of UN:
1. General Assembly—it has plenary power in the sense that it may
discuss any question or any matters within the scope of the
Charter
o GA distinguishes between
a. Important questions—decided by 2/3 majority of the
members voting and present
b. Other questions—decided by the majority
Advisory Opinion on the Use of Nuclear Weapons
International organizations—governed by the Principle of Specialtythey
are invested by the States which create them with powers, the limits of
which are a function of the common interests whose promotion those
States entrust to them.
Powers conferred on international organizations—normally the subject of
an express statement in their constituent instruments but in order to
achieve their objectives, they possess subsidiary powers which are not
expressly provided for in the basic instruments which govern their
activities.
Immunities—based on the need for the effective exercise of their functions and
not from sovereignty
 These immunities come from the conventional instrument creating
them
叶清蓮 & DSP
Public International Law
2.
Security Council—has primary responsibility for the maintenance
of international peace and security
o There are 15 member states, 5 permanent and the others are
elected for 2 year terms in accordance with equitable
geographic representation
o Distinguishes between
a. Procedural matters
b. All other matters—requires 9 affirmative votes, including
the concurring votes of the permanent members
o The Charter does not specify what matters are procedural,
hence, decision on whether a matter is procedural or not
requires the concurrence of the permanent members
o Abstention = veto
3.
Economic and Social Council (ECOSOC)—has 54 members elected
for 3 year terms
4.
o
5.
Trusteeship Council—supervises non-self governing territories
The Council suspended operations after Palau became
independent on Oct. 1, 1994
International Court of Justice (ICJ)—principal judicial organ of
the UN
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6.
Secretariat—comprises a Secretary General and such staff as the
Organization may require
o Secretary General—elected to a 5 year term by General
Assembly upon the recommendation of the Security Council,
subject to veto power
 Other Agencies:
1. United Nations Educational, Scientific and Cultural Organizations
(UNESCO)
2. International Civil Aviation Organization (ICAO)
3. World Health Organization (WHO)
4. Food and Agricultural Organization (FAO)
5. World Bank
6. International Monetary Fund (IMF)
Regional Organizations—they are neither organs nor subsidiary organs of UN
 They are autonomous international organizations having an
institutional affiliation with UN by concluding agreements with UN
 Created by international agreements for the purpose of dealing with
regional problems in general or with specific matters be they
economic, military or political
ASEAN—established on Aug. 8, 1967 in Bangkok, Thailand with the signing of
the Bangkok Declaration by the 5 original member countries: Indonesia,
Malaysia, Philippines, Singapore and Thailand
 Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995;
Laos and Myanmar on July 23, 1997; Cambodia in 1999.
 3 main objectives:
a. Promote economic, social and cultural development of the region
through cooperative programs
b. Safeguard the political and economic stability of the region against
big power rivalry
c. Serve as a forum for the resolution of intra-regional differences
INSURGENTS
 Protocol II—first and only international agreement exclusively
regulating the conduct of parties in a non-international armed conflict
 Requirements for Material Field of Application:
a. Armed dissidents must be under responsible command
b. They must exercise such control over a part of its territory as to
enable them to carry out sustained and converted military
operations and to implement this Protocol
 Insurgent groups which satisfy the material field of application may be
regarded as ―para-statal entities possessing definite if limited form of
international personality‖
a. They are recognized as having belligerent status against the de
jure government
b. They are seen as having treaty making capacity
叶清蓮 & DSP
 Common Article 3—for armed conflict not of an international
character
 Prohibited acts under Article 3:
a. Violence to life and person, in particular, murder of all kinds,
mutilation, cruel treatment and torture
b. Taking of hostages
c. Outrages upon personal dignity, in particular, humiliating and
degrading treatment
d. Passing of sentences and the carrying out of executions without
previous judgment pronounced
NATIONAL LIBERATION MOVEMENTS
 Organized groups fighting in behalf of a whole people for freedom from
colonial powers
 Characteristics:
a. They can be based within the territory which they are seeking to
liberate or they might find a base in a friendly country
b. Their goal is self-determination—to free themselves from colonial
domination, or a racist regime or foreign occupation
c. There is the ultimate goal of controlling a definite territory
d. They must have an organization capable of coming into contract
with other international organizations
INDIVIDUALS
 Possess limited rights and obligations (deriving from customary
international law) in international law
 Obligations of individuals are those arising from the regulation of
armed conflicts
 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
CHAPTER 7
TERRITORY: LAND, AIR, OUTER SPACE
Territory in International Law—an area over which a state has effective
control
 Exact boundaries might be uncertain but there should be a definitive
core over which sovereignty is exercised
 Acquisition of territory—acquisition of sovereignty over territory
 Includes land, maritime areas, airspace and outer space
Public International Law
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Modes of Acquisition of Sovereignty over Territory
1. Discovery and Occupation
o Occupation—acquisition of terra nulliusterritory which prior to
occupation belonged to no state or which may have been abandoned
by a prior occupant
o There is abandonment when occupant leave the territory with the
intention of not returning
o Discovery of terra nullius is not enough to establish sovereignty; it
must be accompanied by effective control
In resolving island territorial disputes, the following 3 important rules
must be followed:
1. Title based on contiguity has no standing in international law
2. Title by discovery is only an inchoate title
3. If another sovereign begins to exercise continuous and actual
sovereignty and the discoverer does not contest this claim, the claim
by the sovereign that exercises authority is greater than a title based
on mere discovery
EASTERN GREENLAND CASE
HELD:
A claim to sovereignty based not upon some particular act or title such
as treaty or cession but merely upon continued display of authority,
involves 2 elements each of which must be shown to exist: (a) intention
and will to act as sovereign, and (b) some actual exercise or display of
such authority.
WESTERN SAHARA CASE
HELD:
Territories inhabited by tribes or peoples having a social and political
organization were not regarded as terra nullius.
The information furnished to the Court shows that at the time of
colonization, Western Sahara was inhabited by peoples which, if
nomadic, were socially and politically organized into tribes and under
chiefs competent to represent them.
THE ISLAND OF PALMAS
HELD:
Contiguity—US also argued that Palmas was US’ territory because the
island was closer to the Philippines than to Indonesia which was then
held by the Netherlands East Indies. The arbitrator said there was no
positive international law which favored the US’ approach of terra firma,
where the nearest continent or island of considerable size gives title to
the land in dispute. The arbitrator held that mere proximity was not an
adequate claim to land noted that if the international community
followed the proposed United States approach, it would lead to arbitrary
results.
Another circumstance which must be taken into account is the extent to
which the sovereignty is also claimed by some other Power.
One of the peculiar features of the present case is that up to 1931, there
was no claim by any Power other than Denmark to the sovereignty of
Greenland.
2.
Prescription—requires effective control and the object is not terra
nullius
o The required length of effective control is longer than in occupation
o May be negated by a demonstrated lack of acquiescence by the prior
occupant
3.
o
Continuous and peaceful display of sovereignty—the Netherlands' primary
contention was that it held actual title because the Netherlands had
exercised authority on the island since 1677. The arbitrator noted that
the US had failed to show documentation proving Spanish sovereignty on
the island except those documents that specifically mentioned the
island's discovery. Additionally, there was no evidence that Palmas was a
part of the judicial or administrative organization of the Spanish
government of the Philippines. However, the Netherlands showed that
the Dutch East India Company had negotiated treaties with the local
princes of the island since the 17th century and had exercised
sovereignty, including a requirement of Protestantism and the denial of
other nationals on the island. The arbitrator pointed out that if Spain had
actually exercised authority, than there would have been conflicts
between the two countries but none are provided in the evidence.
叶清蓮 & DSP
4.
Cession—acquisition of territory through treaty
A treaty of cession which is imposed by a conqueror is invalid
Conquest and Subjugation
Conquest—taking possession of a territory through armed force
It is necessary that the war had ended either by treaty or by
indication that all resistance had been abandoned
o Now, conquest is proscribed by international law
o ―No territorial acquisition resulting from the use or threat of force
shall be recognized as legal‖
o
o
5.
Public International Law
o
o
Accretion and Avulsion—sovereignty by operation of nature
Accretion—gradual increase of territory by the action of nature
Avulsion—sudden change resulting for instance from the action of a
volcano
P a g e |9
Is Contiguity a Mode of Acquisition?
 It is impossible to show a rule of positive international law to the
effect that islands situated outside the territorial waters should belong
to a state from the fact that its territory forms part of the terra firma
(Las Palmas Case)
Intertemporal Law
 Rules in effect at the time of the acquisition should be applied
AIRSPACE
 Each state has exclusive jurisdiction over the air space above its
territory
 Sovereignty over airspace extends only until where outer space begins
 Consent for transit must be obtained from the subjacent nation
 State Aircraft—aircraft used in military, customs and police services
 ―No state aircraft of a contracting State shall fly over the territory of
another State or land thereon without authorization by special
agreement or otherwise, and in accordance with the terms thereof.‖
(Art. 3[a] of Chicago Convention on International Civil Aviation)
 Aircraft must not only not be attacked unless there is reason to suspect
that the aircraft is a real threat but also that a warning to land or
change course must be given before it is attacked (Lissitzyn)
 Civilian aircraft should never be attacked
OUTERSPACE
 Outer space, wherever that might be, and celestial bodies, are not
susceptible to appropriation by any state
 ―The Moon and other celestial bodies shall be used by all State Parties
to the Treaty exclusively for peaceful purposes.‖ (1967 Treaty on the
Exploration and Use of Outer Space)
CHAPTER 8
TERRITORY: LAW OF THE SEA
Importance of the Sea
1. Medium of communication
2. Contain vast natural resources
Grotius – elaborated the doctrine of the open seas which considers the high
seas as res communis accessible to all
o The doctrine recognized as permissible the delineation of a maritime
belt by littoral states as an indivisible part of its domain
o Maritime belt = territorial sea
叶清蓮 & DSP
Convention on the Law of the Sea of 1982 – prevailing law on maritime
domain
Art. 2 of the 1982 Law of the Sea provides that
1. Sovereignty of a coastal State extends, beyond its land territory and
internal waters and, in case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as territorial sea
2. Sovereignty extends to the air space over the territorial sea as well as
to its bed and subsoil
3. Sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law
Territorial Sea – belt of sea outwards from the baseline and up to 12 nautical
miles beyond
o The width of this territorial belt of water is the 12-mile rule
o However, where the application of the 12-mile rule to neighboring
littoral states would result in overlapping  the rule is that the
dividing line is the median line equidistant from the opposite baselines
o Equidistance rule does not apply where historic title or other special
circumstances require a different measurement
Baselines – the low-water line along the coast as marked on large scale charts
officially recognized by the coastal State
Two ways of drawing the Baseline:
1. Normal baseline – one drawn following the low-water line along the
coast as marked on large scale charts officially recognized by the
coastal State
o this line follows the curvatures of the coast and therefore
would normally not consist of straight lines
2. Straight baseline – drawn connecting selected points on the coast
without appreciable departure from the general shape of the coast
o Most archipelagic states use straight baselines
o Art. 47 of the Convention on the Law of the Sea – the length
of such baseline shall not exceed 100 nautical miles, except
that up to 3% of the total number of baselines enclosing any
archipelago may exceed that length up to a maximum length
of 125 nautical miles
Sovereignty over Territorial Sea – same as sovereignty over its land territory
o The sea and the strait are subject to the right of innocent passage by
other states
Right of Innocent Passage – passage that is not prejudicial to the peace, good
order or security of the coastal state
o Applies to ships, aircrafts, and submarines
Public International Law
P a g e | 10
o
Coastal states have the unilateral right to verify the innocent
character of passage, and it may take the necessary steps to prevent
passage that it determines to be not innocent
Internal Waters – all waters landwards from the baseline of the territory
o Coastal states may regulate access to its ports (Nicaragua case)
Archipelagic Waters
o An archipelagic state may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious passage of
foreign ships and aircraft through or over its archipelagic waters and
the adjacent territorial sea
o The concept of the archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines, and
removes straits connecting these waters with the economic zone or
high sea from the rights of foreign vessels to transit passage for
international navigation
Bays – well-marked indentation whose penetration is in such proportion to the
width of its mouth as to contain land-locked waters and constitute more than a
mere curvature of the coast
o Considered as internal waters of a coastal state
o Indentation shall not be regarded as bay unless its area is as large as,
or larger than, that of the semi-circle whose diameter is a line drawn
across the mouth of that indentation
Historic Bays – treated by the costal state as internal waters on the basis of
historic rights acknowledge by other states
Contiguous Zone – an area of water not exceeding 24 nautical miles from the
baseline
o It extends 12 nautical miles from the edge of the territorial sea
o Coastal state exercises authority over that area to the extent
necessary to prevent infringement of its customs, fiscal, immigration
or sanitation authority over its territorial waters or territory and to
punish such infringement
o However, the power of control given to the littoral state does not
change the nature of the waters
o Beyond the territorial sea, the waters are high sea and are not subject
to the sovereignty of the coastal state
Exclusive Economic Zone or “Patrimonial Sea” – an area extending not more
than 200 nautical miles beyond the baseline
o Coastal state has rights over the economic sources of the sea, seabed
and subsoil – but the right does not affect the right of navigation and
overflight of other states
o The delimitation of the overlapping EEZ between adjacent states is
determined by agreement
叶清蓮 & DSP
Two Primary Obligations of Coastal States:
1. They must ensure through proper conservation and management
measures that the living sources of the EEZ are not subjected to over
exploitation
2. They must promote the objective of ―optimum utilization‖ of the
living sources
The Continental (Archipelagic) Shelf – refers to the
a. Seabed and subsoil of the submarine areas adjacent to the coastal
state but outside the territorial sea, to a depth of 200 meters or,
beyond that limit, to where the depth allows exploitation
b. Seabed and subsoil of areas adjacent to islands
The Deep Seabed: “Common Heritage of Mankind”
o These are areas of the seabed and ocean floor, and their subsoil, which
lie beyond any national jurisdiction
o These are the common heritage of mankind and may not be
appropriated by any state or person
Islands – naturally formed area of land, surrounded by water, which is above
water at high tide
o Artificial islands or installations are not ―islands‖
o Important due to the possibility of exploiting oil and gas resources
around them
o Islands can have their own territorial sea, exclusive economic zone and
continental shelf
o Rocks which cannot sustain human habitation or economic life shall
have no exclusive economic zone or continental shelf, but can have a
territorial sea
The High Seas – all parts of the sea that are not included in the territorial sea
or in the internal waters of a state
o The flag state has exclusive jurisdiction over its ships on the high seas
to the extent not limited by agreement
Six Freedoms which High Seas are subject to:
a. Navigation
b. Overflight – belongs to both civilian and military aircraft
c. Fishing – includes the duty to cooperate in taking measures to ensure
the conservation and management of the living resources of the high
seas
d. Lay submarine cables and pipelines
e. Construct artificial islands and structures
f. Scientific research
Public International Law
P a g e | 11
Hot Pursuit
o Art. 111 allows hot pursuit of a foreign vessel where there is good
reason to believe that the ship has violated laws or regulations of a
coastal state
o This must commence when the foreign vessel is within the internal
waters, archipelagic waters, territorial waters, exclusive economic
zone, continental shelf or the contiguous zone of the pursuing state
o Hot pursuit must stop as soon as the ship pursued enters the territorial
waters of its own state or of a third state
o May be carried out only by warships or military aircraft, or any other
ships or aircraft properly marked for that purpose
Settlement of Disputes
o Peaceful settlement is compulsory
CHAPTER 9
JURISDICTION OF THE STATES
Jurisdiction – authority to affect legal interests
o 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
o Corresponding to the powers of the government, jurisdiction can be:
1. Legislative jurisdiction – prescribe norms of conduct
2. Executive jurisdiction – enforce the norms prescribed
3. Judicial jurisdiction – adjudicate
o International law limits itself to criminal rather than civil jurisdiction
o Civil jurisdiction is subject for private international law or conflicts of
law
o Jurisdiction may also be acquired by treaty
o However, there are 5 popular principles on jurisdiction
TERRITORIALITY PRINCIPLE
o This is generally supported in customary law
o Fundamental source of jurisdiction is sovereignty over territory
o It is necessary that boundaries be determined
o To have jurisdiction, occupation is not enough; control must also be
established (Las Palmas Case)
Boundary – separating the land areas of two states is determined by the acts of
the states expressing their consent to its location
o When the boundary between 2 states is a navigable river  its
location is the middle of the channel of navigation
o When boundary between 2 states is a non-navigable river or lake 
its location is the middle of the river or lake
叶清蓮 & DSP
Effects Doctrine
o State also has jurisdiction over acts occurring outside its territory but
having effects within it
1. Subjective Territorial Principle – a state has jurisdiction to prosecute
and punish for crime commenced within the state but completed or
consummated abroad
2. Objective Territorial Principle – state has jurisdiction to prosecute and
punish for crime commenced without the state but consummate within
its territory
Jurisdiction over Foreign Vessels in Philippine Territory – we follow the
English Rule
1. French Rule – crimes committed abroad a foreign merchant vessel
should not be prosecuted in the courts of the country within whose
territorial jurisdiction they were committed unless their commission
affects the peace and security of the territory
2. English Rule – crimes perpetrated under such circumstances are in
general triable in the courts of the country within whose territory they
were committed
NATIONALITY PRINCIPLE
o This is generally supported in customary law
o Every state has jurisdiction over its nationals even when those
nationals are outside the state
Effective Nationality Link – used to determine which 2 states of which a
person is a national will be recognized as having the right to give diplomatic
protection to the holder of dual nationality
Corporations – state has jurisdiction over corporations organized under its
laws
Maritime vessels – state has jurisdiction over vessels flying its flag
o Same applies to aircraft and spacecraft
Stateless Persons – persons who have no nationality
a. De jure stateless – persons who have lost their nationality, if they had
one, and have not acquired a new one
b. De factor stateless – persons who have a nationality but to whom
protection is denied by their state when out of the State
PROTECTIVE PRINCIPLE
o This is generally supported in customary law
o 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
o However, this is strictly construed to those offenses posing a direct,
specific threat to national security
Public International Law
P a g e | 12
Examples of acts covered by Protective Principle:
a. Plots to overthrow the government
b. Forging its currency
c. Plot to break its immigration regulations
b. Is the effect sufficiently large to present a cognizable injury to the
plaintiffs, and, therefore, a violation of the anti-trust law?
c. Are the interests of the state sufficiently strong, vis-à-vis those of
other nations, to justify an assertion of extraordinary authority
UNIVERSALITY PRINCIPLE
o This recognizes that certain activities, universally dangerous to states
and their subjects, require authority in all community members to
punish such acts wherever they may occur, even absent a link between
the state and the parties or the acts in question
Examples of acts covered by Universality Principle:
a. Piracy – any illegal act of violence or depredation committed for
private ends on the high seas or outside the territorial control of any
state
b. Genocide – acts committed with intent to destroy, in whole or in part,
a national, ethical, racial or religious group
c. Crimes against humanity – acts committed as part of a widespread or
systematic attack directed against any civilian population
1. Attack directed against any civilian population
2. Extermination – internal infliction of conditions of life
3. Enslavement
4. Deportation or forcible transfer of population
5. Torture
6. Forced pregnancy
7. Persecution
8. Crime of Apartheid
9. Enforced disappearance of persons
d. War crimes – grave breaches of the Geneva Convention of 12 August
1949, namely, any of the following acts against persons or property
protected under the provisions of the relevant Geneva Convention
e. Aircraft piracy
f. Terrorism
PASSIVE PERSONALITY PRINCIPLE
o This does not enjoy wide acceptance
o State may apply law, criminal law, to an act committed outside its
territory by a person not its national where the victim of the act was
its national
o Not accepted for ordinary torts or crimes but is increasingly accepted
as applied to terrorist and other organized attacks on a state’s
nationals by reason of their nationality, or to assassination of a state’s
diplomatic representatives or other officials
2.
International Comity – state will refrain from exercising its jurisdiction is
it is unreasonable
o Factors to consider in determining unreasonableness:
a. Link or connection of the activity to the territory of the regulating
state
b. Character of the activity to be regulated
c. Existence of justified expectations that might be protected or hurt
by the regulation
d. Likelihood of conflict with regulation by another state
3. Forum non conveniens – application is discretionary with the court
o If in the whole circumstances of the case it be discovered that there is
real unfairness to one of the suitors in permitting the choice of a
forum which is not the natural or proper forum, either on the ground
of convenience of trial or the residence or domicile of parties or of its
being the locus contractus or locus solutionis
EXTRADITION – the surrender of an individual by the state within whose
territory he is found to the state under whose laws he is alleged to have
committed a crime or to have been convicted of a crime
o This is a process that is governed by a treaty
o Legal right to demand extradition and the correlative duty to surrender a
fugitive exist only when created by treaty
o Procedure for extradition is normally through diplomatic channels
Principles governing Extradition
1. No state is obliged to extradite unless there is a treaty
2. Differences in legal system can be an obstacle to interpretation of what
the crime is
3. Religious and political offenses are not extraditable
Bail in Extradition Cases
o Bail may be granted to a possible extraditee only upon a clear and
convincing showing that
1. He will not be a flight risk or a danger to the community
2. There exist special, humanitarian and compelling circumstances
CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction
1. Balancing Test – if the answer is yes to all the following questions, then
the court will assume jurisdiction
a. Was there an actual or intended effect on a state’s foreign commerce?
叶清蓮 & DSP
Public International Law
P a g e | 13
CHAPTER 10:
IMMUNITY FROM JURISDICTION
B. State Immunity
- The State may not be sued without its consent.
- Based on the principle of equality and independence of states: par in parem
non habet imperium.
- With the gradual expansion of state involvement in commerce, the principle
of state immunity has evolved to one of restrictive state immunity: only acts
jure imperii (governmental acts) and not acts jure gestionis (trading and
commercial acts) are immune.
* GR: Jurisdiction of a state within its territory is complete and absolute.
* Exceptions:
1.) Sovereign immunity
2.) Diplomatic/consular immunity
A. Immunity of Head of State
- Applies to both the Head of State and to the State itself
Mighell v. Sultan of Johore
The Sultan of Johore was sued for bread of a promise to marry in a British
court. Despite the fact that it was a private suit, it was dismissed upon
verification that the Sultan was a sitting foreign sovereign.
Pinochet Case: Regina v. Bartle and the Commissioner of Police (House of
Lords, 1999)
General Augusto Pinochet led a military coup that overthrew the Chilean
President Allende. According to a national truth and reconciliation mission, at
least 3,196 people were killed or forcibly disappeared during his dictatorship.
British authorities detained Pinochet on an arrest warrant issued by Spanish
Magistrate Baltasar Garzon under the charges of genocide, terrorism, and
torture.
In affirming that Pinochet did not enjoy immunity from prosecution as a former
head of state and could thus be extradited, the House of Lords explained:
