P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

Page 1 of 25

CHAPTER I THE NATURE OF INTERNATIONAL LAW
INTERNATIONAL LAW, IN GENERAL
What is international law? It is the law governing the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical. 1 What is the scope of international law? Generally, international law covers a wide range of matters involving maintenance of peace, protection of the environment, human rights, war, and space expeditions among other things.2 Under international law, there are subjects and objects. Who are the subjects and objects of international law? According to the Reparations Case, a subject of international law is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims. Objects of international law, on the other hand, are those who indirectly have rights under, or are beneficiaries of, international law through subjects of international law. Is international law a law? Strictly speaking, there can be no law binding all sovereign states. However, according to Henkin, there remains a general respect for law, by virtue of which the States observe the principles of international law.

Public International Law governs the relationship among States and also their relations with international organizations and individual persons. Private International Law (Conflict of Laws) is domestic law which deals with cases wherein foreign law intrudes into the domestic sphere. It concerns: first, in which legal jurisdiction may a case be heard; and second, the law concerning which jurisdiction applies to the issues in a case.

JUS GENTIUM AND JUS INTER GENTES AS ELEMENTS OF PUBLIC INTERNATIONAL LAW.
What is jus gentium? Jus gentium was originally part of Roman Law that the Romans applied to its dealings with foreigners, especially provincial subjects. Presently, it is used to refer to the natural or common law among nations considered as States within a larger human society, especially governing the rules of peace and war, national bounderies, diplomatic exchanges, and extradition. Together with jus inter gentes, jus gentium makes up Public International Law. What is jus inter gentes? Jus inter gentes consists of agreements between nations and includes the body of treaties, UN conventions, international agreements, and internationally recognized human rights.

HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW
• • Jus gentium (“law common to all men”) evidenced from treaties between Jews and Romans Hugo Grotius authored De Jure Belli ac Pacis and coined the term “law of nations”. Later given the name “international law by Jeremy Bentham Peace of Westphalia (1648) o Ended the Thirty Years war (1618-1648) and established a treaty based framework for cooperation. o Gave birth to pacta sunt servanda3 Congress of Vienna (1815) o Ended the Napoleonic Wars and created a sophisticated system of multilateral and economic cooperation. Covenant of the League of Nations (1920) o Ended World War 1 and included the Treaty of Versailles4

THEORIES ON INTERNATIONAL LAW
• 1. Command Theory (John Austin)– “law consists of command emanating from a sovereign.” Under this theory, international law is not law because it does not emanate from a sovereign. Consensual Theory – international law derives its binding force from the consent of the States. (ex: treaties, custom) Natural Theory – law is derived by reason from the nature of man. International law is derived from the application of natural reason to the nature of the state-person.

2. 3.

What is the difference between Public International Law and Private International Law?
1 2

Restatement of Foreign Relations Law of the United States Bernas; Public International Law, 2010.

3

pacta sunt servanda simply means that agreements made must be complied with in good faith. This principle is found in Article 26 of the VCLT.

Kat Aguila

Kach H irang-O lave

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER
Bernas + Brownlie + Cruz + Shaw + Lecture Notes
• League of Nations (1920) o The LoN was created as a result of the Treaty of Versailles, and was the precursor to the United Nations, at most it had 58 member states. o The League also created the Permanent Court of International Justice (PCIJ), which is the precursor to the current International Court of Justice (ICJ). o The United States was not a member of the League of Nations o The problem was that the League of Nations was not able to prevent World War II. This was because the mechanism of the League of Nations provided not for the prevention of war, but merely for a ‘cool off’ period. If after such time, they still desired to make war with each other, there was no obligation for them not to do so. World War II (1939-1945) United Nations (1945) o The LON was unable to prevent World War II from occurring. There arose a need to establish a new international institution that shifted power away from Europe. Hence, the UN was born. Cold War (1947-1991) o Primarily a war between the Soviet Union and the US and its allies. o During this period, three factions arose in the inernational community: the Western States, the socialist states and the developing countries. 1995 was a very important year for the development of international law, as this was the year that the WTO was created. WTO had, and still has, the most effective dispute settlement system, even more effective than the ICJ.5

Page 2 of 25

• •

4 The Treaty of Versailles was entered into in June 28, 1919. It was primarily for the purpose of ending World War 1 and charged former German Emperor, Wilhelm II, with supreme offense against international morality. He is to be tried as a war criminal. 5 Lecture, November 18, 2010

Kat Aguila Kach H irang-O lave

involving a fairly quick maturing of practice. State Practice 6 State practice has three elements: (a) Duration o There is no required length of time before a particular state practice may be considered custom. Opinio Juris Opinio Juris is the belief that a certain form of behavior constitutes a legal obligation. According to the ICJ in the North Sea Continental Shelf Cases. therefore. whether general or particular. VCLT 8 Lecture. (b) Consistency o State practice must be continuous and repetitive. 2. As a matter of fact. Note. 2010 Kat Aguila Kach H irang-O lave . state practice need not be extant for long periods of time. it only needs to be substantial. Consistency and generality are sufficient to evidence a general recognition for a legal obligation. it does not speak of sources. an instant custom. Provided that the principles of consistency and generality are proven. the Court held that Colombia was not able to prove the constant and uniform practice of unilateral right of refuge of a State and an obligation upon the territorial state. so long as consistency and generality are proven. What is the implication of this enumeration? It is not exclusive. there is no necessity of passage of a long period of time. the passage of time can also be evidence of generality and uniformity. There are. as subsidiary means for the determination of the rules of law. What is wrong with this definition of opinio juris?8 Lecture. according to the Asylum Case. as opposed to motives of courtesy. November 25. may arise.6 I. however. In any event. that what the Statute provides is a directive to the court in resolving conflicts. or a practice present and binding only to a particular region. It means that a State abides by a practice because of a sense of legal obligation. o Universality is not required. or morality. o Example: exemption of fishing vessels from being captured as prize of war (Paquete Havana case) o Is there such a thing as instant custom? YES. however. In this case. 2010 7 Article 2(1)a.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 3 of 25 CHAPTER 2 THE SOURCES OF INTERNATIONAL LAW SOURCES OF INTERNATIONAL LAW What are the sources of international law? According to Article 38(1) of the Statute of the International Court of Justice. According to Brierly. establishing rules expressly recognized by contesting states (2) International custom. it consists of unwritten rules evinced from the generality and uniformity of the practice of States and is adhered to by such states out of a sense of legal obligation or opinio juris. whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. However. it is the recognition by States that a certain practice is obligatory and that it requires a conception that the practice is required by or consistent with prevailing international law. November 25.7 II. may emerge. as evidence of general practice accepted as law (3) Generally accepted principles of law recognized by civilized nations (4) Judicial decisions and works of the most highly qualified publicists of various nations. CUSTOM What is custom? According to the North Sea Continental Shelf Cases. two elements of custom: 1. fairness. As already discussed above. there are instances when a regional custom. the sources of international law are: (1) International conventions. INTERNATIONAL CONVENTIONS What is a treaty? A treaty is defined an international agreement concluded between states in written form and governed by international law. therefore there can be other sources of international law. (c) Generality o Practice need not be exactly the same throughout States. this is the most widely accepted statement with regard to the sources of international law. o Consistency was discussed in the Asylum Case.

