PUBLIC INTERNATIONAL LAW

Finals Reviewer
Prof. H. HARRY L. ROQUE

Originally Prepared by:
* Bok * Ceejay * Tif * Gem * Tin * This Finals Reviewer would not have been possible without the help of the following: ~ Lora ~ PJ ~ Carol ~ Jerome ~ Ben ~ Cathe ~ Easter ~ Mike ~ Marco ~ Dave ~ UPLAW 2009B

This Updated Edition by: Karichi E. Santos UP Law B2012

UP Law B2009 Reviewer (Karichi Edition)  

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I. IN GENERAL1
HIGGINS, Chapter 1: The Nature and Function of International Law
How is International Law defined in the light of developments in international legal relations since the end of the Second World War? International law is a body of legal principles, norms and PROCESSES which regulates the relations of States and other international persons, and governs their conduct affecting the interests of the international community as a whole. Why should International Law be viewed as a NORMATIVE SYSTEM and not merely a set of rules? y The rules view assumes that the law is indeed ͞rules͟ Because it is not! Decision makers in International Law don͛t just find the relevant rule, it͛s just part of the entire process. The accumulated trend of past decisions should not be applied oblivious of its context. y However, the specialized social process to which the word ͞law͟ refers to include many things beside rules e.g. power of social and humanitarian factors. It avoids partiality which may be utilized to attain political ends. y Rules are just accumulated past decisions which were formulated within a certain context once the context has changed, these rules will be unable to fix today͛s problems which will lead to these rules being ineffective and will inevitably be disobeyed y Lacunae there are still topics on which there are no specific rules of IL; thus the view of IL as merely rules creates a gap in the law. But by viewing IL as a process, we have available to us the tools for authoritative decision making on the problem, notwithstanding the absence of a precise rule which must be applied. Sir Roque says: What͛s wrong with the ͞rules based definition͟? y Advantage of viewing IL as a process: When the set rules no longer apply, there may be the emergence of a new rule or norm. Law is divorced from reality. It͛s incapable of changing with the times. y Take for instance the Southwest African case: Who founded state of Liberia? Runaway slaves intended for delivery to US. Broke away from cargo ships and founded what is now called land of free slaves. They question the practice of apartheid ʹ systematic segregation based on race. It went to court and what did it want from the court? Enforce systematic mode of segregation, in breach of trusteeship. This was in the 50s. Instead of deciding on the merits, it ruled affirmatively on the preliminary objection. Why did the court said there͛s no jurisdiction? It was not a legal issue. Court only had competence to deal with legal issue. It was a useless tribunal. What kind of tribunal would say that systematic segregation of black was only moral and ethical issue? Blatant discrimination on the basis of skill. Consequence: create other courts. Eat a humble pie and turned 360 degree ʹ Portugal v. C. Right to selfdetermination is not a fundamental right but an erga omnes. Any state has right to advance the right even without suffering special injury. y It widens the gap between ͞what the law is͟ (lex lata) and ͞what the law should be͟ (lex ferenda).

y

Competent decision makers and policy makers, e.g. domestic judges and international organizations while considering rules, will also consider other factors and that͛s a fact.

What is the basis of International Law͛s binding nature? / Why do states and individuals recognize International Law as law? 1. NATURAL LAW ʹ some writers suggest that it is in the natural order of things that certain matters should be regulated in a compulsory manner. An obligatory foundation to the basic precept of justice is to be found in natural law 2. CONSENT ʹ this view is based on the sovereignty of states, which in turn emphasizes their freedom to act unilaterally save to the extent they agreed upon to be constrained. 3. RECIPROCITY ʹ as notions of justice were replaced by consent, so consent has gradually been replaced by consensus which has come about because states perceive a reciprocal advantage in cautioning self-restraint. Who are the subjects of the law? y States y Individuals y International organizations

II. SOURCES OF INTERNATIONAL LAW
Art. 38, ICJ Statute 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Art 59, ICJ Statute The decision of the Court has no binding force except between the parties and in respect of that particular case. Article 53, 1969 Vienna Convention on Treaties Treaties conflicting with a peremptory norm of general international law (͞jus cogens͟) - A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a ͞peremptory norm of general international law͟ is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. What are the sources of international law? As identified in Article 38(1) of the ICJ Statute, these sources are as follows:

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Thanks to Bok, PJ, and Lora for this part.