a.) Senator Pinochet as a former head of state enjoys immunity
rationae materiae in relation to acts done by him in relation to his
official function as such.
b.) However, organization of state torture is not an act committed in
his official function. The commission of a crime which is an
international crime against humanity and jus cogens cannot be a state
function. The principle of individual responsibility for international
criminal conduct has become an accepted part of international law.
c.) The notion of continued immunity for ex-heads of state is
inconsistent with the provisions of the Torture Convention which
provides that the international crime of torture can only be committed
by an official or someone in official capacity. Since the immunity
applies also to officials who carried out the functions of the state, if
torture is treated as official business sufficient to justify the immunity,
then no party would be held liable and the structure of universal
jurisdiction over torture committed by officials is rendered abortive.
d.) Thus, Senator Pinochet was not acting in any capacity which gives
rise to immunity rationae materiae since authorized and organized
torture are contrary to international law.
叶清蓮 & DSP
The Schooner Exchange v. MacFaddon
States enjoy absolute immunity. Despite the absolute territorial jurisdiction of
states, one sovereign, being bound to not degrade the dignity of his nation by
placing himself within the jurisdiction of another, can be supposed to enter
into foreign territory in the confidence that the immunities belonging to his
independent sovereign station, though not expressly stipulated, are reserved by
implication and will be extended to him.
Dralle v. Republic of Czechoslovakia
It can no longer be said that by international law, acta gestionis are exempt
municipal jurisdiction. The classic doctrine of immunity arose at a time when
there was no justification for any distinction between private transactions and
acts of sovereignty. Today, States engage in commercial activities and enter
into competition with their own nationals as well as foreigners.
USA v. Hon. V.M. Ruiz (Philippines)
The traditional rule of State immunity is a necessary consequence of the
principles of independence and equality of States. However, the rules of
International Law are constantly developing and evolving. Because state
activities have multiplied, it has become necessary to distinguish them
between sovereign and governmental acts, and private, commercial and
proprietary acts.
The result is that State immunity now extends only to acts jure imperii. A state
may be said to have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when it enters into
business contracts. But this does not apply where the contract relates to the
exercise of its sovereign functions.
In this case, repairs of base facilities are an integral part of the naval base
devoted to the defense of both the US and the Philippines, which is a function
of the government not utilized nor dedicated to commercial or business
purposes.
US v. Hon. Luis Reyes (Philippines)
A claim of immunity by an American official was rejected when shown to have
been committed outside the scope of her authority as well as contrary to law.
Public International Law
P a g e | 14
Unauthorized acts of government officials or officers are not acts of the State,
and an action against the latter is not a suit against the State within the rule of
immunity of the State from suit. The doctrine of state immunity cannot be
used as an instrument to perpetrate an injustice.
the Philippines and by the proper court of Makati City, Philippines. In addition,
the Ambassador and Minister Counsellor may be sued in their personal capacity
for tortious acts done with malice and bad faith.
The trial court denied the Motion to Dismiss, which the CA affirmed.
Holy See v. Eriberto Rosario, Jr. (Philippines)
The mere entering into a contract by a foreign state with a private party
cannot be the ultimate test of whether the activity or transaction is
―commercial‖.
One must also question: (a.) whether the foreign state is engaged in the
activity in the regular course of business; and (b.) if not, whether the nature of
the particular transaction or act is in pursuit of a sovereign activity or an
incident thereof. If the answer to (b.) is yes, and especially if it is not
undertaken for profit or gain, then the act is jure imperii.
Petitioner questions the ruling of the CA that the former had waived its
immunity from suit based on the agreement.
The SC ruled in favor of the petitioner:
a.) The rules of IL are neither unyielding not impervious to change.
The increasing need of sovereign states to enter into purely
commercial activities brought about a new concept of immunity. The
restrictive theory holds that immunity of the sovereign is recognized
only with regard to public acts but not with regard to private acts.
In this case, petitioner has denied having bought and sold lands in the ordinary
course of a real estate business. Instead, he claimed that the acquisition of Lot
5-A was for the site of its mission or the Apostolic Nunciature of the
Philippines. Respondent failed to dispute such claim.
* How to claim State immunity?
- In PIL, a State must request the Foreign Office of the state where it is sued to
convey to the court that it is entitled to immunity.
- In the Philippines, the foreign government or international organization must
first secure an executive endorsement (in whatever form) of its claim of
sovereign or diplomatic immunity.
Republic of Indonesia v. Vinzon (2003)
Petitioner, Republic of Indonesia entered into a Maintenance Agreement with
respondent, James Vinzon of Vinzon Trade and Services, to maintain specified
equipment (aircons, generator sets, electrical facilities, water heaters, water
motor pumps) at the Embassy Main and Annex buildings and that the Wisma
Duta.
Chief of Administration, Minister Counselor Azhari Kasim allegedly found
Vinzon’s work unsatisfactory and not in compliance with the agreed standards.
Thus, the Embassy terminated the agreement.
Respondent alleges that the termination was arbitrary and unlawful. Vinzon
filed a complaint in the RTC Makati. Petitioner filed a Motion to Dismiss based
on sovereign immunity from suit as well as diplomatic immunity under the
Vienna Convention on Diplomatic Relations, regarding the suit against
Ambassador Soeratmin and Minister Counsellor Kasim.
Respondent alleged that the petitioner has expressly waived its immunity from
suit based on a provision in the Maintenance Agreement which states that any
legal action arising from the agreement will be settled according to the laws of
叶清蓮 & DSP
Public International Law
b.) The mere entering into a contract by a foreign state with a private
party cannot be construed as the ultimate test of whether or not it is
an act jure imperii or jure gestionis. If the foreign state is not engaged
regularly in a business or commercial activity, as in this case, the
particular act or transaction must be then tested by its nature. If it is
in pursuit of a sovereign activity or an incident thereof, then it is an
act jure imperii.
c.) The existence alone of a provision in the contract stating that any
legal action arising out of the agreement shall be settled according to
the laws of the Philippines and by a specified court of the Philippines is
not necessarily a waiver of state immunity from suit. It is merely
meant to apply where: (a.) the sovereign party elects to sue in the
local courts; or (b.) otherwise waives its immunity by any subsequent
act. The applicability of Philippine laws include the principle
recognizing sovereign immunity.
d.) Submission by a foreign state to local jurisdiction must be clear and
unequivocal, given explicitly or by necessary implication. There is not
such waiver in this case.
e.) The establishment of a diplomatic mission is a sovereign function.
It encompasses its maintenance and upkeep. Hence, the state may
enter into contracts with private entities to maintain the premises,
furnishings and equipment of the embassy and the living quarter of its
agents and officials.
f.) Under Article 31 of the Vienna Convention on Diplomatic Relations,
a diplomatic agent may be sued in his private capacity for (c.) an
action relating to any professional or commercial activity exercised by
the diplomatic agent in the receiving State outside his official
functions. Bu the acts of the Ambassador and the Minister Counsellor in
P a g e | 15
terminating the agreement was committed in relation to their official
functions. Thus, they enjoy immunity from suit.
C. Diplomatic and Consular Immunities
- Based on customary law.
- Official representatives of a state are given immunities and privileges within
the territory of another state.
- The immunities and privileges are personal (for diplomat’s benefit) but also
functional (to enable the diplomat to perform his functions properly).
- The receiving state has a corresponding obligation to protect the
representative and his property and office.
* Diplomatic Immunities (Vienna Convention on Diplomatic Relations 1961)
- Diplomatic relations are purely by mutual consent.
- An agreement by the receiving state (RS) is a prerequisite before the head of
mission is sent. The RS has no obligation to explain its refusal, and may at any
time and without explanation notify the sending state (SS) that a diplomatic
agent is persona non grata or that a staff member is unacceptable.
- The SS can either recall the person or terminate his functions with the
mission.
Article I. Who can enjoy diplomatic immunities?
a.) head of mission
b.) diplomatic agent (head of mission or member of diplomatic staff)
c.) members of the mission including the diplomatic, administrative and
technical, and service staff
d.) private servant in the domestic service of a member of the mission, not
employed by the sending state
e.) premises of the mission, irrespective of ownership
Article III. Functions of the diplomatic mission:
a.) Represent the sending state in receiving state
b.) protect its interests and of its nationals
c.) negotiate with the government
d.) report on developments and conditions in the receiving state
e.) promote friendly relations
* Rights and Privileges of the diplomatic mission:
a.) Inviolability of mission premises and means of transport; RS has duty to
protect the premises and prevent any disturbance to the mission or impairment
of its dignity. (Art. 22)
b.) Tax Exemptions for the SS and the head of mission, not extending to those
payable under the laws of RS by persons contracting with them. (Art. 23)
c.) Inviolability of archives and documents of the mission. (Art. 24)
d.) Free communication and inviolability of official correspondence, of the
diplomatic courier, and of the diplomatic bag. (Art. 27)
叶清蓮 & DSP
- Exceptions:
1.) Mission must have consent of RS to instate and use a wireless
transmitter.
2.) Diplomatic bag may only contain diplomatic documents or articles
for official use.
e.) Inviolability of the person of diplomatic agent from arrest or detention.
(Art. 29)
f.) Inviolability of the private residence, property, papers, and correspondence
of a diplomatic agent. (Art. 30)
g.) Immunity of diplomatic agent from criminal, civil, and administrative
jurisdiction of RS; immunity from giving evidence as witness; immunity from
execution of judgement. (Art. 31)
- Exceptions:
1.) real action relation to private immovable property in the RS, unless
held on behalf of the SS for mission purposes
2.) action relating to succession, done as a private person and not on
behalf of the SS
3.) action relating to any professional or commercial activity done in
the RS outside his official capacity
h.) Express waiver of immunity from suit made by SS or impliedly by diplomatic
agent upon initiation of proceedings, but only in respect to compulsory
counterclaims. Waiver of immunity from suit is distinct from waiver of
immunity from execution. (Art. 32)
i.) Exemption from social security provisions of the RS for services rendered for
the SS. (Art. 33)
- Exception:
1.) private servant who is either a national or a permanent resident of
the RS; and
2.) not covered by the social security provision in the SS or a third
state
j.) Tax exemption of diplomatic agents. (Art. 34)
- Exceptions:
1.) indirect taxes incorporated in price of goods or services
2.) dues and taxes on private immovable property in RS (unless on
behalf of SS, for mission purpose)
3.) estate, inheritance, succession duties
4.) private income from within RS
5.) charges levied for services rendered
6.) registration, court or record fees, mortgage dues and stamp duty
on immovable property
k.) Free entry of articles for official use of the mission and for the personal use
of the diplomatic agent or his family. (Art. 36)
- Exception:
1.) personal baggage of the diplomatic agent may be inspected in
his/duly authorized representative’s presence if there is serious ground
to presume that it contains articles not exempted, or prohibited by
import or export laws or quarantine regulations
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l.) Extension of immunity to family of diplomatic agent under Art. 29-36;
immunity of members of administrative and technical staff and their families
under Art. 29-35; immunity of service staff for official acts and tax exemption
under Art. 33; and tax exemption of private servant for emoluments due to
employment. (Art. 37)
- Exception:
1.) nationals of RS
2.) permanent resident of RS (not for family of diplomatic agent)
m.) Immunities of a diplomatic agent who is a national or permanent resident
of RS is limited to immunity from jurisdiction and inviolability in respect to
official acts. For others, only such privileges and immunities that the RS may
allow. (Art. 38)
n.) Privileges and immunities begin from entry into RS, or if already there,
from notification of appointment to Ministry of Foreign Affairs of the RS. They
cease upon leaving the RS, or on reasonable period, but shall subsist even in
armed conflict. (Art. 39)
*Obligations of diplomatic mission:
a.) To respect the laws and regulations of the RS (Art. 41)
b.) To refrain from practice for personal profit any professional or commercial
activity in the RS. (Art. 42)
* Consuls and Consular Immunities (Vienna Convention on Consular Relations
1967)
- Not concerned with political matters.
- Attend only to the administrative and economic issues.
- Head of consular post must first be authorized by RS via an exequatur.
- RS may at any time and without explanation notify the SS that a consular
officer is a persona non grata or a staff member is unacceptable.
- SS can only recall or terminate his functions with the consular post.
- RS has duty to protect the consular premises, archives and interests of the SS
and ensure the unimpeded functioning of the consular offices.
* Article V. Consular Functions:
a.) protect the interest of the SS and of its nationals in the RS
b.) further development of economic, commercial, cultural and scientific
relations and promote friendly relations between RS and SS
c.) report on development and condition of RS
d.) issue passports and travel documents to nationals of SS and visa and
appropriate documents for those who wish to travel to SS
e.) assist nationals
f.) act as notary and civil registrar and perform administrative functions
g.) safeguard interests of nationals in cases of succession mortis causa in RS
h.) safeguard interest of nationals who are minors or lack full capacity
i.) represent or arrange representation for nationals before the tribunals or
other authorities of the RS
j.) transmit judicial and extrajudicial documents or executing letters to take
evidence for the courts of the SS
叶清蓮 & DSP
k.) exercise supervision and inspection over vessels under SS flag, aircrafts
registered in SS, and their crew
l.) extend assistance to such vessels and aircrafts and their crew
m.) other functions not prohibited by laws of RS
* Rights and Privileges of the consular mission:
a.) Freedom of movement (Art. 34)
b.) Freedom of communication (Art. 35)
c.) Communication and contact with nationals of the SS (Art. 36)
d.) Personal inviolability of consular officers from arrest or detention (Art. 41)
- Exceptions:
1.) grave crime; and
2.) pursuant to a decision by a competent judicial authority
e.) Notification of arrest, detention or prosecution (Art. 42)
f.) Immunity from jurisdiction for official acts. (Art. 43)
- Exceptions:
1.) civil actions arising from contract not entered into in official
capacity;
2.) civil action by a 3rd party for damage arising from an accident in
the RS cause by a vehicle, vessel or aircraft
g.) Liability to give evidence; a consular employee can’t refuse while a
consular officer may refuse without threat of coercive measure or penalty.
(Art. 44)
h.) Waiver of privilege and immunity under Art. 41, 43, and 44 by SS (Art. 45)
US v. Tehran: US Dipliomatic and Consular Staff in Iran Case ICJ (1980)
Iranian students seized the US embassy in Tehran and a number of consulates in
the outlying cities. The Iranian authorities failed to protect the embassy and
later appeared to adopt the students’ actions. Over 50 US nationals were held
hostage for 444 days.
Court must decide whether the initial attack by the students could be
attributed to the Iranian government and whether Iran was therefore in
violation of its international obligations.
In deciding in favor of the US, the ICJ ruled:
a.) The Iranian authorities were fully aware of their obligations under the
conventions to protect the premises of the US embassy and its diplomatic and
consular staff and were aware of the urgent need for action. They had the
means to perform their obligations but failed to do so.
b.) The actions required of the Iranian Government by the Vienna Conventions
and by general IL is manifest. They must immediately take every effort and
opportunity to bring the flagrant infringements of the inviolability of the
premises, archives, and diplomatic and consular staff of the US embassy to a
speedy end and to restore the consulates to the US control, and in general
reestablish the status quo and offer reparation for damage.
Public International Law
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c.) The Iranian Government’s decision to continue the subjection of the
embassy to occupation by militants and the staff to detention as hostages
clearly gave rise to repeated and multiple breaches of the Vienna Conventions,
beyond their failure to prevent the attacks.
d.) The Iranian Government did not break of diplomatic relations with the US,
not did it indicate any intention to declare any member of the US diplomatic or
consular staff in Tehran persona non grata. Thus, Iran failed to employ the
remedies placed at its disposal by diplomatic law specifically for dealing with
activities it now complains of.
D. Immunity of International Organization
- The basis of their privileges and immunities is not sovereignty but necessity
for the effective exercise of their functions.
Alfred Dunhill of London, Inc. v. Cuba
The issue is whether or not the failure of Cuba to return to Dunhill funds
mistakenly paid by the latter for cigars sold to him by certain expropriated
Cuban cigar business was an ―act of state.‖
The Court ruled in favor of Dunhill:
a.) The concept of an act of state should not be extended to include the
repudiations of a purely commercial obligation owed by a foreign sovereign or
by one of its commercial instrumentalities.
Kirkpatrick Co. v. Environmental Tectonics Corp.
A contract was entered into between the Nigerian Government and Kirkpatrick
Co. for the construction and equipment of an aeromedical center at Kaduna Air
Force base in Nigeria.
Environmental Tectonics, an unsuccessful bidder, found that Kirkpatrick had
bribed Nigerian officials to win the contract. It brought the matter to the
Nigerian Air Force and the US embassy in Lagos.
E. The Act of State Doctrine
Underhill v. Hernandez
Through the 1982 revolution in Venezuela, Gen. Hernandez who commanded
the anti-administration party, assumed leadership of the government.
US attorney for the District of NJ charged Kirkpatrick with violations of the
Foreign Corrupt Practices Act of 1977 to which the latter pleaded guilty.
George Underhill, a US citizen, had constructed a waterworks system for
Bolivar under a contract with the government and operated a machinery repair
business. Gen. Hernandez refused to grant Underhill a passport to leave the
city to coerce him to operate his waterworks and repair works for the benefit
of the community and the revolutionary forces.
Environmental Tectonics brought a civil action against Kirkpatrick to seek
damages under the Racketeer Influenced and Corrupt Organizations Act.
Underhill files a suit in the US to recover damages for the detention, his
alleged confinement to his own house, and for certain alleged assaults and
affronts by the soldiers of Hernadez’s army.
SC ruled that the act of state doctrine is inapplicable where the validity of a
foreign government act is not in question, as in this case.
In denying Underhill’s plea, the US court applied the ―act of state doctrine‖:
a.) Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one county will not sit in judgment on the
acts of the government of another, done within its own territory.
b.) Redress of grievances due to such acts must be obtained through the means
open to be availed of by sovereign powers as between themselves.
Banco Nacional de Cuba v. Sabbatino
The act of state doctrine is not a rule of international law but of judicial
restraint in domestic law, embodied by the principle of separation of powers,
whereby courts refrain from making decisions in deference to the executive
who is the principal architect of foreign relations.
叶清蓮 & DSP
Defendant moved to dismiss the complaint on the ground of ―act of state
doctrine.‖
CHAPTER 11
STATE RESPONSIBILITY
PROTECTION OF ALIENS
 No State is obliged to admit aliens into its territory unless there is a treaty
requiring it
 Generally, it is difficult to deny admission to all; Hence, States impose
legal standards for admission
 Once admitted, at least under democratic regimes, aliens may not be
expelled without due process
 Aliens = ―nationals abroad‖
 States protect aliens within their jurisdiction in the expectation that their
own nationals will be properly treated when residing or sojourning abroad
 Forms of ill-treatment of foreign nationals:
a. Mistreatment by judicial or police authorities
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b. Unlawful expropriation of property
c. Denial of justice or denial of due process of law – failure to prosecute
those who attack foreign nationals
 Diplomatic protection – the instrument used for the protection of aliens
o Injury to a national abroad = injury to the individual’s State of
nationality
o The interest of the State is in the redress of the injury to itself and not
of the injury to the individual
o Individuals are at the mercy of their own State
Neer Claim
Facts:
Mr. Neer, a US national working in Mexico, was shot to death. It was
claimed that the Mexican government had been negligent in their
investigation of the murder.
Held:
Treatment of an alien, in order to constitute an international
delinquency should amount to an outrage, bad faith, willful neglect of
duty, or to an insufficiency of governmental action so far short of
international standards that every reasonable and impartial man would
readily recognize its insufficiency.
Corporations and Shareholders
 The doctrine of ―effective link‖
Barcelona Traction Case
Facts:
The claim arose out of the adjudication of bankruptcy in Space of
Barcelona Traction, a company incorporated in Canada. The claim’s object
was to seek reparation for damage suffered by its shareholders, Belgian
nationals, as a result of acts committed contrary to international law.
Held:
The Court found that Belgium lack jus standi to exercise diplomatic
protection of shareholders in a Canadian company with respect to
measures taken against that company in Spain.
The breach, if any, was committed against the company, hence, only the
company could take action. Whenever a 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.
As to who should have the right to protect the corporation, it is the State
of Nationality of the corporation, in this case, Canada.
Standard for the Protection of Aliens
 Under the Roman Law:
1. Jus gentium – applicable to both citizens and aliens
2. Jus civile – applicable only to Roman citizens
 In modern times
1. National treatment or Equality of treatment – aliens are treated in the
same manner as nationals
o Bright side: aliens would enjoy the same benefits as local nationals
o Dark side: if the State is tyrannical and its municipal laws are harsh
and violative of human rights, then aliens would likewise be subject to
such laws
2. Minimum International Standard – however harsh the municipal laws
might be, aliens should be protected by certain minimum standards of
humane protection
叶清蓮 & DSP
Denial of Justice
 Harvard Draft Convention on the Responsibility of States for Damages
o Art. 9. Denial of Justice exists when there is
a. Denial
b. Unwarranted delay or obstruction of access to courts
c. Gross deficiency in the administration of judicial or remedial process
d. Failure to provide those guarantees which are generally considered
indispensable to the proper administration of justice
e. Manifestly unjust judgment – but error of a national court which does
not produce manifest injustice is not denial of justice
Enforcement Regimes
 Who can resolve issues of violations of the rights of aliens when appealed
to by States in conflict?
1. International Court of Justice
2. Ad-hoc tribunals established for the purpose
a. US-Iran Claims Tribunal
b. UN Compensation Settlements
3. Lump-sum Settlements (Claims Settlement Agreements)
a. US-Cambodia
b. US-Vietnam
DOCTRINE OF STATE RESPONSIBILITY
 When an injury has been inflicted, there is need to determine whether the
State can be held responsible for it
 Internationally wrongful act – committed when a State violates a customary
rule of international law or a treaty obligation
 What needs to be understood?
1. Elements of an Internationally wrongful act
2. Attributability of the wrongful act to the State
3. Enforcement of the obligation that arises from the wrongful act
INTERNATIONALLY WRONGFUL ACT
 No State can escape this responsibility when once it has committed an act
which satisfies the requirements of an ―internationally wrongful act‖
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Elements of Internationally wrongful act:
Subjective – act must be attributable not to the persons or agencies who
performed it, but to the State itself
2. Objective – act constitutes a breach of an international obligation of the
State
 What determines the wrongful character of the act is international law and
not internal law
This responsibility does not find its justification in general principles, those
regulating the judicial organization of the State. The act of an official is
only judicially established as an act of State if such an act lies within the
official’s sphere of competence.
ATTRIBUTION TO THE STATE
1. Acts of State Organs
a. Acts of any State organ whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds,
and whatever its character
o Organ – includes any person or body which has that status in
accordance with the international law of the State
b. Conduct of an entity which is not an organ of the State but which is
empowered to exercise elements of governmental authority provided
the entity was acting in that capacity in the case in question
c. Conduct of an organ placed at the disposal of a State by another State
acting in the exercise of elements of governmental authority of the
State at whose disposal it had been placed
d. Conduct of a State organ or of an entity empowered to exercise
elements of governmental authority, such organ or entity having acted
in that capacity, exceeding its authority or contravening instructions
concerning its exercise
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.