from the very beginning. Malcolm Shaw TREATY VS. an armed attack situation is the ONLY valid justification for a State to violate the provision against the use of force under Article 2(4) of the UN Charter. Examples are: principles of estoppel and equity IV. CUSTOM What is the relationship between treaty and custom? Treaties can generally. Is the New State bound to comply with the existing customs?9 NO. Exception: when the state. it will not be bound by such custom. classifying the attack on the WTC as an armed attack under Article 51 of the UN Charter. JUDICIAL DECISIONS AND WORKS OF THE MOST HIGHLY QUALIFIED PUBLICISTS Judicial Decisions under municipal law and works of MHQP are regarded as subsidiary sources of international law. in a region of States. This is so because. Does a treaty override custom? It depends. it cannot be in the strict sense considered a ‘ legal obligation’ if it arises from mere belief. 11 bombing which gave rise to an instant custom. An example would be the Sept. MHQPs are generally authorities such as writers and publicists. this may be strong evidence of proving custom). being the latter intention. There is really no specific qualification. Situation 2: If a treaty was entered into before a custom develops. NOT because it was a persistent objector. Lecture. has expressly objected to the applicability of the said customary behavior to its own State. Is there such a thing as instant custom? YES. the ICJ has no jurisdiction at all to determine the rights and obligations of States. therefore. Without this consent. Second. III. and therefore would warrant the US’s valid exercise of self defense. In that sense. GENERALLY ACCEPTED PRINCIPLES OF LAW Generally accepted principles of law are principles of municipal law common to the legal systems of the world. but rather the concurrence the elements of generality and uniformity. This. the court attempted to reconcile treaties with custom. there has already been a long-standing custom and there emerges a new State. Article 59 of the Statute expressly provides so. This is so because first. International tribunals must have recourse to rules typically found in domestic courts and domestic legal systems in order to address procedural and other issues. a substantial number of States have concurred in the opinion that such constituted an armed attack. Examples of MHQPs: Brownlie (wrote on everything about basic international law). serve as evidence of opinio juris. Situation 1: If a treaty was entered into after a custom has been established. and submitting themselves to the jurisdiction of the Court. would run counter to the very nature of a treaty. in that opinio juris is a belief that a behavior is a legal obligation. the ICJ only derives its jurisdiction from the consent of the Stateparties coming before it. 10 11 Article 59. the solution to this situation would be to reconcile custom with treaty provisions. This is called the principle of persistent objector. UN reporters and special rappertours. the rules are not clear. meaning that the decisions have no binding effect except as regards State-parties that gave their consent. The moment that the September 11 bombing happened. November 25. It is not bound by virtue of the fact that it did not consent to the custom and therefore such custom is not binding on the New State in any respect. What this means is that they are subject to the Statute provision on consent11.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes The definition seems to be circular. States are bound by custom. 2010 will be discussed in greater detail later. (self-defense will be discussed in greater detail in later chapters) Page 4 of 25 parties’ ratification of that treaty is an expression of their consent to be bound by such. because obviously it was a nonexistent State at the time the custom began. and the principle of pacta sunt servanda should be observed. the State9 THERE IS NO STARE DECISIS IN INTERNATIONAL LAW. but not always. In the Continental Shelf case. it can be said that the treaty will govern as regards the parties who entered into it. Is custom binding on all States? Generally. In practice. but the acceptance of the writings of these MHQPs depend on the judges themselves and the court’s tradition. however. ICJ Statute Kat Aguila Kach H irang-O lave . but for the purposes of instant custom. should prevail. It would seem that custom. What about when.10 Note that what matters in determining the existence of custom is not so much the lapse of time (while in most instances.

UN Resolutions are NOT binding. Page 5 of 25 “Soft Law” These are international agreements not concluded as treaties but are actually practiced with consistency and uniformity.13 Since past ICJ cases have already been decided. Netherlands having built a lock. Example: UN SC Resolution 167415 12 13 Lecture. when the needs of justice so require. achieving the status of custom. 2010 Atty. laws have already been interpreted and facts already appreciated. but are in the process of. these decisions are highly persuasive but not binding upon the Courts. under Article 38 of the Statute. and Acts of Aggression) of the Charter.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Therefore. December 2. they serve as highly persuasive evidence of the States’ consent to the subject of the Resolution and may therefore be evidence of customary law. Note that equity falls under Generally Accepted Principles of Law which. When made under Article VII of the UN Charter (Action with Respect to Threats to the Peace. resolutions are binding. commiting the Council to protect civilians in cases of armed conflicts. Example: duty to protect the environment16 EQUITY AS A SOURCE OF INTERNATIONAL LAW The court is not precluded from applying equity as part of international law. 15 Adopted April 28. Breaches of the Peace. then why would we still need to look at previous decisions of the ICJ? Why do we still study them if they have no effect on future decisions anyway?12 Because it’s convenient. what the Court held in this case. Then what purpose do they serve in the international community? At most. Belgium14. the effect of this would be that State-parties cannot oblige the court to decide on their case in the same manner that the Court decided in previous similar cases. Exception: There are certain UN Resolutions that are binding. and Belgium having built canals obstructing water flow of the Meuse River. is a valid source of international law. Basically. If there is no stare decisis. They have not. Gatdula 14 The Meuse River Case. but can only serve as evidence of customary international law • As a general rule. there is nothing precluding the ICJ from looking into these past decisions for purposes of assisting them in resolving cases before the court. The principle of equity was applied in the case of Netherlands v. Resolutions UN Resolutions have NO binding effect. depending on the subject of the Resolution. evincing the doctrine of unclean hands. was that Netherlands cannot claim nor can Belgium counter-claim when both of them come to court with unclean hands. OTHER SUPPLEMENTARY EVIDENCE (OTHER SOURCES OF INTERNATIONAL LAW) U.N. At most. 16 1992 Rio Declaration Kat Aguila Kach H irang-O lave . 2006.

must at least be in writing. VCLT Art. and embodied in a single instrument or a series of related instruments. the Security Council.e. (4) Lawful Subject Matter  When the subject matter of a treaty is illegal. (2) Authorized representatives  It is for municipal law to determine which organ of the state shall be empowered to enter into treaties in its behalf. 1(b) VCLT 19 Cruz 20 July 17. and second. the commitment is very specific. charters of international organizations. usually but not necessarily in writing. 19 Is there such a thing as an oral treaty? YES. Bahrain. means of settling disputes. Treaties that create collaborative mechanisms 3. for the purpose of regulating their mutual relations under the law of nations. Non-compliance with this requisite will prevent the enforcement of the treaty even if already signed by the negotiators.21 (3) Freedom to consent  Fraud or mistake will invalidate a treaty as it would an ordinary contract.18 It is a formal agreement.  All states have full treaty-making capacity unless limited by reason of their status and previous self-imposed inhibitions. o Examples: JPEPA.e. it is rendered null and void. there is clear intent to be bound by the declaration. in whatever designation it may be given. to come under the definition of the VCLT. KINDS OF TREATIES 1. Philippine-Indonesia Extradition Treaty Page 6 of 25 CHAPTER 3 THE LAW OF TREATIES The primary law governing treaties is the 1969 Vienna Convention on the Law of Treaties. treaties serve as sources of international law. agreed to by the States. Bilateral treaties o Only binding between the State-parties. (5) Compliance with the Constitutional Processes  Ratification processes are governed by municipal law. What is the effect of unilateral declarations? The Court held in the Nuclear Test Cases that unilateral declarations can have the effect of creating legal obligations when two elements are present: first. DEFINED. Multilateral treaties o Multilateral treaties are generally open to all States o Examples: o Geneva Convention.  The United Nations and its organs (i.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes 2.  Example: The Treaty of Tordesillas of 1949 is invalid for illegality of the subject matter insofar as it sought to divide between Spain and Portugal parts of theAtlantic. There is really no required form. Rome Statute20 17 18 ESSENTIAL REQUISITES TO A VALID TREATY (1) Treaty-making capacity  A treaty to be valid must be entered into by parties with treaty making capacity. and Indian Oceans which are opean seas. Pacific.  General Rule: A state is not bound by a treaty made in its behalf by an organ or authority not competent under the law to conclude the treaty. governed by international law. (i. 2 par. The Constitution authorizes the President to make treaties subject to a concurrence of twothirds of all the members of the Senate).17 TREATY.   It is a written agreement between States. the Economic and Social Council) and international bodies like the World Health Organization may enter into treaties. and governed by international law. Exception: A state may be responsible for an injury resulting to another state for reasonable reliace by the latter upon the misrepresentation of the former. FUNCTION OF TREATIES Generally. In Qatar v. the ICJ held that a mere exchange of letters constitutes a valid treaty between the two States. which is entered into by the states or entities possessing the treaty-making capacity. among other things. THE MAKING OF TREATIES Steps in the making of treaties: Negotiation  Authentication of Text  Consent to be bound  Reservations (if any)  Entry into Force 21 Hereinafter. but the treaty. however such treaties would not come within the contemplation of the VCLT and therefore would not be governed by the VCLT. 1988 Harvard Research on International Law cited by Isagani Cruz Kat Aguila Kach H irang-O lave .

The ratification. or when it is the intention of the parties that the signature would have that effect. or when the parties agree that the signature would have that effect. acceptance. The latter refers merely to the expression or the interpretation of the State of the treaty. 2. ratifying. • Two elements must be present for someone to be considered with full powers to represent a state: (1) he produces appropriate full powers (2) The practice of States so provide for evidence that there is an intention to consider that person a representative of the State. If not followed. the States agreed to give it that effect. VCLT 24 Article 13. VCLT 25 26 Article 14. VCLT Art. (3) When a treaty is a constituent instrument of an international organization and unless it otherwise provides. Accession • This applies to States that did not participate in the initial negotiations. accepting. 1. EXCEPT WHEN: (1) Reservation is prohibited by the treaty (2) The treaty provides for only specified reservations (3) When the reservation would be contrary to the object and purpose of the treaty.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes • Page 7 of 25 Step 1: Negotiation • Negotiations are usually done through foreign ministries. ratification. naturally. approval or acceptance will have the effect of binding a state to a treaty when the treaty so provides. approval or accession. a reservation requires the acceptance of the competent organ of that organization. (4) In cases not falling within the preceding paragraphs and unless the treaty otherwise provides: Articles 9 and 10. VCLT Kat Aguila Kach H irang-O lave . Ratification. • Who are empowered to enter into treaties as representatives of their States? (1) Heads of States (2) Ministers of Foreign Affairs (3) heads of diplomatic missions (4) accredited representatives of States to international conferences or to an international organization. or when all the subsequent parties have agreed that consent is expressed by accession. approval or acceptance 22 23 4.24 3. VCLT Article 12. when the negotiating parties have agreed that such consent may be expressed by accession. exchange of instruments. Step 4: Reservations A reservation is a unilateral statement. 27 Article 20 (1) A reservation expressly authorized by a treaty does not need subsequent acceptance by the other State-parties. or when it is otherwise established that the States agreed that the exchange would produce that effect. • Negotiators have the power to negotiate. States may make reservations. the representative of the State signed it subject to ratification. Step 2: Authentication • This is evidenced by the signing of the document. • The manner by which such authentication is primarily guided by the procedures set forth in the treaty itself. Article 19 Generally.26 A reservation is different from an interpretative declaration.25 • Ratification is followed by either an exchange of ratification or deposit of ratification.22 Step 3: Consent to be bound There are several means of expressing consent: signing. a treaty entered into by one who is not authorized to do so is invalid and without effect. however phrased or named. Signing • The act of signing will have the effect of binding a state to the treaty when the treaty so provides. or other means if so agreed. made by a State when signing. then the signature ad referendum or initialing of representatives will serve as sufficient authentication. Exchange of Instruments • The exchange of instruments will have the effect of binding a state to the treaty when the instruments themselves provide for such effect. • Accession binds a state when the treaty so provides. whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State. or the States so intended. approving or acceding to a treaty. it does not in any way constitute derogation from the treaty. (2) A reservation requires the acceptance of all the parties when it appears that the application of the treaty is an essential condition of the consent of each State-party to be bound by the treaty. 19.23 2. VCLT 27 Art.