1.
CAIRE CLAIM
Facts:
Caire, a French national, was killed in Mexico by Mexican soldiers after
they had demanded money from him.
Issue:
w/n Mexico is responsible for actions of individual military personnel acting
without orders or against the wishes of their commanding officers
Held:
Objective responsibility of the States – responsibility for the acts of the
officials or organs of a State, which may devolve upon it even in the
absence of any ―fault‖ on its own
It tends to impute to the State, in international affairs, the responsibility
for all the acts committed by its officials or organs which constitute
offenses from the point of view of the law of nations, whether the official
or organ in question has acted within or exceeded the limits of his
competence.
叶清蓮 & DSP
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.
Applying to the present case, the officers in question consistently
conducted themselves as officers in the brigade of the Villista general; in
this capacity they began exacting the remittance of certain sums of money
and when Caire refused, they finally shot him.
Under these circumstances, there remains no doubt that, even if they are
to be regarded as having acted outside their competence, the officers have
involved the responsibility of the State.
CORFU CHANNEL (previous case)
NICARAGUA v. US
Facts:
Nicaragua alleges that the mining of Nicaraguan ports or waters was
carried out by US military personnel. The President of US authorized a US
Government agency to lay mines in Nicaraguan ports, either in Nicaraguan
internal waters or in its territorial sea, by persons in the pay and acting of
the instructions of such agency. US did not issue any public and official
warning to international shipping of the existence and location of the
mines; and that personal and material injury was caused by the explosion
of the mines. The imputability to US of these attacks appear therefore to
the Court to be established.
Nicaragua complains also of infringement of its air space by US military
personnel. The Court finds that only violations of Nicaraguan air space
imputable to US on the basis of the high altitude reconnaissance flights and
low altitude flights causing ―sonic booms.‖
Nicaragua also alleges that US conceived, created and organized a
mercenary army, the contra force. The Court is not able to satisfy itself
that US created the contra force but holds it largely financed, trained,
equipped, armed and organized the FDN, one element of the force.
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2.
Issue:
w/n the contras is equated as an organ of US or is acting on behalf of US
Held:
Even assuming that the ―hut tax‖ was the effective cause of the native
rebellion, it was in itself a fiscal measure to which British Government was
perfectly entitled to exercise.
Held:
The Court considers that the evidence available to it is insufficient to
demonstrate the toal dependence of the contras on US aid. A partial
dependency may be inferred from the fact that the leaders were selected
by US. There is no clear evidence that US actually exercised such a degree
of control as to justify treating the contras as acting on its behalf.
It is well established principle of international law that no government can
be held responsible for the act of rebellious bodies of men committed in
violation of its authority, where it is itself guilty of no breach of good
faith, or of no negligence in suppressing insurrection.
Acts of other Persons
Conduct of a person or group of persons acting on the instructions of,
or under the direction or control of, that State in carrying out the
conduct
b. Conduct of a person or group of persons exercising elements of the
governmental authority in the absence or default of the official
authorities and in circumstances such as to call for the exercise of
those elements of authority
a.
US v. IRAN (previous case)
3.
Acts of Revolutionaries
Conduct of an insurrectional movement, which becomes the new
government of a State
b. Conduct of a movement, insurrectional or other, which succeeds in
establishing a new State in part of the territory of a pre-existing State
or in a territory under its administration
SHORT v. IRAN
Facts:
Claimant is an American national employed by an American Company in
Iran. 3 days before the Islamic Revolutionary Government took office,
claimant was evacuated from Iran on company orders. The claimant sought
compensation for salary and other losses resulting from his alleged
expulsion contrary to international law.
Held:
Where a revolution leads to the establishment of a new government, the
State is held responsible for the acts of the overthrown government insofar
as the latter maintained control of the situation.
a.
Claimant relies only on the acts committed by revolutionaries and is unable
to identify any agent of the revolutionary movements whose actions
compelled him to leave Iran. The acts of supporters of a revolution as
opposed to its agents cannot be attributed to the government.
HOME MISSIONARY SOCIETY CLAIM (US v. BRITAIN)
Facts:
The collection of a tax newly imposed by Great Britain on the natives of
Sierra Leone known as the ―hut tax‖ was the signal for a serious and
widespread revolt in the Ronietta district.
Claimant relies on the declarations made by the leader of the Revolution.
While these statements are of anti-foreign and in particular anti-American
sentiments, these does not amount to an authorization to revolutionaries
to act in such a way that the Claimant should be forced to leave Iran.
In the course of rebellion, all US’ Missions were attacked, and either
destroyed or damaged, and some of the missionaries were murdered.
PRELIMINARY OBJECTIONS
 Claim of denial of justice may be lost due to failure to answer some
preliminary objections
a. Lack of nationality link
b. Failure to exhaust national remedies
o Purpose: to protect international courts from being swamped with
cases which are better handled locally
o Application: cases founded on diplomatic protection or on injury to
aliens
US contends that British Government is responsible for the revolt since it
wholly failed to take proper steps for the maintenance of order and the
protection of life and property, and that the loss of life and damage to
property is the result of such neglect.
Issue:
w/n the revolt is attributable to the British Government
叶清蓮 & DSP
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REPARATION
1. Obligation to make full reparation for the injury caused by the
internationally wrongful act
2. Injury consist of any damage, whether material or moral, arising in
consequence of the internationally wrongful act
3. Responsible State may not rely on the provisions of its internal law as
justification for failure to comply with its obligation
CHORZOW FACTORY CASE (GERMANY v. POLAND)
Facts:
The action of Poland which the Court has judged is not an expropriation
but is a seizure of property which could not be expropriated even against
compensation.
Held:
If follows that the compensation due to German Government is not
necessarily limited to the value of the undertaking at the moment of
disposition, plus interest to the day of payment. Such a limitation might
result in placing Germany and the interests protected by Geneva
Convention, in a situation more unfavourable than that in which Germany
and these interests would have been if Poland had respected the said
Convention. Such a consequence would not only be unjust, but also and
above all incompatible with the aim of the Convention that is the
prohibition of the liquidation of property, rights and interests of German
nationals and of companies controlled by German nationals in Upper
Silesia.
The essential principle contained in the actual notion of an illegal act is
that reparation must wipe out all the consequences of the illegal act and
re-establish the situation would have exited if that act had not been
committed.
Restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear; the
award, if need be, of damages for loss sustained which would not be
covered by restitution in kind or payment in place of its – such are the
principles which should serve to determine the amount of compensation
due for an act contrary to international law.
CALVO CLAUSE REJECTED
 A provision in a contract to the effect that ―under no condition shall the
intervention of foreign diplomatic agents in any matter related to the
contract‖ be resorted to
 This was rejected in North American Dredging Company Claim due to the
right to seek redress is a sovereign prerogative of a State and a private
individual has no right to waive the State’s right
叶清蓮 & DSP
EXPROPRIATION OF ALIEN PROPERTY
 Expropriation can be internally wrong if it is done contrary to the
principles of international law
 1962 UN General Assembly Resolution on the Sovereignty over Natural
Resources
o Expropriation shall be based on grounds or reasons of public utility,
security or the national inters which are recognized as overriding purely
individual or private interests, both domestic and foreign
o In such cases, the owner shall be paid appropriate compensation in
accordance with the rules in force in the State taking such measures in
the exercise of its sovereignty and in accordance with international law
CHAPTER 12
INTERNATIONAL HUMAN RIGHTS LAW
FROM ALIEN RIGHTS TO HUMAN RIGHTS
 Early concern about human rights was about specific classes of people, e.g.
slaves, minorities, and certain nationalities
 It was not until the birth of the United Nations that human rights of all
people became the subject of legislation
 Human Rights – those inalienable and fundamental rights which are
essential for life as human beings
 3 generations of human rights:
1. Traditional civil and fundamental rights
2. Social and economic rights
3. Right to peace, clean environment, self-determination, common
heritage of mankind, development, minority rights
AN EMERGING INTERNATIONAL BILL OF HUMAN RIGHTS
 The UN became the cradle for the development of the new international
law on human rights
 Key obligations assumed by the Organization and its Members:
1. Higher standards of living, full employment, and conditions for
economic and social progress and development
2. Solutions for international related problems
3. Universal respect for, and observance of, human rights
 These, however, do not provide for the definitions of human rights
THE COVENANT ON CIVIL AND POLITICAL RIGHTS
 The following are substantive rights:


1. Life, Liberty and Property, and Equality
This, however, does not say when protected life begins, whereas the
Philippines protects ―the life of the unborn from conception‖
There is also no provision on the right to property
Public International Law
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







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 death penalty, only after conviction for the most serious crimes
In Article 14, it is more restrictive in the matter of publicity of criminal
proceedings ―where the interest of juvenile persons otherwise requires or
the proceedings concern matrimonial disputes or the guardianship of
children
2 provisions on Right to Compensation:
1. Anyone who has been a victim of unlawful arrest or detention
2. Any person who has been a victim of miscarriage of justice unless the
non-disclosure of the unknown fact in time is wholly or partly
attributable to him
2. Torture, ill-treatment and Prison Conditions
Proscription on torture and other forms of ill-treatment that offend not
only against bodily integrity but also against personal dignity
Imprisonment in conditions seriously detrimental to a prisoner’s health
constitutes a violation of Articles 7 and 10(1) of the Covenant
3. Freedom of Movement
Right to travel within the country, right to leave the country, right to
return to one’s country, the right to change one’s residence and the right
of the aliens not to be expelled without due process
Limitations:
a. Those provided for by law
b. Necessary to protect national security, public order, public health or
morals
The separation between the right to leave and right to return to one’s
country is to make the limitation more narrow than for the right to leave
the country since exile is now prohibited by customary law and may even
be jus cogens
4. Legal Personality, Privacy and the Family
When does one become a person? The Covenant does not say.
Legal Personality
Capacity to Act
Whether citizens or aliens
May not be available to some by
reason, for instance, infancy, minority
or insanity