unless a contrary intention is definitely expressed by the objecting State. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. whichever is later. modifies for the reserving state in its relations with that other party the provisions of the treaty b. or when the negotiating parties so agree. The signing shall not affect the rights and obligations of the Contracting Parties under the Mutual Defense Treaty28 and its related instruments. This is so because there is a conflict between Article I of the Philippine Constitution and the provision of the Conveneion on ‘archipelagic waters’. and security. on the August 5. The reservations are as follows: 1. modifies those provisions to the same extent for that other party in relation to the reserving State. 1951 Art. c. When there is conflict between Municipal Law and International Law (further discussed in Chapter 4) 28 29 entered into between the Philippines and the U. it removed straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation. more importantly. A reservation established with regard to another party: a. 2. If there is no such agreement. 1984. A reservation is effective as soon as at least one other contracting State has accepted the resrervation.30 APPLICATION OF TREATIES • • Treaties must be complied with in good faith. b. • Withdrawal of an objection may be made at any time. VCLT 30 Art. then the treaty enters into force on the date of consent.S. upon its ratification of the Convention of the Law of the Sea. particularly when necessary to protect its sovereignty. • (5) A reservation is deemed accepted by a State if it did not raise any objection to the reservation by the end of the period of 12 months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty. 24. Legal effects of reservation: 1. The concept of archipelagic waters is deemed similar to the concept of internal waters under the Philippine Constitution. VCLT Kat Aguila Kach H irang-O lave . Page 8 of 25 THE PHILIPPINES AND THE 1982 CONVENTION OF THE LAW OF THE SEA • The Philippines. on August 30. pursuant to the principle of pacta sunt servanda. 4. When a State objecting to a reservation does not oppose the treaty’s entry into force between itself and the reserving State. The signing shall not impair the sovereign rights of the Philippines as a successor of the United States. interest. What this means is that it remains with authority to enact legislation over sea lanes. or other treaties to which the Philippines is a party.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes a. made a reservation. 5. the provisions to which the reservation relates do not apply as between two States to the extent of the reservation. The signing of said Convention shall not in any manner impair or prejudice the sovereign rights of the Philippines. 2. An objection by another contracting State does not preclude entry into force of that treaty as between the reserving State and the objecting State. acceptance by another contracting State of the reserving State’s reservation makes the reservaing State a party to that treaty in relation to the accepting State. Withdrawal of reservations and of objections • Withdrawal of a reservation may be made at any time. 25. • As to effectivity: o The withdrawal of a reservation becomes operative in relation to another contracting State only when it receives notice thereof o The withdrawal of an objection becomes operative only when notice thereof has been received by the State which formulated the objection. and the consent of the accepting State is not required. and formally confirmed by the reserving State • The acceptance of the reservation DOES NOT itself require confirmation • Withdrawal of a reservation or objection must be in writing Step 5: Entry into Force • A treaty enters into force on the date the parties agreed to.29 • A treaty may be provisionally applied when the treaty itself provides. The provisions on archipelagic passage do not nullify or impair the Philippines’ sovereignty as an archipelagic state. Form and Procedure of Reservation: • Reservations must be in writing. 3. 3.

When a treaty is entered into in two or more languages.e. VCLT Art. • If the State is a party to one treaty but is no a party to the amended treaty. corruption of the State’s representative 4. Air France v. INVALIDITY OF TREATIES Grounds for invalidating a treaty are: 1. • Parties to the pre-amendment treaty are entitled to be parties to the amended treaty. Saks Facts: Saks was a passenger of Air France who later on suffered permanent deafness in her left ear after landing in LA. 4 (b) as between a State party to both treaties and a State party to only one of the treaties. negotiation and conclusion of any agreement for the amendment of the treaty. • The treaty may be merely a formal expression of customary international law which is enforceable in all civilized states. She filed a case in a California State Court against Air France. Held: Air France is not liable. 29. 46. the provision of the Montreal Agreement imposing absolute liability for injuries cannot deemed a waiver of the ‘accident’ requirement under the Warsaw Convention. fraud 3. Kat Aguila Kach H irang-O lave . INTERPRETATION OF TREATIES • Treaties are to be interpreted taking into consideration three elements: the ordinary meaning of the words. ruled in favor of Saks. • A treaty may expressly extend benefit to non-signatory states (i.31 Unless otherwise provided. the HayPauncefote Treaty of 1901). Modification – formal amendment involving some of the parties Rules on modifying treaties: (Art. • These States shall take part in the decision-making. VCLT Art. 40) • Proposal to amend must be made known to all the contracting States. except when the parties agree to making a particular text prevail. Rules on amending treaties: (Art. the treaty is a violation of jus cogens Generally. alleging that her deafness was due to Air France’s negligence in maintaining their pressurization system. The contested term here is “accident” within the meaning of Article 17 of the Warsaw Convention. error of fact 2. 32 Page 9 of 25 passenger. and the special meaning given to it by parties. the treaty applies to the entire territory of the State-party. EXCEPT when the State expressly agrees that it remains effective. a State may invoke the aforesaid grounds to invalidate a treaty.33 When there are ambiguities. the purpose of the treaty. then Article 30 par. BINDING EFFECT OF TREATIES General Rule: Treaties are binding only on the contracting parties Exception: Third states may be validly held to the observance of or benefit from the provisions of a treaty. duress 5. 41) • A treaty can only be modified when: o Modification is provided for by the treaty 34 • • • Art. 4(b) governs.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes A State may NOT its domestic laws as a justification for violation of its obligations under international law. 30 par. then the meaning that will best reconcile both shall be adopted.34 • Any State which becomes party to a treaty after entry into force of the amending agreement shall: o be considered a party to the amended treaty o be considered a party to the unamended treaty in relation to any party not bound by the amended treaty. the general rule is that the treaties are equally authoritative in all languages. or when the state acquiesces. The terms are presumed to be of the same meaning. the treaty to which both States are parties governs their mutual rights and obligations. 31. Liability under Article 17 arises only when the passenger’s injury is caused by an unexpected or unusual event or happening that is external to the 31 32 AMENDMENT AND MODIFICATION OF TREATIES Amendment – formal revision done with the participation of all the parties to the treaty. but if a difference arises. and not when the injury is a result of the passenger’s own internal reaction to the normal expected operation of an aircraft. recourse may be had to supplementary sources. District Court ruled in favor of Air France. VCLT 33 Art. CA reversed. Moreover.