5. Thought, Conscience, Religion, Expression and Political Freedoms
This includes the explicit protection of the Right of Parents in the matter
of Religion for their children
Covenant prohibits ―propaganda for war‖
6. Associations and Unions
Covenant is silent about the right of government employees to form unions
which is explicit in our Constitution
叶清蓮 & DSP






7. Minorities
This guarantees ―ethnic, religious or linguistic minorities‖
This is one of the few rights which was already the subject of earlier
treaties (Treaty of Versailles and Polish-German Upper Silesia Treaty)
2-fold aspect for the concern for minorities:
1. Fear of a secessionist movement by minorities
2. Genuine concern for the human rights of minorities and the desire to
flourish
8. Self-determination of Peoples
This covers 2 important rights:
a. Right to freely determine their political status and freely to pursue
their economic, social and cultural development
b. Right for their own ends, to freely dispose of the natural wealth and
resources without prejudice to any obligation arising out of
international cooperation
Peoples – include those ruled by colonial powers; those who form a
component part of a multi-national state
2 aspects of Self-Determination:
a. Internal – this is the 2 important rights
b. External – belongs to colonies and to those non-self governing and
Trust Territories
OPTIONAL PROTOCOL ON THE COVENANT ON CIVIL AND POLITICAL RIGHTS
 This treaty is designed to enable private parties who are victims of human
rights violations
 Complaints may be filed only against States who have ratified the Protocol
THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
 The rights specific to this are social welfare rights
a. Right to work
b. Right to favorable conditions of work
c. Right to form free trade unions
d. Right to social security and insurance
e. Right to special assistance for families
f. Right to adequate standard of living
g. Right to the highest standard of physical and mental health
h. Right to education including compulsory primary education
i. Right to the enjoyment of cultural and scientific benefits and
international contracts
DUTY TO IMPLEMENT
 The Philippines is a party to the UN Charter, UNDHR, the 2 Covenants, and
to the Optional Protocol to the Covenant on Civil and Political Rights
 Treaty commitments become part of domestic law
 Those which are not self-executing provisions must be attended to by the
necessary steps, in accordance with its constitutional processes and with
the provisions of present Covenants
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
Progress Realization – State is obligated to undertake a program of
activities and to realize those rights which are recognized by the Economic
Covenant
Other Conventions on Human Rights
a. Genocide Convention
b. Convention on the Elimination of All Forms of Racial Discrimination
c. Convention on the Elimination of All Forms of Discrimination Against
Women
d. Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment
e. Convention on the Rights of the Child
f. Convention on Migrant Workers
CUSTOMARY HUMAN RIGHTS LAW
 Prohibition on Torture, Genocide, Slavery and Discrimination
INTERNATIONAL IMPLEMENTATION OF HUMAN RIGHTS LAW
 Each country has the obligation to implement human rights law within its
jurisdiction properly done through municipal or regional courts
 2 different procedures used by Human Rights Commission for responding to
violations of human rights:
a. Confidential consideration under ECOSOC Resolution 1503
o The confidential findings of the Sub-Commission are brought to the
attention of CHR
o The CHR is expected to submit its report and recommendation to the
ECOSOC
o Procedure is kept confidential, but findings invariably find their way
into media
b. Public debate procedure under ECOSOC Resolution 1235
o This carries 2 types of activities:
1. It holds annual public debates in which governments and NGOs are
given opportunity to identify specific situations which deserve
attention
2. It engages in studies and investigations of particular situations
INTERNATIONAL CRIMINAL COURT
 Until the establishment of ICC, international crimes were prosecuted in ad
hoc criminal courts (Nuremberg and Tokyo Tribunals)
 The goal of ICC is to demand individual and not collective accountability
 Its jurisdiction is limited to most serious international crimes: Genocide,
Crimes against Humanity, War crimes, and the Crime of Aggression
 Principle of Complementarity – the court of last resort
叶清蓮 & DSP
CHAPTER 13: PEACEFUL SETTLEMENT OF INTERNATIONAL
DISPUTES
What is international dispute?
 A disagreement on a point of law of fact, a conflict of legal views or
interests between 2 persons
 Must have practical effect on the relationship between the parties
Peaceful methods of settling disputes:
 Art. 2, par. 3 of UN Charter: ―All members shall settle their international
disputes by peaceful means in such manner that international peace and
security, and justice are not endangered.
 There is no obligation to settle disputes except in cases that might
endanger peace and security.
 But if a decision is made to settle disputes, the obligation is to settle
them peacefully.
Key provisions in UN Charter:
 Art. 33: (disputes likely to endanger international peace and security)
 Parties to any dispute shall first of all seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement,
resort to regional agencies or arrangements, or other peaceful means
of their choice.
 When it deems necessary, the SC shall call upon the parties to settle
their disputes by such means.

Art. 36:
 SC may, at any stage recommend appropriate procedures or methods
of adjustment.
 SC should take into consideration what has already been adopted by
the parties.
 SC should consider that legal disputes should generally be referred by
the parties to the ICJ.

Art. 37:
 If parties fail to settle disputes via Art. 33, they shall refer it to the
SC.
 If SC deems the dispute to likely endanger international peace and
security, it shall: (a) take action under Art. 36; or (b) recommend
appropriate terms of settlement.

Art. 38:
 If all parties request, SC may make recommendations for pacific
settlement.
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Classifications of peaceful means of settlement:
A. Non-judicial
 Negotiation:
 Preferred since States are hesitant to submit disputes to adjudicatory
bodies.
 No set rules:
 An agreement to negotiate may be formalized via treaty or
exchange of notes.
 May be arm’s-length or face to face.
 To be binding, parties MUST agree to it.
 Preliminary step is ―good offices‖ when a neutral 3rd party tries to
bring 2 disputants together, after which disputants look for a win-win
solution via a give-and-take process.