It refused to do so. TERMINATION OF TREATIES Treaties are terminated by: • Lapse of definite period provided for by the treaty • Purpose for which it was established has already been achieved • Material Breach o In order to constitute material breach. but the relevant part of rebus sic stantibus is discussed in the ratio) Held: The Court ruled that it had jurisdiction. Iceland previously entered into an agreement (through an Exchange of Notes) with UK NOT to extend its fisheries jurisdiction. Applying this same view to the Mandate. the provisions of the VCLT on breach of treaty provisions can be considered as evidence of customary international law.36 • Rebus Sic Stantibus o Rebus sic stantibus is the principle of fundamental change in circumstances allowing States to suspend or terminate the application of a treaty o Basically. the change must have been fundamental. VCLT 37 I don’t have a legal basis for this.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes o o o Modification is not prohibited by the treaty Modification does not affect the rights and obligations of other States Modification is not incompatible with the object and purpose of the treaty. by virtue of Resolution 276 (1970) to withdraw its administration over Namibia. 38 Namibia Case (Namibia v. What is important to note here is that the Mandate by the Resolution is considered by the court to have the same binding effect as an international agreement. I just learned and mapped this out from our previous discussions on treaty law. 61. Therefore. thereby violating its obligation to UK. 35 • Impossibility of performance o In order to constitute impossibility of performance. In order for a State to validly invoke rebus sic stantibus. 36 35 38 Par. but it nevertheless did. Page 10 of 25 Issue: W/N the Court had jurisdiction (this is the primary issue. it can be said that the general rule is pacta sunt servanda and rebus sic statibus is one exception. it must at least be an act in repudiation of a treaty. or a violation of a treaty provision essential to the accomplishment of the object or purpose of the treaty. Having committed these two outright breaches of the Mandate. The change should have resulted in a radical transformation of the extent of the obligations still to be performed. an outright repudiation of the Mandate and a violation of a provision essential to the Mandate’s purpose are means by which we can determine whether a State has violated its obligations under international law. Article 62 constituted customary international law. Held: The Court held that South Africa was under an obligation to withdraw from Namibia and that other States have an obligation not to recognize South Africa’s administration in Namibia. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance of something essentially different from that originally undertaken. si Namibia sought advisory opinion from the Court requesting that the Court determine what the legal consequences are of South Africa’s continued stay. the General Assembly’s resolution is the exercise of its right to terminate the relationship in view of the outright violation of its international obligations.37 Fisheries Jurisdiction Case (United Kingdom v. Art. 43 Kat Aguila Kach H irang-O lave . the impossibility must result from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. VCLT Art. Iceland) Facts: UK and Iceland bring this case before the Court in order to settle their dispute regarding the extension of Iceland’s exclusive fisheries jurisdiction from 12 nautical miles to 50 nautical miles. South Africa) Facts: South Africa is being mandated by the Security Council. 60.

• If a State objects. or obligations and rights established relating to the regime of a boundary. and other peaceful means.) are not of such nature so as to warrant a termination of the treaty. at most. The law does not specify who has the authority to terminate. those empowered to enter into them can be deemed the same ones empowered to terminate them. AUTHORITY TO TERMINATE Who can terminate treaties? The Convention does not provide.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Danube Dam Case (Hungary v. however. VCLT Kat Aguila Kach H irang-O lave . which shall not be less than three months after the receipt of the notification. mediation. or rights established by a treaty for the benefit of any territory. or restrictions thereof. 33 of the UN Charter is necessary. to which Czechoslovakia responded by carrying out unilateral measures. the power to enter into treaties is shared between the President and the Senate. (2) impossibility of performance. • The provisions on other territorial regimes do NOT apply to treaty obligations of the predecessor State providing for establishment of foreign military bases. 33 requires is that States settle their dispute through negotiation. Hungary invokes the grounds of: (1) state of necessity. This is called the clean slate rule. The treaty does not contain any provision regarding its termination. 12. The instruments containing the declaration of termination of the treaties should be in writing. In the Philippines. Hungary suspended the construction due to environmental concerns. etc. it could be a justification for failure to implement treaty provisions. arbitration. The investment was no longer possible because Hungary itself did not carry out the works. On fundamental change of circumstances.40 TERMINATION OF TREATIES Procedure: • A party invoking any of the grounds for termination must notify all the parties • If after the expiry of the period. On the impossibility of performance. the Court ruled that this ground is not a valid ground for the termination of a treaty. the Court ruled that Hungary cannot invoke this ground as if Slovakia’s breach is only the result of Hungary’s corollary breach of its obligations. Other territorial regimes – succession does not affect use of any territory. resort to Art. Exceptions to the clean slate rule: 1. Held: In order to justify its unilateral termination of the said treaty. and (3) fundamental change of circumstances. but as a corollary. 67. and must be communicated to other parties. then the termination may be carried out in accordance with Art.  Page 11 of 25 • Any one of the parties may submit it to the ICJ for a decision unless the parties agree to submit to arbitration  Any one of the parties may set in motion the procedure laid down in the Convention by submitting a request to the SecretaryGeneral of the United Nations. SUCCESSION TO TREATIES A new State succeeding another State previously a party to a treaty is not obliged to maintain in force that treaty or to become a party thereto. All of which have been deemed unmeritorious by the Court. 40 Art. progress of environmental knowledge. Slovakia) Facts: Slovakia succeeds Czechoslovakia in the 1977 Treaty entered into between Czechoslovakia and Hungary regarding the building of dams on the Danube River. no State objects. On the state of necessity. but NOT termination thereof. 2. Boundary Regimes – succession does not affect boundaries already set by a treaty. 39 o If no solution has been reached after 12 months following the date of the objection: 39 What Art. the Court held that the changed circumstances invoked by Hungary (changes political in nature.

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 12 of 25 CHAPTER 4 MUNICIPAL LAW AND INTERNATIONAL LAW DUALISM AND MONISM In international law.. Cited in Bernas. 8th ed. under which there is no common field between International Law and Municipal Law.46 Neither may it claim that its consent to be bound by a treaty has been expressed in violation of a provision of its 43 44 41 42 Oppenheim's International Law. and because states owe their legal relationship to one another to the rules of international law. Dualist Theory Under this theory. Why? Positivism stresses the overwhelming importance of the state and tends to regard international law as founded upon the consent of states. There are two theories that attempt to address this conflict: the dualist theory and the monist theory. 1. and therefore is the weaker law Under this theory. The differ in several ways:41 Municipal Law Arises from custom grown up within the boundaries of the State concerned and statutes enacted by lawmaking authority. 45 Oppenheim's International Law. and advocates that international law is the best way of achieving this well-being. The ethical position on “human rights” (supported by Lauterpacht) The 'naturalist' strand sees the primary function of all law as concerned with the well-being of individuals. 2003. Basically. but between states. As to the relations they regulate 3. 1958 46 Art. and they exist within different juridical orders. Under this approach. 8th ed. 1958 Dixon and Mccirquidale. 45 1. International Law. Cases and Materials in International Law Shaw. the dualist theory holds international law and municipal law to be two distinct and separate laws. It considers municipal law and domestic law as distinct laws. conflict between municipal law and international law often arise. It is an approach characterized by deep suspicion of an international system based upon the sovereignty and absolute independence of states. one not being superior over the other. Law is regarded as constituting an order which lays down patterns of behavior that ought to be followed. international law and municipal law are two distinct systems of law. 1. As to source 2. The formalistic logical approach (supported by Kelsen) This approach finds its basis on Kant’s philosophy. municipal law and international law are essentially the same. Monist Theory MUNICIPAL LAW IN INTERNATIONAL LAW The general rule is that a State may not invoke provisions of its own laws as a justification for the violation of its obligations under international law. VCLT Kat Aguila Kach H irang-O lave . a logical unity is forged.44 2. such as the one positing equality. 27. Vol. State-person relations and person-person (interpersonal) relations The law of the sovereign is over individuals International Law Custom grown up among States and law-making treaties entered into by them State – State relations The law is not over. 5th ed. They are both the legal element contained within the domestic and international systems respectively. Vol. The monist theory considers international law and municipal law to constitute only one system of law. coupled with provision for sanctions which are employed once an illegal act or course of conduct has occurred.. municipal law prevails. much like the French Rule and the English Rule are different systems of law. Emerging third approach: the “no common field” approach (supported by Fitzmaurice and Rosseau) There arises a third approach. and by faith in the capacity of the rules of international law to imbue the international order with a sense of moral purpose and justice founded upon respect for human rights and the welfare of individual. Since the same definition appertains within both the internal sphere and the international sphere. Dualists are positivists who put strong emphasis on sovereignty. it follows that inter-national law is superior to or more basic than municipal law. As to substance According to most dualists42 . international law is superior to municipal law. since states cannot be equal before the law without a rule to that effect. There are two primary divisions with regard to the monist theory43: 1.

As regards treaties. VCLT Art. In this case. it has to be “transformed” into municipal law by the use of the appropriate constitutional machinery. By incorporating customary law and treaties that have become customary law into “the law of the land”. but pursuant to Spain’s refusal to authorize foreign currency transfers. 47 48 Art.” Barcelona Traction Case Facts: Belgium wants to seek damages from Spain for the losses suffered by its citizens who are shareholders in the Barcelona Traction. it may be argued that precisely because treaties require an act of Congress before they become effective.50 This is because the validity of a treaty entered into requires the concurrence of the Senate. this in itself constitutes our adherence to the doctrine of transformation. adheres to both. INTERNATIONAL LAW IN MUNICIPAL LAW Dualism also applies in this regime. Held: The Court ruled that even if this case involved municipal law rather than international law. 47 The exception to the general rule is when there is a manifest violation of the fundamental laws of the State concerned. To reiterate: In the Philippines. However. Barcelona Traction was incorporated in Canada. 1987 Philippine Constitution 52 Bernas Kat Aguila Kach H irang-O lave . 21. In order for international law to become part of domestic law. and it is held to be a part of the law of the land The doctrine of transformation The doctrine of transformation. international law had to recognize the corporate entity and its shareholders in light of the existing municipal law. Brazilian Loans Case (France v/ Brazil) Facts: This is a dispute between the Brazilian Federal Government and the French holders of various Brazilian Federal loans. 46(2). whereas the doctrine of transformation applies to treaties. Sec.51 With regard to customary law and treaties that have become customary law. its shareholders adversely affected. The Court was required to take into account the decisions of the municipal courts of a state and apply it. What is the legal implication? It means that our courts can apply international law to settle disputes. the court has jurisdiction over the case. 5th ed. Director of Prisons (1951) 49 50 Exchange of Greek and Turkish Population Case “A state that enters into a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. in essence. the doctrine of incorporation applies only to customary law and treaties that have become customary law. Light and Power Company. the Philippines adopts the incorporation theory. whether through an act of Congress or through an Act of Parliament. the doctrine of transformation applies. thereby evincing our adherence to the incorporation theory. It depends on the element of international law entering the domestic sphere. 51 Art. How is this done? There are two ways of making international law a part of domestic law: incorporation and transformation. VCLT Shaw. Held: The Court ruled in favor of Spain. International Law. Which doctrine does the Philippines adhere to? The Philippines. VII. in his Commentary said: the law of nations. Spain contends that Belgium has no locus standi. Belgium had no locus standi. No legal basis for this. with regard to the question whether the service of these loans should be effected based on gold franc or paper franc. international law attains the same value and effect as our municipal laws. and such would have the same binding effect as would the Civil Code or the RPC. provides that before international law becomes effective in the domestic sphere.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes internal law regarding competence to conclude treaties as invalidating its consent. This is because the Constitution explicitly provides that the Philippines “adopts generally accepted principles of international law as part of the law of the land”.52 Mejoff v. 2003.48 Page 13 of 25 The doctrine of incorporation The doctrine of incorporation simply provides that international law is automatically part of the law of the land without further need of legislation. The best known exponent of this doctrine is Blackstone49 who. wherever any question arises which is properly the object of its jurisdiction. 46(1). is here adopted in its full extent by the common law. just noted from one of our previous discussions. on the other hand. the Company went bankrupt and accordingly. it has to be made part of the municipal law. It is manifest where it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith.

Because of this. Our courts should respect Mejoff’s right to liberty. 68 valid? Whether the participation of Hussey and Port is valid. birth. (2) The Military Commission is a special tribunal governed by special law and not the Rules of Court. as the U. in issuing EO 68. questioning the legality of E. part of our Constitution. so it follows that the said Commission has jurisdiction. Two years later and still. even if they are not qualified to practice law in the Philippines. Ratio: The protection against deprivation of liberty without due process of law is not limited only to Filipino citizens. political or other opinion. it’s the U. Notwithstanding that the Philippines is not a signatory to the Hague Convention or the Geneva Conventions (not until 1947). these principles should be respected in our domestic courts. the Court decided that the detention of Mejoff pending proper deportation arrangements was valid. He comes before the court. Kat Aguila Kach H irang-O lave . It was the President’s duty to try and punish individuals who have attempted to wage war. 2). detention or exile" (Art. requires that: All human beings are born free and equal in degree and rights" (Art. 1).O. 8). language. these treaties. the Philippines adopts the generally accepted principle of due process. Ratio: (1) Held: (1) (2) Page 14 of 25 covering 1943-1944. If anything. was merely acting pursuant to its role as Commander in Chief and clearly within his constitutional powers. Mejoff is released. Therefore. sex. that "No one shall be subjected to arbitrary arrest. Issues: (1) (2) Is E.S. Issue: Should the Court issue a writ of habeas corpus and order the release of Mejoff notwithstanding his status? Held: YES. 9). Agustin v.O. is an aggrieved party. are by virtue of Article II. no ship nor country is willing to take him. Edu Facts: Kuroda v. It is a fundamental right guaranteed to every individual. in addition international jurisprudence still evince generally accepted principles of international law. by the Constitutional provision on the Philippines’ adoption of generally accepted principles of law. as he posed a threat to security. the President. E. 68 (establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war criminals) and the participation of American attorneys Melville S. without distinction of any kind. Hence. such does not diminish Philippine sovereignty. he illegally entered the Philippines sometime in 1944 without proper admission and inspection. that "Every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. property. and NO. Mejoff is a Russian secret operative working for the Japanese forces. such as race. their participation in the proceedings is valid. YES. the Court took into account that Mejoff was already in detention for two years and ordered that he be released. colour. On what ground? First. that is relinquishing its sovereignty in allowing the Philippines to prosecute the case. nationality or social origin. Since the law creating it has been upheld as valid. Such generally accepted principles. the Court ordered his deportation. 3. Second. Jalandoni Facts: Shigenori Kuroda is a former Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in The Philippines during a period President Marcos issued on December 2. and should therefore adhere to the “Universal Declaration on Human Rights”. Hussey and Robert Port in the prosecution proceedings. and whether it deprives the Philippines of sovereignty YES. The Letter of Instruction 229. that "Everyone is entitled to all the rights and freedom set forth in this Declaration. and pending the arrival of the ship that will take him home. but subjected to reasonable surveillance. Having the American lawyers in the proceedings does not in any way diminish the Philippines’ sovereignty. 1974 a Letter of Instruction in accordance to the 1968 – Vienna Convention on Road Signs and Signals and the UN which was ratified by the Philippine Government under PD 207. or other status" (Art. 68 is valid and constitutional. In this case (1951). in the interest of safety in public highways and expressways direct owners of motorized vehicles to acquire an early warning device and present such upon registration of your vehicle. Pursuant to this LOI. religion.O. A ship arrived and requested for him but the masters of prisons refused claiming that they had no authority to do so.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Facts: In the 1949 case. the Philippines is a member of the UN. He is now being tried before the Military Commission for ‘having failed to discharge his duties and prevent the brutal atrocities committed against civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war’. he was to be detained in the Bilibid Prison. Sec.S. The UDHR among other things. the writ should be issued. regardless of nationality.

It is also in keeping with the principle of pacta sunt servanda. the court applies domestic law. they are moreover mandated to carry out their obligations in good faith. 13. and measurements. it is a settled rule that a State may not invoke provisions of its own laws as justification for its failure to comply with its obligations under international law. Note that just because a treaty is unconstitutional does not mean that it is no longer valid as international law. Conflict between International Law and Domestic Law: International Rule Before an international tribunal. Other forms of warning may not be universally understood.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Hon.53 (Refer to the rule laid down in page 15. Edu issued Memorandum Circular 32 requiring all vehicle owners to procure the EWD’s. complying with the prescribed size. However. and that the EWD’s were too expensive. What happens then? The treaty would be invalid and unenforceable under domestic law. Issue: is the LOI unconstitutional? Is it a valid delegation of police power? Held: YES. What happens when there is a conflict of obligations? It depends on whether the case is brought before a domestic court or an international tribunal. It is only invalid in the context of the domestic sphere. States are not only obliged to not ‘make excuses’. Declaration of Rights and Duties adopted by the International Law Commission in 1949. shape. Moreover. as the Philippines has already ratified the Vienna Convention on Road Signs and Signals. the Philippines complies with its obligations under the VC on Road Signs. referring to manifest violations of the Constitution as an exception to this rule) Conflict between International Law and Domestic Law: Municipal Rule Before a domestic court. Ratio: This is a valid exercise of police power. Page 15 of 25 53 Art. so to adopt a uniform means of warning. when it comes to treaties. usually. treaties entered into by the Philippines are somteimes incompatible with the Constitution. It seems that our laws cannot be in conflict with customary international law because our Constitution explicitly adopts CIL as part of the law of the land. Agustin argues that other forms of WD’s can be used. Kat Aguila Kach H irang-O lave . the end goal being to reduce accidents. LOI is constitutional.