Mediation:
 Involves assistance of 3rd parties (approved by bother parties) who
either act as bridge between parties who don’t meet OR may sit with
the disputants to chair meetings, suggest solutions, etc.

Inquiry:
 Fact-finding done by a designated group of individuals or institutions.
 Resolves disputes based on questions of fact.

Conciliation:
 A more formal technique whereby parties agree to refer controversies
to a 3rd party to make findings of fact and recommendations.
 Generally, parties are not bound by the recommendations. Merely
clears the air.
B. Quasi-judicial
 Arbitration
 Binding settlement of a dispute on the basis of law by a non-permanent
body designated by the parties.
 The compromis d’arbitrage is agreed upon by the parties and sets out:
(a) composition; (b) jurisdiction; (c) rules of procedure to be applied.
 States cannot be required to submit to arbitration UNLESS there is a
previous agreement.
 Different from judicial settlement since parties have a greater say in
deciding the law applied, composition of tribunal, process, etc.

3 types of arbitral agreement:
a. Arbitration clause incorporated in a treaty
b. Treaties solely to establish methods of arbitration (i.e. Hague
Convention for Pacific Settlement of Disputes)
c. Ad-hoc arbitral agreements (i.e. US-Iran claims)
叶清蓮 & DSP

Arbitral decisions
 Applies international law UNLESS parties specify that some other law
applies.
 Arbitral decisions may be challenged if:
a. the arbitral body exceeds its powers
b. there was corruption on the part of a member of the body
c. failure to state reasons for the awards OR a serious departure from
fundamental rule of procedure
d. the undertaking to arbitrate OR the compromis is a nullity

Domestic courts may refuse to give recognition to arbitral awards
under Convention on the Recognition and Enforcement of Foreign
Arbitral Awards:
a. agreement to arbitrate was not valid under applicable law
b. adverse party did not receive proper notice OR was not afforded
opportunity to present its case
c. award is outside the terms of agreement to arbitrate
d. the constitution of the tribunal OR the arbitral procedure was
contrary to the agreement or the law of the state where
arbitration took place
e. award has not yet become binding, has been set aside or
suspended by a competent court where it was made
f. under the law of the adverse party, the subject matter is not
capable of settlement by arbitration
g. under the law of the adverse party, recognition or enforcement
would be contrary to public policy
C. Judicial
 ICJ
 All members of the UN are ipso facto parties to the Statute of ICJ, but
it does not mean acceptance of the court’s jurisdiction.
 Only means that the State may accept its jurisdiction.
 Only states may be parties in the court.
 General principles:
a. States cannot be compelled to submit their disputes to
international adjudication unless they consent.
b. States may limit their acceptance to certain types of disputes and
attache various conditions and reservations.

Composition of the ICJ:
 Art. 2:
 Composed of a body of (a) independent judges, regardless of
nationality, (b) with high moral character, (c) who possess
qualifications required by their countries for appointment to the
highest judicial offices OR are jurisconsults of recognized competence
in international law.
 Art. 3:
 15 members, no 2 of whom from the same State
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
If dual citizenship, nationality is based on where civil and political
rights are ordinarily exercised.


Disputes are to be settled by IL and not DL.
Court acquires jurisdiction only upon referral by both parties.


Art. 4:
The Court can form chambers, composed of 3 or more judges, for
dealing with particular categories of cases; or (b) particular cases, the
composition to be approved by the parties; or (c) at the request of the
parties.





Art. 26:
Chamber decisions are deemed Court decisions.
Art. 27:
Judges of the nationality of the parties shall retain their right to sit in
the case.
If a judge of the same nationality of a party is included in the Bench by
the Court, the other party may choose a person to sit as judge,
preferably among those nominated as candidates.
If the Bench does not include a judge of the same nationality as the
judges, the parties may choose a judge.
The President shall request the members of the Chamber to give place
as necessary.
Several parties of the same interest are deemed one party only.
3 ways to accept ICJ’s jurisdiction:
a. Ad-hoc basis (one party applies unilaterally to the Court and is
consented to by the other party)
b. Parties adhere to a treaty which accepts jurisdiction on matters of
interpretation or application of a treaty.
c. Optional system (Unilateral declaration of recognition in relation
to any other state accepting the same jurisdiction in all legal
disputes)




 Jurisdiction of the ICJ:
1. Contentious
 Art. 36:
 All cases which parties refer to it and all matters specially provided for
in the UN Charter or in treaties and conventions in force.
 Signatory states may at any time declare compulsory recognition in
relation to any other state accepting the same obligation, the
jurisdiction of the ICJ in all legal disputes concerning: [Optional
system]
a. interpretation of a treaty
b. any question of international law
c. existence of any fact which, if established, would constitute a
breach of international obligation
d. nature or extent of the reparation for breach of international
obligation
 Declarations of compulsory recognition may be made un/conditionally,
on condition of reciprocity of several or certain states, or for a certain
time.
 Submitted to the Sec.Gen. of UN
 Reciprocity enables a party to invoke a reservation to the
compulsory recognition which was not expressed in its own
Declaration BUT was expressed in the other party’s.
 In case of dispute as to Court’s jurisdiction, it shall be settled by ICJ
decision.
叶清蓮 & DSP
Aerial Incidence Case (US. vs. Bulgaria, ICJ 1959)
1. Facts:
 US acceded to the optional clause, thereby accepting the compulsory
jurisdiction of the ICJ but subsequently made a reservation for
―disputes with regard to matters which are essentially within the
domestic jurisdiction of the US, as determined by the US‖ (Connally
amendment)
 EL Al Israel airliner was driven off course by bad weather and
innocently passed through Bulgarian air space where it was shot down
by Bulgarian military planes, killing all passengers and crew, including
6 US nationals.
 Investigators argue that Bulgarian military failed to adhere to
international civil aviation agreements involving appropriate
interception and identification of intruding aircraft.
 The case was initially brought to the ICJ by Israel, where ICJ ruled that
it had no jurisdiction, stating that Bulgaria’s acceptance of the
optional clause in the Statute of PCIJ did not carry over to acceptance
of the optional clause of the ICJ.
 US continued its claim based on violation of international law and
injuries to US nationals.
 On grounds of reciprocity and consensual basis of ICJ jurisdiction,
Bulgaria contests ICJ’s jurisdiction. Bulgaria had invoked the Connelly
amendment exempting matters within its internal competence and
contended that its airspace security and anti-craft defenses were
within its domestic jurisdiction.
 US withdrew its application, which the Court accepted as the end of
the dispute.
Nicaragua vs. US (ICJ, 1984)
I. Facts:
 In 1964, the US made a Optional Clause Declaration with a reservation
that ―it would remain in force for 5 years and thereafter until the
expiration of 6 months after notice was given to terminate.‖
 The 1984 notification was deposited with the Sec.Gen. by the US,
stating that ―the 1946 declaration shall not apply to disputes with any
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

Central American State or arising out of events in Central
America...this notice shall take place immediately and remain in force
for 2 years.‖
The ICJ initially found that Nicaragua could rely on the 1946
declaration since it was a ―state accepting the same obligation‖ on the
basis if its own declaration under the Statute of the PCIJ.
US contends that the 1984 notification should be given effect, thereby
taking away the court’s jurisdiction over the case.
II. Held:
 In its 1946 declaration, the US included a proviso which required a 6
months’ notice prior to termination.
 US contends that Nicaragua was not a ―state accepting the same
obligation‖ since its own declaration was of undefined duration and
thus liable to immediate termination. Thus, Nicaragua could not rely
the the US’ time-limit proviso under the principle of reciprocity.
 However, the Court found the same untenable, given that the timelimit proviso was made by the US freely and by its own choice.
 Furthermore, the notion of reciprocity is concerned with the scope and
substance of commitments (including reservations) and not with the
formal conditions of their creation, duration or extinction. Reciprocity
cannot be invoked to excuse departure from the terms of the State’s
own declaration.
 Nicaragua can invoke the 6 months notice not on the basis of
reciprocity but because it is an undertaking which is an integral part of
the instrument that contains it.
Case concerning East Timor (Portugal vs. Australia, ICJ 1995)
I. Facts:
 Portugal initiated proceedings against Australia for the latter’s ―failure
to observe the obligation to respect the duties and powers of Portugal
as the administering power of East Timor and the right of the people of
ET to self determination and related rights‖ pertaining to the Treaty of
1989 for the creation of a zone of cooperation in the area between
East Timor and Northern Australia.
 As basis for jurisdiction, it referred to the declarations of both states
under the optional system.
 Australia contends that the real dispute is between Portugal and
Indonesia and that the latter has not signed the optional clause.
 The Court ruled that w/n Portugal has rightly formulated
complaints against Australia, the fact that the latter denied the
same created a legal dispute.
 Australia contends that the effect of Portugal’s application would
require the Court to determine the rights and obligations of Indonesia
to settle the validity of the treaty between Australia and Indonesia.
 Portugal insists that the dispute is exclusively based on the objective
conduct of Australia when the latter negotiated, concluded and
initiated performance of its treaty with Indonesia.
II. Held:
叶清蓮 & DSP




Court found that Australia’s behavior cannot be assessed without first
entering into the question of why Indonesia could not lawfully have
concluded the 1989 treaty. The very subject matter would be a
determination whether, having regard to the circumstances in which
Indonesia entered and remained in East Timor, it could/not have
acquired power to enter into treaties on behalf of ET relating to
resources of its continental shelf. The court cannot make such
determination without the consent of Indonesia.
W/N the behavior of Australia breaches rights erga omnes (ET’s right
to self determination), the Court cannot rule on the lawfulness of the
conduct of a State when its judgment would imply an evaluation of the
lawfulness of the conduct of another State which is not a party to the
case. Further, the nature of the obligation is different from the rule of
consent to jurisdiction.
Finally, the court ruled that it cannot be inferred from the sole fact
that a number of resolutions of the GA and the SC refer to Portugal as
the administering Power of ET that they intended to establish an
obligation on 3rd states to treat exclusively with Portugal as regards the
continental shelf of ET.
Provisional Measures
 Art. 41:
 ICJ has the power to indicate any provisional measures which ought to
be taken to preserve the respective rights of either party
 Pending final decision, notice of the measures suggested shall be given
to the parties and the SC.
Nicaragua vs. US
I. Facts:
 Court finds it necessary to indicate provisional measures under Art. 41
to preserve the rights claimed. Such decision in no way prejudges the
question of jurisdiction to deal with the merits of the case.
 Such measures include:
a. US should cease and refrain from any action restricting, blocking
or endangering access from or to Nicaraguan ports, and in
particular, laying mines.
b. The right to sovereignty and political independence of Nicaragua.
States should refrain from using force or threat of force against its
territorial integrity or political independence. States should not
intervene in matter within the domestic jurisdiction of a State.
c. The governments of US and Nicaragua should ensure that no action
is made to aggravate or extend the dispute.
d. Both Governments should ensure that no action is taken which
might prejudice the rights of the other party in respect to the
carrying out of whatever decision the Court may render.
e. Until final judgment, the Court will keep matters covered by this
order continuously under review.
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f.
Written proceedings shall first be addressed to the question of
jurisdiction of the Court.
Case concerning legality of use of force (Yugoslavia vs. US, ICJ, 1999)
I. Facts:
 By request of the Federal Republic of Yugoslavia against the NATO
states (Belgium, Canada, France, Germany, Italy, Netherlands,
Portugal, Spain, UK, US) in relation to the bombings carried out by NA
8:00 AM forces.
 Court recognizes that it can exercise jurisdiction only between states
parties to a dispute who not only have access to the Court but also
have accepted the jurisdiction of the Court, either in general form or
for the individual dispute concerned.
 In requests for provisional measures, the Court need not, before
deciding w/n to indicate them, finally satisfy itself that it has
jurisdiction on the merits of the case, yet only if the provisions
invoked by the applicant appear, prima facie, to afford a basis on the
the jurisdiction of the Court might be established.
 Yugoslavia claims ICJ jurisdiction based on Art. IX of the Genocide
Convention to which both parties are signatories.
 US contends that it made a clear and unambiguous reservation that
―with reference to Art. IX, specific consent of the US is required in
each case.‖
 Further, (a) reservations in the Genocide Convention are generally
permitted; (b) the reservation is not contrary to its object and
purpose; (c) absence of Yugoslavia’s objection to the reservation
means acceptance.
 US adds that there no legally sufficient basis between the charges
against the US and the supposed jurisdictional basis under the GC.
II. Held:
 Court accepts US’ contentions and finds that it does not have
jurisdiction to entertain the dispute between Yugoslavia and the US
alleged to fall under the provisions of the GC, and that Article
manifestly does not constitute a basis of jurisdiction in the present
case, even prima facie.
 Even under Art. 38, par. 5 of the Rules of Court which allows the
jurisdiction of the Court to be founded upon the consent thereto yet to
be manifested or given by the other party, the fact that US has not
made such consent does not create a prima facie jurisdiction allowing
the Court to indicate any provisional measure.
 There is a fundamental distinction between the question of acceptance
by a State of the Court’s jurisdiction and the compatibility of
particular acts with international law.
 W/N States accept jurisdiction, they remain responsible for acts
attributable to them that violate IL, including humanitarian law.
Disputes relating to the legality of such acts MUST be resolved by
peaceful means chosen by the parties.
叶清蓮 & DSP

Intervention
 Art. 62:
 If a State has an interest of a legal nature which may be affected by
the decision in the case, it may submit a request to the Court to be
permitted to intervene, which the Court shall decide at its discretion.