Can an entity claim to be a state before it is recognized by other states? There are two views on this: (1) The Declaratory Theory 59 60 Bernas Cruz 56 Lauterpacht. (2) Claims to be free from external coercion. International Law. however. Social and Cultural Rights. also reaffirmed in the Declaration Granting Independence to Colonial Countries and Peoples (1960) and the Declaration on Principles of International Law concerning Friendly Reations and Cooperation among States (1970) Kat Aguila Kach H irang-O lave .  Subjects of international law are entities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane.60 • Levels of claims to self-determination: (1) Establishment of new states – the claim by a group within an established state to break away and form a new entity. (Cruz)  The state as a person of international law must possess the following qualifications:57 o Permanent population (OR PEOPLE) • A community of persons sufficient in number and capable of maintaining a permanent existence of the community and held together by a common bond of law.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 16 of 25 CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW: STATES SUBJECTS OF INTERNATIONAL LAW. or the claim to overthrow effective rulers and establish a new government RECOGNITION OF STATES Recognition means the act of acknowledging the capacity of an entity to exercise rights belonging to statehood. Montevideo Convention of 1993 on Rights and Duties of States 58 Restatement (Third) on the Foreign Relations Law of the United States Montevideo Convention of 1993 on Rights and Duties of States International Covenant on Civil an Political Rights and the International Covenant on Economic. • An entity may satisfy the territorial requirement for statehood even if its boundaries are disputed. • For purposes of international law. namely: ‐ Holy See (particularly from 1871 to 1929) ‐ Insurgents and belligerents ‐ International organisations ‐ Chartered companies and various territorial entities such as the League of Cities o o o STATES AS SUBJECTS OF INTERNATIONAL LAW  A state may be defined as a group of people living together in a defined territory under an independent government organized for political ends and capable of entering into international relations.58 • A state may be recognised as a legal person even though it is 54 55 involved in a dispute with its neighbours as to the precise demarcation of its frontiers. 57 Article 1. It has an international personality that it can directly assert rights and be held directly responsible under the law of nations. Government • An agency through which the will of the state is formulated. expressed and realized. 489.plicit in the affirmation that only states are subjects of international law' 56 o In practice however. o Defined territory • A fixed portion of the surface of the earth in which the people of the state reside.59 • Sovereignty. or some of its territory is claimed by another state. it is the national government that has legal personality and it is the national government that is internally responsible for the actions of other agencies and instrumentalities of the state. other entities have already been considered subjects of international law. Sovereignty • Independence from outside control • The capacity to enter into relations with other states. is dependent on recognition. the Philippines was able to sign the United Nations Charter notwithstanding that it was still not an independent state then. By virtue of that right. Notably. Self determination • This is a broader concept than sovereignty.55  The stricter definition would be Lauterpacht’s: 'the orthodox positivist doctrine has been ex. DEFINED. p.54  A subject of international law is an entity that has rights and responsibilities under that law. • All peoples have a right to self-determination. social and cultural development. they freely determine their political status and freely pursue their economic. so long as there is a consistent band of territory which is undeniably controlled by the government of the alleged state.

• Where state A is absorbed by State B. The Tinoco Arbitration Great Britain v. • When State A is absorbed by State B. (2) The recognized government acquires the right to sue in the courts of the recognizing state. Succession to state property • Where a part of State A’s territory becomes territory of State B.61 Does admission of a government to the United Nations mean recognition by all members? No. both being British corporations. but begins with a clean slate. In relation to the declaratory theory. local public debt. Succession to contracts • When part of State A becomes territory of State B. Consequences of Recognition of States and Governments: (1) Full diplomatic relations are established except where the government recognized is de facto. SUCCESSION OF STATES Various views are adopted in relation to succession of States. 4. though it never really recognized the Tinoco government. In 1922 the restored Costa Rican Government passed a law declaring all contacts entered into during the Tinoco government invalid. (4) All acts of the recognized state or government are validated retroactively.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Recognition is merely declaratory for the existence of the state. meaning that its being a state depends upon its possession of the required elements and not upon recognition.. rights and obligations of the predecessor state under contracts relating to the territory of the new state pass to the new state. rights and obligations of State A pass to State B. rights and obligations of the predecessor state with respect to that territory 2. the property of A located in that territory passes to B. State A’s international agreements with respect to that territory ceases and the force of the treaty 61 62 Cruz Bernas Kat Aguila Kach H irang-O lave . The non-recognition of other nations of a government claiming to be a national personality is usually appropriate evidence that it has not attained the independence entitling it under international law. He eventually retired and left the country. property of the State A located in the territory of the separate state become the separated state’s. But when recognition by such nations is determined by inquiry. The Tinoco Government had granted a concession to the Central Costa Rica Petroleum Company and was indebted to the Royal Bank of Canada. 3. its status cannot be derecognized. Others claim that the successor state assumes all the rights and obligations of the predecessor state. their nonrecognition loses something of evidential weight on the issue. a State may recognize another State as a state even if it does not have all the elements of a state found in the Montevideo Convention. the public debt.62 Rules on Succession of States 1. It merely emphasizes the point that the states are under no obligation to enter into bilateral relations. Page 17 of 25 preventing the recognizing state from passing upon their legality in its own courts. A’s property passes to B. • Where part of State A becomes a separate state. which those applying the rules are concerned. Succession to public debts • Where part of the territory of State A becomes territory of State B. For as long as a state continues to meet the qualifications of statehood. Others hold that succession has varying effects on states’ rights and obligations. Held: The Tinoco Government was an actual sovereign government and was in effective control of Costa Rica. Great Britain is claiming on behalf of these coporation. The recognition is only to the extent of the activities of the organization. Costa Rica (1923) Facts: In 1917. the Government of Costa Rica was overthrown by Frederico Tinoco. • Where part of State A becomes a separate state. When is recognition terminated? Recognition of a regime is terminated when another regime is recognized. it was a valid government regardless of who recognized it and who did not. He assumed power in June 1917. it is what makes a stae a state and confers legal personality on the entity. local public debt and the rights and obligations of State A under contracts relating to that territory are transferred to State B. wherever the property is located. (3) The recognizing government has a right to the possession of the properties of its predecessor in the territory of the recognizing state. that is. Succession to territory • The succeeding state assumes all the capacities. RECOGNITION OF GOVERNMENT Recognition of government is the act of acknowledging the capacity of an entity to exercise powers of government of a state. The recognition of states is decided mainly on the basis of political considerations. (2) Constitutive Theory Recognition constitutes a state. Some suggest that the new state succeeds to absolutely no rights or obligations of the predecessor state.

It may either be: (1) Simple states A simple state is that which is placed under a single and centralized government exercising power over both its internal and external affairs. placing authority on the individual entities. • Example: UN General assembly: 1 state = 1 vote. (c) Confederation – organization of states which retain their internal sovereignty and to some extent. (Because the new state accedes to no treaties unless those ratified by it) Uti possidentis rule: pre-existing boundary and territorial arrangements continue to be binding notwithstanding. resulting in the creation of a new state with full international personality to represent them in their external relations. Taiwan Taiwan seems to be a non-state territory. On the one hand. this is called the “moving treaty rule” or “moving boundaries rule”. Protectorates These are dependent states which have control over their internal affairs but whose external affairs are controlled by another state. each with its own separate government but bound under a central authority exercising to a greater or lesser degree control over their external relations. (2) Composite states A composite state consists of two or more states. C. CLASSIFICATION OF STATES A. mutual nonaggression. which is de jure part of China. Dependent States Dependent states fall into two general categories.) When a State is absorbed by another State. the protectorate and the suzerainty. the international agreements that govern the absorbed state will now be those applicable to the absorbing state. One view is that the protectorate always retains a greater measure of control over its external affairs than the suzerainty.63 SOME INCOMPLETE SUBJECTS 1. Federal State A union of previously autonomous entities. it means the right to exercise within its portion of the globe the functions of a state. 3. non-interference in state affairs. This is called the “clean slate theory”. Marianas. Examples: Carolinas. Page 18 of 25 • • • act as one entity. There can be various arrangements. Examples: (a) Real union – created when two or more states are merged under a unified authority so that they form a single international person through which they 63 Discussed in the Five Principles of Co-existence by India and China and the 1970 Declaration on Principles of International Law Friendly Relations and Cooperation Among States Kat Aguila Kach H irang-O lave . placing full authority in the central organ and on the other. Equality • Simply requires equality of legal rights irrespective of the size or power of the State. Example: Switzerland was neutralized in 1815 and has managed to maintain its status despite the many wars that has engulfed Europe since the Congress of Vienna. Neutralized States An independent state whether simple or composite may be neutralized through an agreement with other states by virtue of which the latter will guarantee the integrity and independence provided it refrains from taking any act that will involve it in war or other hostile activities except for defensive purposes. When there is a new state. 2. the treaty follows the territory. As a right. Marshall Islands 4. Independent States A state who is not subject from dictation from others with respect to the freedom to enter into external affairs is known as an independent state. Mandated and Trust Territories Those placed by the League of Nations under one or other victorious allies of the World War I. it does not succeed to the treaties of the predecessor state unless it accepts agreements or agree to it or acquiesced to it.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes transfers to State B. (Basically. (b) Federal union – combination of two or more sovereign states which upon merger cease to be states. B. their external sovereignty while delegating the collective body power to represent them as a whole for certain limited and specified purposes. Peaceful co-existence • Mutual respect for each other’s territory and sovereignty. FUNDAMENTAL RIGHTS OF STATES Independence • The capacity if a state to provide for its own well-being and development free from the domination of other states. (d) Personal union – comes into being when two or more independent states are brought together under the rule of the same monarch.

it has diplomatic relations with over 40 states. 6.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes 5. The Sovereign Order of Malta Italian Court of Cassation in 1935 recognized the international personality of Malta. The Holy See and Vatican City The Lateran Treaty signed by Italy. which recognized the Vatican City and the recognized and the Holy See’s sovereignty in the field of international relations. Page 19 of 25 Kat Aguila Kach H irang-O lave . Now.

241 (2003) Shaw.) ACQUISITION. but the need for the effective exercise of their functions. because as opposed to the erga omnes nature of objective personality. Brownlie provides for the fourth. Count Bernadotte. namely64 : ‐ ‐ ‐ ‐ International Committee of the Red Cross Holy See International Public Companies Transnational Corporations 1. a Swedish national was murdered in Jerusalem (which at that time was under the control of Israel).65 (d) Immunities66 . Qualified Personality • Qualified personality is easier to achieve than objective personality. (erga omnes will be discussed in detail in State Responsibility) The Court held in the Reparations Case that 50 states have the power. Simply put. Reparations for Injuries Suffered in the Service of the United Nations ICJ Advisory Opinion. while carrying out his duties as a UN Mediator in Palestine.68 Having an objective personality is harder to achieve because it may require the recognition of the entire international community or at least a substantial part of it. International Law. 69 Bernas. Individuals Note that the list is NOT exclusive. 64 65 Shaw. Insurgents 3. how is the action of the UN reconciled with the rights possessed by the State of which the victim is a national? Held: 68 1. 241 (2003) 66 Brownlie 67 erga omnes are obligations owed by States to the international community as a whole intended to protect and promote the basic values and common interests of all. There are other recognized subjects of international law namely recognized to have international legal personality. The General Assembly then requested for the Court’s advisory opinion on the matter in determining two questions: (1) Does the UN have a capacity to bring an international claim against the responsible government with a view to obtaining reparation due to respect of the damage caused (a) to the United Nations and (b) to the victim or persons entitled through him? (2) If 1(b) is in the affirmative. having rights and obligations directly under international law.67 (Note that the discussion on the elements of legal capacity of States as discussed in Brownlie is similar to those of international organizations. the following have become recognized as subjects of international law: 1. INTERNATIONAL ORGANIZATIONS In principle.69 2. National Liberation Movements 4. 5th ed.note that the basis for the immunities of international organizations is NOT sovereignty. it is established that international organizations possess objective international legal personality. Objective Personality • The entity is subject to a wide range of international rights and duties and will be entitled to be accepted as an international legal person by any other international person with which it has relations. two basic categories of legal personality: objective and qualified personality. Public International Law. 1949 (Midterms 2010 Question) Facts: In 1948. NATURE AND CONSEQUENCES OF LEGAL PERSONALITY Subjects are not necessarily identical in the nature or extent of their rights.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 20 of 25 CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW Generally. But how is such legal personality determined? It is determined by several factors including: (a) capacity to enter into relations with states and other organizations. 5th ed. This has been recognized by the ICJ in the Barcelona Tractions Case and further cited in the East Timor Case and the Israeli Wall Advisory Opinion. will operate erga omnes. • But how many States do you really need to vest an entity with objective international personality? 50. in conformity with international law. International Organizations 2. States are the subjects of international law. • What this means is that an entity has international legal personality ONLY with regard to that entity that recognizes such personality. Shaw only provides for the first three elements. There are however. (b) conclude treaties with them and (c) the status it has been given under international law. International law. As international law evolved. qualified personality is in personam. 89 (2009) Kat Aguila Kach H irang-O lave . to bring into being an entity possessing objective legal personality. however.

While not a stare or a superstate. and be able to carry out the obligations of the Charter. what it simply means is that it is a subject of international law capable of possessing international rights and duties and that it has capacity to maintain rights by bringing international claims. In answering the question of whether or not a certain entity has international legal personality. Charter? o It consists of 111 articles besides the Preamble and concluding provisions. • Brief history of the UN: o In the Moscow Declaration of General Security on November 1. answering it in the affirmative. • THE UNITED NATIONS What is the United Nations? It is a body which possesses juridical and international personality and is vested with prerogatives normally granted only to sovereign states. 1 (4)]. the UN has such powers as to enable it to send and receive diplomatic agents. 1(b) was also upheld in the affirmative. 1943. which is an integral part of it. 1 of the UN Charter)71: o To maintain peace and security by taking collective measures to suppress acts of aggression. it cannot carry out its functions if it was devoid of international personality. Seven Cardinal Principle (Art. (2) elective members o Other members may be admitted to the UN through the discretion of the General Assembly upon a favorable recommendation by the Security Council. signed and ratified the Charter. o To develop friendly relations based on respect for the principle of equal rights and self-determination of peoples o To achieve cooperation in solving international problems of an economic. (In 1950. o May be considered a treaty because it derives it binding force from the agreement of the parties to it.628 arising from the murder of Count Bernadotte. be willing. and by bringing about peaceful settlement of disputes.N Charter was signed on June 26. Annotation by Isagani Cruz Kat Aguila Kach H irang-O lave . o To be a center for harmonizing the actions of nations in the attainment of these common ends. which can only be explained on the basis of the possession of a large measure of international personality and capacity to operate upon the international plane. Purpose of the UN (Art. o It is intended to apply not only to the members of the Organization but also to non-Member states so far as may be necessary for the maintenance of peace and security. What is the U. 1945. social. is a necessary implication as being essential to the performance of its duties. conclude treaties and govern territories. Soviet Union and China recognized the necessity of establishing a general international organizations based on principles of sovereign equality of States for the maintenance of international peace and security. the UK. o Qualifications to be eligible for elective membership: (1) It must be a state (2) It must be peace-loving (3) It must accept. The UN is a supreme time of international organization intended to exercise and enjoy functions and rights. but has equipped it with organs and designated them with special tasks.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes (1) The ICJ ruled unanimously regarding 1(a). cultural and humanitarian character. It also includes the Statute of the International Court of Justice. The U. the UN must be deemed to have those powers which though not expressly provided for in its Charter. As such. 72 Annotation from International Law by Jorge Coquiat & Miriam Defensor-Santiago. Lebanon and Syria were included as original members although they were not yet states at the time. UN Charter)72 : Coquia. It does not mean that the UN is a State. and in promoting respect for human rights and fundamental freedoms. came into force on October 25. Under international law. Membership o 2 kinds of members in the UN: (1) original or charter members • Those states which having participated in the UN Conference on International Organization or having previously signed the Declaration by the United Nations. Note: The Philippines. the characteristics of that entity (as conferred to it by its Charter) must be considered. 2. What rights was it intended to possess? What functions was it obliged to carry out? The Charter not only intended the UN to be a “center for harmonizing actions of nations” [art. 1945 and upon 71 70 • • ratification by the five permanent members of the Security Council. US.) Page 21 of 25 • Court’s Opinion: The UN has international legal personality. The UN has capacity to bring an international claim.N. citing Oppenheim-Lauterpacht.70 o The initial blueprint of the organization was the Dumbarton Oaks Proposals which contained the tentative proposals for a General International Organization. Israel paid for the UN claim of $54.

questions relating to the trusteeship system. • Voting method: o Substantive questions Each member shall have one vote. • The Council approves trusteeship agreements in strategic areas. • It meets in regular annual session beginning on 3rd Tuesday of September or in a special session upon the call of a majority of its members or at the request of the Security Council. each of which is entitled to send not more than 5 representatives73. • The Security Council may take steps for the pacific settlement of disputes or when necessary even preventive or enforcement action. under the authority of the General Assembly is vested with responsibility for the promotion of international and social cooperation. Union of Soviet Socialists Republics. • The Council.e. UN Charter The elective members are elected for two-year terms by the General Assembly. Page 22 of 25 o o o o What are the six principal organs of the United Nations? (1) General Assembly • The most representative of the organs of the UN which consists of all the members of the Organization.75 (2) The Security Council • The key organ of the UN in the maintenance of international peace and security. civil war 76 Kat Aguila Kach H irang-O lave . Efforts to settle disputes must not endanger international peace. Mutual assistance The efficacy of the UN will depend upon the cooperation extended to it by the member-states. as long as the matter remains internal. and must be complied with in good faith in accordance with the principle of pacta sunt servanda. • Voting method: Each member has one vote and decisions are reached by the majority of those present and voting. that is. Art. 9(1). UN Charter. election of members of the Councils. • The Council meets in regular session in accordance with its rules and in special session at the request of a majority of its members. The only limitation is that the dispute must be international. the right to equality) Good faith The UN Charter partakes in the nature of a treaty. • Composition: o The members of the UN administering trust territories o The permanent members of the Security Council not administering trust territories UN Charter. • It consists of 5 permanent members (China.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes o o o Sovereign equality Based on one of the fundamental rights of states (i. suspension and expulsion of 75 73 members. and the US or the “Big Five”). France. Inclusion of non-members into the UN Charter coverage (discussed elsewhere in this reviewer) Domestic jurisdiction clause The rule is. This categorical outlawry of war is the most important principle. Peaceful settlement of disputes The most common amicable methods of settlement of disputes include the active participation of the ICJ and Security Council. 18(1). it must not be an internal dissention77. unless parties themselves submit the matter to the UN. o Procedural matters affirmative vote of any of any nine or more members (3) The Economic and Social Council • Composed of 54 members. UK. Art.e. • Voting method: Each member has one vote74 . and 10 elective members76 . The exceptions are: (1) where the international conflict aggravates into a threat or to an actual breach of international peace and security (2) where parties voluntarily invoke and submit to the jurisdiction of the UN for the settlement of the dispute. but distinction is to be made between the Big Five and the other members in the resolution of substantive questions. admission. (4) The Trusteeship Council • The organ charged with the duty of assisting the Security Council and the general assembly in the administration of the international trusteeship system. 74 Art. which are elected by the General Assembly for 3-year terms and may be re-elected immediately. it cannot be the subject of intervention by the United Nations. 18(2). Decisions on matters such as recommendations concerning international peace and security. Prohibition on threat and the use of force This principle prohibits threat or force upon the territorial integrity or political independence of states with certain exceptions. and budgetary matters require two-thirds of those present and voting. security and justice. 77 i.