Art. 63:
Registrar shall inform all parties to a convention regarding cases which
relate to its construction.
Every state notified has the right to intervene, but the construction
given by the judgment shall be binding on the intervenor.
El Salvador vs. Honduras (Nicaraguan Intervention, ICJ 1992)
I. Facts:
 Nicaragua filed an application to intervene based on Art. 62:
a. to protect the legal rights of the Republic of Nicaragua in the Gulf
of Fonseca and the adjacent maritime areas by all legal means
available
b. to inform the Court of its legal rights which are in issue in the
dispute
 The Court points out that there must be a legal interest that may be
affected. Further, Rules of Court require a statement of the ―precise
object of intervention.‖ Court finds that the subject of intervention is
proper.
 El Salvador contends that for intervention to be proper, Nicaragua
must also show a ―valid like of jurisdiction‖ between Nicaragua and
the Parties.
 Nicaragua however bases jurisdiction only upon the ICJ Statute and
states that Art. 62 does not require a separate title of jurisdiction.
II. Held:
 The Court’s decision’s binding power rests upon the agreement of both
parties to the case to confer jurisdiction upon the Court. Normally,
therefore, no other State may involve itself in the proceedings without
the consent of the original parties.
 However, procedures for a 3rd state to intervened are provided in Art.
62 and 63 of the Court’s Statute. The Court’s competence in this
matter is not derived from the consent of the parties to the case, but
the the consent given by them, in becoming parties to the Court’s
statute. Thus, the Court has competence to permit intervention
(subject only to the requirements of object and purpose) even if both
parties oppose.
 A state allowed to intervene does not become a party to the case. It is
not allowed to tack on a new case nor have its own claims adjudicated
by the Court.
 It does not acquire the rights or become subject to the obligations,
which attach to the status of a party. It has the right to be heard by
the Chamber, but limited to the scope of its legal interests.
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
Obligation to comply with decisions
 Art. 59:
 No binding force except as between the parties and in respect to that
particular case


Art. 60:
Final without appeal. In the event of dispute as to (a) meaning or (b)
scope of the judgment, the Court shall construe it upon request of any
party.


Art. 61:
Application for Revision of a judgment may be made only when based
upon newly discovered fact, which must be: (a) a decisive fact; (b) at
the time judgment was given, was unknown to the Court and to the
party; (c) such ignorance was not due to negligence.
The Court must first decide whether the fact is of such character as to
lay the case open to revision, and declaring the application admissible.
The Court may require previous compliance with the terms of
judgment before it admits proceedings in revision.
Application must be made within 6 months from discovery and within
10 years from date of judgment.







Art. 94 of UN Charter:
If any party fails to perform any obligation under ICJ judgment, the
other party may have recourse to the SC, which may make
recommendations OR decide upon measures to be taken to give to the
judgment.
Such enforcement measures are subject to veto powers of the
permanent members.
Winning state may make uses of alternative methods of enforcement,
such as economic or diplomatic pressure.
2. Advisory
 non-binding
 non/acceptance depends on internal law of the institution


Art. 66:
 Registrar shall:
a. give notice of the request to all state entitled to appear before
the Court
b. via special and direct communication, notify any state entitled to
appear or international organization likely to furnish information
on the question, within a time limit fixed by the President, that
the Court will be prepared to receive written statements OR hear
at a public sitting oral statements relating to the question
 If an entitled state fails to receive notification, it may express a desire
to submit a written statement or to be heard, and the court will
decide.
 Parties which presented shall be permitted to comment on statements
made by others.
CHAPTER 14
THE USE OF FORCE SHORT OF WAR
Use of Force
 General Principle: International law recognizes the
a. Autonomy of individual states
b. Their right to freedom from coercion and to the integrity of their
territory
Art. 2(4) of the UN Charter:
All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.

The above text does not use the word ―war‖ because it is a technical term
which does not include some uses of force
o Hence, the prohibition is broader than the prohibition of war noting
that it applies to ―any other matter inconsistent with the Purposes of
the United Nations‖
Corfu Channel
Art. 96 UN Charter:
 SC and GA may make requests for advisory opinion. GA may also
authorize other UN agencies to seek advisory opinion on legal questions
arising within the scope of their activities.
Art. 65:
 Advisory jurisdiction in accordance with the UN Charter
 On any legal matter at the request of any body authorized to do so.
 Through written requests containing (a) the exact statement of the
question and (b) all documents likely to throw light upon the question.
叶清蓮 & DSP

Facts:
After a British warship had been struck by mines, Britain sent additional warships to
sweep the minefields within Albanian territory arguing the theory of intervention where
its objective was to secure the mines for possible fear that they should be taken away,
and the theory of self-help.
Held:
The Court cannot accept these lines of defense. It can only regard the alleged right of
intervention as the manifestation of policy of force which cannot find a place in
international law.
The Court is also unable to accept the theory of self help as between independent States,
the respect for territorial sovereignty is an essential foundation for international
relations.
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
Nicaragua v. US
The prohibition of the use of force is customary international law
The general rule prohibiting force established in customary law allows for certain
exceptions. The exception of the right of individual or collective self-defense is also
established in customary law, which Art. 51 refers to an ―inherent right‖.
Nicaragua v. US
Consent to such resolutions is one of the forms of expression of an opinio juris with regard
to the principle of non-use of force, regarded as a principle of customary international
law, independently of the provisions, especially those of an institutional kind, to which it
is subject on the treaty-law plane of the Charter
Threat of Force
 Charter prohibits not just use of force but also the threat of force
 Typical form of threat of force:
o A State is given an ultimatum, a time-limit, within which to accept the
demands made upon it and is told that, if it rejects the demands, war
will be declared on it or certain coercive measures will be taken
 Examples of coercive measures:
a. Naval blockade
b. Bombardment
c. Occupation of a given territory
Legality of the Threat or Use of Nuclear Weapons
The Charter recognizes the inherent right of individual or collective self-defense if an
armed attack occurs. The entitlement to resort to self-defense is subject to the conditions
of necessity and proportionality.
A further lawful use of force is envisage whereby the Security Council may take military
enforcement measures in conformity of the Charter.
These apply to any use of force, regardless of the weapons employed.
Individual and Collective Self-Defense
 Exception to the prohibition of the use of force
The Parties agree in holding that whether the response to an attack is lawful depends on
the observance of the criteria of necessity and the proportionality of the measures taken
in self-defense.
Whether self-defense be individual or collective, it can only be exercised in response to
an ―armed attack.‖ The Court does not believe that the concept of ―armed attack‖
includes assistance to rebels. Furthermore, the Court finds that in customary international
law, there is no ruling permitting the exercise of collective self-defense in the absence of
a request by the State which is a victim of the alleged attack, this being additional to the
requirement that the State should have declared itself to have been attacked.
Is anticipatory self-defense allowed?
 2 views:
1. States do not invoke the right because they are afraid that it might be
used against them too
2. Israel launched a preemptive strike against its Arab neighbors but the
UN did not condemn the act
 In the case of the Gulf War against Iraq, the Allied forces came on
invitation of Kuwait which was under invasion
 The right to use force to defend claimed territory was rejected in the
Falkland War
Traditionally Allowable Coercive Measures
1. Severance of Diplomatic Relations
o Reason: there is no obligation to maintain diplomatic relations
o Limitation: not be resorted unless truly necessary because it might
endanger peace
o Suspension involves withdrawal of diplomatic representation but
not of consular representation
2.
Retorsion
o Any forms of counter-measures in response to an unfriendly act
o Includes:
a. Shutting of ports to vessels of an unfriendly State
b. Revocation of tariff concessions not guaranteed by treaty
c. Display of naval forces near the waters of an unfriendly State
3.
Reprisal
o Any kind of forcible or coercive measures where by one State seeks
to exercise a deterrent effect or obtain redress or satisfaction,
directly or indirectly, for the consequences of illegal act of
another State which has refused to make amends for such illegal
acts
o This must be preceded by an unsatisfied demand for reparation
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Article 51
Measures taken by Members in the exercise of this right of self-defense shall be
immediately reported to the Security Council and shall not in any way affect the authority
and the responsibility of the Security Council to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.
叶清蓮 & DSP
4.
NATO, The UN and the Use of Force: Legal Aspects
Bruno Simma
Embargo
o A lawful measure
o Consists of:
a. Seizure of vessels even in the high seas
b. State keeps its own vessels for fear that it might find their
way in foreign territory  pacific embargo
c. Seizure of import of drugs or of oil  collective embargo
5.
Boycott
o A form of reprisal which consists of suspension of trade or business
relations with the nationals of an offending State
6.
Non-intercourse
o Suspension of all commercial intercourse with a State
7.
Pacific Blockade
o Naval operation carried out in time of peace whereby a State
prevents access to or exit from particular ports or portions of coast
of another State
o Purpose: compel a State to yield to demands by the blockading
State
Protection of Nationals Abroad
 Right to defend nationals abroad is an aspect of the right to self-defense
since population is an essential element of Statehood
 Examples of forcible rescue of nationals
a. Raid of Entebee in Uganda
b. US intrusion into Stanleyville to rescue American students
Humanitarian Intervention
 The prohibition in Art. 2(4) is now considered jus cogens
 Prevailing opinion: intervention without the authorization of the Security
Council violates international law
叶清蓮 & DSP
Certain points on Humanitarian Intervention
a. If the Security determines that massive violations of human rights occurring
within a country constitute a threat to the peace, and then calls for or
authorizes an enforcement action to put an end to these violations, a
humanitarian intervention by means of military is permissible
b. When humanitarian crises do not transcend borders and lead to armed attacks
against other States, recourse to Art. 51 is not available
Reasons for the majority legal opinion against the existence of a right of Humanitarian
Intervention:
1. UN Charter and the corpus of modern international law do not seem to
specifically incorporate such right
2. State practice provides only a handful of genuine cases of humanitarian
intervention
3. Scope for abusing such a right argues strongly against its creation
Whether we regard the NATO threat employed in the Kosovo crisis as an ersatz
humanitarian intervention, or as a threat of collective counter-measures involving armed
force, any attempt at legal justification will ultimately remain unsatisfactory

Under certain strict conditions, resort to armed force may gradually
become justified, even absent any authorization by the Security Council
Ex Injuria Oritur Jus
Antonio Cassese
Conditions:
1. Gross and egregious breaches of human rights involving loss of life of hundreds
or thousands of innocent people, and amounting to crimes against humanity
2. Such crimes against humanity result from anarchy in a sovereign State, proof is
necessary that the central authorities are utterly unable to put an end to those
crimes while at the same time refusing to call upon or to allow other States or
international organization to enter the territory to assist in terminating the
crimes
3. Security Council is unable to take any coercive action to stop it because of
disagreement among the Permanent Members or because one or more of them
exercises its veto power
4. All peaceful avenues have been exhausted, notwithstanding which, no solution
can be agreed upon by the parties to the conflict
5. A group of States decides to try to halt the atrocities, with the support or at
least the non-opposition of the majority of Member State of UN
6. Armed force is exclusively used for the limited purpose of stopping the
atrocities and restoring respect for human rights
7. Use of force must be commensurate with and proportionate to the human rights
exigencies on the ground
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CHAPTER 15
THE LAW OF WAR
INTERNATIONAL HUMANITARIAN LAW
 Previously known as Laws of War
a. Provides for instances when the use of armed force is justifiable – jus ad
bellum
b. Regulates the conduct of armed conflict – jus in bello
 Early international law did not consider as illegal a war admittedly waged
for the purpose of gaining political or other advantages over another State
Art. 2(4) of the UN Charter:
All Members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the Purposes of the United Nations.