with reelection. 4. 3(1). Its jurisdiction is based on the consent of the parties as manifested under the “optional jurisdiction clause” under Art. Term: 5 years.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes o As many other members elected for 3-year terms by the General Assembly as may be necessary. 36 of the Statute. Insurgents may enter into valid arrangements in certain instances but this would depend on the administration 78 79 Art. He is entitled to full diplomatic immunities and priveleges. terrorism. Statute of the ICJ Ibid. he has ceased to fulfill the required conditions. as well as to not commit international crimes such as aggression. AP II applies. the armed dissidents have armed command Second. (5) The International Court of Justice • The judicial organ of the UN which functions in accordance with the Statute. to be submitted to the General Assembly. o He also acts as a secretary in all meetings of the other organs and performs such other functions as may be assigned to him by these organs. 13. 3. (6) The Secretariat • The chief administrative organ of the UN. INSURGENTS Insurgents become subjects of international particularly in instances wherein a noninternational armed conflict exists (NIAC will be discussed in later chapters). 80 Art. and other crimes against humanity. What happens when these requisites are met? First. they are seen as having treaty-making capacity. These international obligations of individuals may include the obligation to comply with regulations of armed conflict. INDIVIDUALS Individuals have now come to be recognized as possessing rights and obligations under international law albeit these rights are limited. NATIONAL LIBERATION MOVEMENTS NLMs are organized groups fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination. They may also give advisory opinions upon the request of the General assembly or the Security Council. (If they do commit these crimes. which is headed by the Secretary-General. Statute of the ICJ 82 Oppenheim’s International Law. He also prepares the budget of the UN. in the unanimous opinion of the other members.81 • The functions of the Court are to decide contentious cases and to render advisory opinions. the ‘material field of application’ must be met: First. the insurgents will be recognized of belligerent status and second. • The Court is composed of 15 members78 who are elected by absolute majority vote in the General Assembly and the Security Council. 165 Kat Aguila Kach H irang-O lave . The elements of NLMs are: (1) they are based on territories which they are seeking to liberate and (2) a goal of self-determination. o The Sec-Gen is the highest representative of the UN and is authorized to act on its behalf.82 In NIAC. o The members has a term of 9 years80 and may be re-elected. genocide. o The Sec-Gen is chosen by the General assembly upon recommendation of the Security Council. p. o No two of the judges may be nationals of the same state79 . Page 23 of 25 of specific territory. And in order for insurgents to be considered as being part of a non-international conflict. there has to be control over a part of its territory as to enable them to carry out sustained and concerted military operations. o The judges must be of high moral character and possesses the qualifications required in their respective countries for appointment to the highest judicial offices. they are subjected to the jurisdiction of the ICC or the International Criminal Court. Statute of the ICJ 81 Art. not the ICJ!) 2. No judge can be removed unless. 18(1).

between. or consist of one whole island.”. subjugation. and straits. Art. • Lost by: abandonment or dereliction. which is articulated in Art. This doctrine puts forth the view that all the 7. each with its own territorial sea. • Includes internal waters in the land-locked lakes. 3046 as amended by R. What are the components of territory? (1) The terrestrial domain • Refers to land mass which may be integrated or dismembered or partly bounded by water. • The territorial sea may be defined regardless of its breadth. 1 of the 1987 Constitution86. cession. It must also be big enough to provide for the needs of the population. and all other territories over which the Philippines has sovereignty or jurisdiction. the seabed. in defining the internal waters of the archipelago. 86 83 84 Cruz The new convention on the law of the swas 87 Kat Aguila Kach H irang-O lave . as well as external waters in the territorial sea. the subsoil. Paris Convention on Aerial Navigation (1919). What is the Archipelago Doctrine?85 The Philippine position on the definition of its internal waters is commonly known as the archipelago doctrine. The waters inside the baseline shall be considered internal and thus. consisting of its terrestrial. according either to the normal baseline method or the straight baseline method. Chicago Convention on International Civil Aviation (1944). gulfs. erosion. rivers.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes • Page 24 of 25 CHAPTER 7 TERRITORY What is the definition of territory? It is the fixed portion of the surface of the earth inhabited by the people of the state. Hence. prescription. subjugation. Previously. • The Philippine territorial sea is now limited to 12 miles from the low-water mark of our coasts84. (3) The aerial domain • The airspace above the terrestrial domain and the maritime and fluvial domain of the state to an unlimited altitude but not including outer space. and certain bays. o Straight baseline method – straight lines are made to connect appropriate points on the coast without departing radically from its general direction. prescription.83 It must be permanent and indicated with precision because jurisdiction is determined on the basis of such. straight baselines should be drawn to connect appropriate points of the outermost islands without departing radically from the general direction of the coast. excluding the internal waters in bays and gulfs. including its territorial sea.A no. and other submarine areas. Basis of this article: RA no. natural causes. • Every state has complete and exclusive sovereignty over the airspace above its territory. the claim of the Philippines to its territorial sea was based on historic right or title which embraces all non-internal waters comprised within the limits set forth in the Treaty of Paris. not subject to entry by foreign vessels without the consent of the local state.100 islands should be considered one integrated whole instead of being fragmented into separate units. Sec. The waters around.87 How is territory acquired or lost? • Acquired by: discovery and occupation. form part of the internal waters of the Philippines. 1 states: “The national territory comprises the Philippine archipelago. revolution. Sec. fluvial and aerial domains. (2) The maritime and fluvial domain • Consists of bodies of water within the land mass and the waters adjacent to the coasts of the state up to a specified limit. regardless of their breadth and dimensions. cession. I. I. • What is the territorial sea? The territorial sea may be described as the belt of waters adjacent to the coasts of the state. 85 This doctrine has been embodied in the 1982 Convention of the Law of the Sea with the modificatioin that archipelagic sealanes shall be designated over the internal waters of the archipelago through which foreign vessels shall have the right of passage. and connecting the islands of the archipelago. and all applicable laws. the insular shelves. man-made canals within the land mass. accretion. o Normal baseline method – the territorial sea is drawn from the low-watermark of the coast to the breadth claimed following its sinuosity and curvatures but excluding internal waters in bays and gulfs. but must not be so extensive as to be difficult to administer or defend from external aggression. 5446. with all the islands and waters embraced therein.

Accretion • Accomplished through both natural and gradual processes. The arbitrator held that discovery alone without any subsequent act cannot suffice to prove sovereignty. However. and testamentary disposition. Awards. Cession • It is a method by which territory is transferred from one state to another by agreement between them. 231 Kat Aguila Kach H irang-O lave . Prescription • Prescription requires long. and the Netherlands asserted that it had possessed and exercised sovereignty. continued and adverse possession to vest acquisitive title in the claimant. The Island of Palmas Case88 Title was disputed between the US and the Netherlands to an island situatied between the boundaries of the Philippine archipelago as ceded to the former Spain under the Treaty of Paris. • Transfer of title is effected upon the meeting of the minds of the parties. • Illustration: during the Japanese occupation in the Philippines. it is formally annexed to it at the end of the war. gift by Austria of Lombardy to France in 1859. 88 2 U. The US primarily based its claim on the right of discovery of the island by Spain. of Int. the open seas or outer space which is res communes and not susceptible to discover and occupation).N. sovereignty in our country did not pass from US due to its inability to exercise it. no rule on the period of possession necessary to transfer title have yet been established. because the annexation is the act that completes the acquisition.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 25 of 25 Discovery and Occupation • It is an original mode of acquisition by which a territory not belonging to any state or terra nullius is placed under the sovereignty of the discovering state (except. the exchange between Great Britain and Germany of the island of Helgoland in 1890. donation. Dereliction • This occurs when the state exercising sovereignity over it physically withdraws from it with the intention of abandoning it altogether. barter or exchange. (2) Administration of the territory Subjugation • Territory is deemed acquired by subjugation when having been previously conquered or occupied in the course of war by the enemy. Arb. • Example: purchase by the US of Alaska from Russia in 1867. and is effected through transactions such as sale. Rep. • Requisites: (1) Possession must be claimed on behalf of the state represented by the discoverer and may be effected through a formal proclamation and the symbolic act of raising the national flag in the territory. as by the gradual and imperceptible deposit of soil on the coasts of the country through the action of water or by reclamation projects. since cession is essentially consensual. • Conquest alone confers only inchoate rights.

Sign up to vote on this title
UsefulNot useful

Master Your Semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master Your Semester with a Special Offer from Scribd & The New York Times

Cancel anytime.