The above provisions outlaws war
The paradox is that side by side with the prohibition of armed conflict is
the proliferation of laws of war
o 3 facts which explain the paradox:
a. Those who resort to the use of arms do not give up until they have
achieved victory
b. Humanitarian considerations dictate the need for rules which curtail
violence beyond what is necessary to achieve a State’s goal
c. There still remains in the hearts of the soldiery an acceptance of
chivalry as a value
 On the assumption that wars can always occur, there arose the need to
formulate laws that can humanize the conduct of war
THE HAGUE LAW
 In 1899, 26 Countries met at The Hague and promulgated Conventions and
Declaration which adopted the principles constituting the law of armed
conflict, Law of the Hague, governing land and naval warfare
GENEVA CONVENTIONS OF 1949
 Essence: persons not actively engaged in warfare should be treated
humanely
o Geneva ―Red Cross‖ Conventions
a. Wounded and Sick in the Field
b. Wounded, Sick and Shipwrecked at Sea
c. Prisoners of War
d. Civilians
叶清蓮 & DSP
CUSTOMARY and CONVENTIONAL LAW
 What is embodied in Hague and Geneva Conventions are customary law
o Thus, non-parties are still covered
Commencement and Termination of Hostilities
 Under Hague Convention III, for an armed conflict to be considered a war,
the hostilities should be preceded by a declaration of war or an ultimatum
with a fixed limit
 While the Constitution gives to the legislature the power to declare the
existence of a state of war and to enact all measures to support the war,
the actual power to make war is lodge in the executive
 The commencement of hostilities result in the severance of all normal
relations, including treaties, except treaties of a humanitarian character
 Nationals of a combatant State residing in enemy territory become subject
to restrictions which the enemy might impose subject to limitations found
in customary or treaty law
 Merchant vessels found in enemy territory are given a period of grace to
depart
 Laws of armed conflict remain in effect until the conflict is terminated, by
means of a
a. peace treaty
b. in the absence thereof, by declaration made by the combatant states
that hostilities have come to an end
 Armistice – an agreement to suspend hostilities, whether local or general,
does not end the conflict but only puts an end to the active fighting
Protocol I
 International armed conflict includes armed conflicts in which peoples are
fighting against
a. Colonial denomination
b. Alien occupation
c. Racist regimes
 Those engaged in such conflict receive combatant status and are entitled
to combatant rights
o Instead being treated as ordinary criminals when captured, they are
treated as prisoners of war
METHODS OF WARFARE: JUS IN BELLO
 Declaration of St. Petersburg:
o The only legitimate object which States should endeavor to accomplish
during war is to weaken the military forces of this enemy
o This object would be exceeded by the employment of arms which
uselessly aggravate the sufferings of disabled men, or render their death
inevitable
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

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
Legality of the Threat or Use of Nuclear Weapons (ICJ 1996)
Cardinal Principles constituting the Fabric of Humanitarian Law:
1. States must never make civilians the object of attack and must
consequently never use weapons that are incapable of distinguishing
between civilian and military targets
2. It is prohibited to cause unnecessary suffering to combatants
INTERNATIONAL COMMISSION ON RED CROSS
Basic Rules Governing Armed Conflicts:
1. Soldier’s Rules
a. Fight only enemy combatants and attack only military
objectives
b. Prisoners of war must be treated humanely and are bound to
give only information about their identity
c. Looting is prohibited. Respect other’s property.
2. Fundamental Rules of International Humanitarian Law Applicable to
Armed Conflicts
a. Persons hors de combat and those who do not take a direct
part in hostilities are entitled to respect for their lives and
moral and physical integrity
b. It is forbidden to kill or injure an enemy who surrenders or is
hors de combat
3. Non-International Armed Conflicts
a. Obligation to distinguish between combatants and civilians
b. Prohibition of attacks against the civilian population as such or
against individual citizens
c. Customary rule prohibiting the use of chemical weapons,
bullets which expand or flatten easily in the human body,
poison as means of warfare, and booby-traps
NEUTRALITY
 To adopt an attitude of impartiality towards the belligerents
 Such attitude must be recognized by belligerents and creates both rights
and duties in the neutral states
 Neutrals must not engage in activities which interfere with the activities of
the belligerents
NON-INTERNATIONAL CONFLICTS
 Civil wars or rebellion do not violate international law
 International law on armed conflict does not apply to internal conflicts
叶清蓮 & DSP


Outside help for governments experiencing rebellion is legitimate provided
requested by the government
Aid to rebels is contrary to international law
Common Article 3
 In case of armed conflict not of an international character, persons should
still be accorded a minimum humanitarian protection
 Prohibited acts:
a. Violence like murder of all kinds, mutilation, cruel treatment and
torture
b. Taking of hostages
c. Outrages on human dignity
d. Passing of sentences and carrying out of executions without previous
judgment pronounced by a regular court
 International Committee of the Red Cross – an impartial humanitarian body
Protocol II
 The first and only international agreement exclusively regulating the
conduct of parties in a non-international armed conflict
 International armed conflict – that which takes place in the territory of a
Contracting Party between its armed forces and dissident armed forces or
other organized armed groups which
 Material Field of Application:
a. Armed dissidents must be under responsible command
b. They must ―exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations
and to implement this Protocol
INTERNATIONAL TERRORISM
 There is no crime terrorism in Philippines statute books but some acts are
considered terroristic and are independently punished by the RPC
 Terrorism Act (British Law) – violent moves against person or property or
against public health and safety which have for their purpose to influence
the government or to intimidate a section of the public or to advance a
political, religious or ideological cause
 Draft of an International Convention for the Suppression of the Financing of
Terrorism:
o Any person commits an offense of terrorism if he does an act intended to
cause:
a. Death or serious bodily injury to any person
b. Serious damage to a State or Government Facility with the intent to
cause extensive destruction
 Attack on WTC on 9-11 was characterized as Crime against Humanity
through the atrocious character exhibited by the act: its magnitude,
gravity, targeting of civilians
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o

The importance of this characterization is that it led to what seems to be
a development in the international law of self-defense
Self-defense – legitimate response to an armed attack by a State
CHAPTER 16
INTERNATIONAL ENVIRONMENTAL LAW

Sec. 16, Art. 2 of the Constitution. The State shall protect and advance
the right of the people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature.

The protection of the environment is now also a concern of international
law
a. Protection of the atmosphere, the sea, land, flora and fauna
b. Preservation of the cultural heritage of mankind
The protection of the environment is a vital part of contemporary human
rights doctrine, for it is a sine qua non for numerous human rights such as
the right to health, and the right to life itself






WHO HAVE ENVIRONMENTAL RIGHTS?
 Persons capable of having rights
 Minors pleading for intergenerational protection (Factoran case)

SUSTAINABLE DEVELOPMENT
 A concept adopted by the World Commission on Environment and
Development
 This encourages development in a manner and according to methods which
do not compromise the ability of future generation and other States to
meet their needs
EMERGING PRINCIPLES
 The following are only declarations, they do not have the force of law
1. Stockholm Declaration
 Man has fundamental right to freedom, equality and adequate conditions
of life, in an environment of a quality that permits a life of dignity and
well-being, and he bears a solemn responsibility to protect and improve
the environment for present and future generations
 Natural resources of the earth, including the air, water, land, flora and
fauna and especially representative samples of natural ecosystems, must
be safeguarded
 Man has a special responsibility to safeguard and wisely manage the
heritage of wildlife and its habitat
 The struggle of the peoples of ill countries against pollution should be
supported
 States shall take all possible steps to prevent pollution of the seas
叶清蓮 & DSP


ENVIRONMENTAL CONCERNS



Resources should be made available to preserve and improve the
environment
Rational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve
the environment
International matters concerning the protection and improvement of the
environment should be handled in a cooperative spirit by all countries on
an equal footing
Man and his environment must be spared the effects of nuclear weapons
and all other means of mass destructions
2. Rio Declaration
Human beings are at the center of concerns for sustainable development
States have the sovereign right to exploit their own resources
In order to achieve sustainable development, environmental protection
shall constitute an integral part of the development process and cannot be
considered in isolation from it
The special situation and needs of developing countries shall be given
special priority
Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level
States shall develop national law regarding liability and compensation for
the victims of pollution and other environmental damage
States shall immediately notify other States of any natural disasters or
other emergencies that are likely to produce sudden harmful effects on the
environment of those States
Warfare is inherently destructive of sustainable development
Some Treaties
a. Vienna Convention for the Protection of the Ozone Layer – the layer of
the atmospheric ozone above the planetary boundary layer
b. UN Conference on Environment and Development – stabilization of
greenhouse gas concentration in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate system
c. Kyoto Protocol – protection of the atmosphere
d. Convention on International Trade in Endangered Species of Wild Fauna
and Flora
e. Convention on Biological Diversity
Regional Treaties
a. Treaty of Rome
b. North American Agreement on Environmental Cooperation
c. Protocol on Environmental Protection to the Antarctic Treaty
d. Amazon Declaration
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CHAPTER 17
INTERNATIONAL ECONOMIC LAW
3.
What is International Economic Law?
 In its broadest sense includes all international law and international
agreements governing economic transactions that cross state boundaries or
that otherwise have implications for more than one state
o Those involving the movement of
a. Goods
e. Technology
b. Funds
f. Vessels
c. Persons
g. Aircraft
d. Intangibles
 Characteristics:
1. It is part of public international law
o Treaties alone make this so
2. It is intertwined with municipal law
3. It requires multi-disciplinary thinking
4. Empirical research is very important for understanding its operation
Important Economic Institutions
 Objectives of the Bretton Woods Conference of 1944:
1. To advance the reduction of tariffs and other trade barriers
2. To create a global framework designed to minimize economic conflicts
 International Monetary Fund
o Function: to provide short-term financing to countries in balance of
payments difficulties
 International Bank for Reconstruction and Development [World Bank]
o Provide long-term capital to support growth and development
 International Trade Organization (ITO)
o Promote a liberal trading system by proscribing certain protectionist
trade rules
o ITO  General Agreement on Tariff and Trade (GATT)  World Trade
Organization (WTO)
 WTO
o Oversees the operation of GATT and a new General Agreement on
Trade and Services
Key Principles of International Trade Law
1. Agreed Tariff Levels
o GATT contains specified tariff levels for each State
o However, these can be re-negotiated
2. Most Favored Nation Principle
o Embodies the principle of non-discrimination
o Any special treatment given to a product from one trading partner
must be available for like products originating from or destined for
other contracting partners
o Tariff concessions
叶清蓮 & DSP
4.
Principle of National Treatment
o Prohibits discrimination between domestic producers and foreign
producers
o Once foreign producers have paid the proper border charges, no
additional burdens may be imposed on foreign products
Principle of Tariffication
o Prohibits the use of quotas on imports or exports and the use of
licenses on importation or exportation
o Purpose: to prevent the imposition of non-tariff barriers
o Exception:
 GATT provides for a quantitative and temporary basis for
balance of payments or infant industry reasons in favor of
developing states
Exceptions to Key Principles
1. General exceptions
a. Public morals
b. Public health
c. Currency protection
d. Products of prison labor
e. National treasures of historic, artistic or archaeological value
f. Protection of exhaustible natural resources
2. Security exceptions
3. Regional Trade exceptions
4. Exceptions for developing nations [Tanada v. Angara]
Dispute Resolution Body
 Established by the WTO agreement
 Consists of General Council of the WTO
 Operates under the Understanding on Rules and Procedures Governing the
Settlement of Disputes 1994
a. Each State has a right to establish a Panel
b. It provided for a permanent Appellate Body consisting of persons with
recognized expertise in law
Expanding Scope of International Economic Law
 Uruguay Round of 1994 expanded the scope of the multilateral trade
regime
 It includes:
a. Intellectual property
b. Services
c. Sanitary and physiosanitary measures
d. Investment
e. Strengthening of the rules on subsidies, countervailing duties and atidumping
 International Economic Law affects the sovereignty of States and their
capacity to give force to national policy objectives
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