UP Law B2009 Reviewer (Karichi Edition) a. b. c.  

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international conventions, whether general or particular, establishing rules expressly recognized by contesting States; international custom, as evidence of a general practice accepted as law; and the general principles of law recognized by civilized nations.

Sources of law refer to norms derived from international conventions or treaties, customs, and general principles of law. The distinctive character of these norms is that they are created, or they acquire binding effect through the methods pointed above. Treaty and custom are the primary sources of international law. While a treaty is a legal instrument which constitutes a material source of norms, treaty-making is a norm-creating process, a method of formalizing the consent of States by which they intend to be bound by the treaty. The formation of custom is as well as a norm- creating method. A formal source of customary norms. Sir Roque says: y Does Art 38 (1) of ICJ statute purport to provide the source of IL? No! It only provides that the enumeration is what the Courtshall apply. y Is there a hierarchy? Yes! A-C are primary means while D is the subsidiary means. So do not cite subsidiary means unless you have no other formal source. y Majority view: treaties are formal sources. y Can A,B,C overlap? Yes! E.g. Genocide is sourced from international conventions and customs. What is the effect if a treaty norm and a customary norm y overlap? Even non-signatories to the convention will become bound by the norm. This overlap effect was first illustrated in the Kuroda case. y Take a look at Art. 38 No. 1c ͞international custom, as evidence of general practice accepted as law͟ ʹ the correct phrasing ͞International custom, as evidenced by general practice accepted as law.͟ y Violations of law can lead to formation of a new law. A number of writers have distinguished formal sources from material sources of international law. What is the distinction? A. Formal sources consist of the methods and procedures by which norms are created; which entity promulgated the law which is binding E.g. In municipal law, the constitutional machinery of law making Sir Roque says: The ICJ cannot be considered a formal source because it does not have concept of stare decisis. Not even United Nations General Assembly resolutions because such resolutions are merely restatements of customs. B. Material sources are the substantive evidence of the existence of norms. It supplies the substance of the rule to which the formal sources gives the force and nature of law; evidence that the norm in fact exists E.g. A ͞rule,͟ for example, will be considered legally binding as customary norm or custom on account of the process or method by which it was created through the formation of general practice accepted as law. Hence, custom as a normcreating process is a formal source of law. Its content in terms of state practice arising from a sense of legal duty is its material source. Sir Roque says: the RA in printed form Sir Roque: Despite the absence of an ͞international congress͟ we can still point out specific sources of international law.

What are the elements of ͞INTERNATIONAL CUSTOM͟? The elements of custom or customary international norm are: 1. Duration 2. Uniformity, consistency of practice 3. Generality of practice, characterized by uniformity and consistency 4. Opinio juris sive necessitatis, or ͞general practice accepted as law͟ - recognition of the practices that are legally binding
y y y

͞State practice͟ as an element of customary law must be ͞both extensive and virtually uniform͟. North Sea Case Some degree of uniformity is required. Anglo-

Norwegian case In the Asylum case, it considers ͞general practice͟ as
͞constant and uniform usage practiced by States in question.͟ But in any event, universality of practice is NOT REQUIRED.

y

Repetition of practice or actions of states is necessary. A customary norm of international law arises in consequence of the repeated action of states. The element of repetition is basic to the formation of a rule of conduct. In the majority of instances the repetition of specific actions in analogous situations can lead to the consolidation of such practice as a rule of conduct. According to Judge Hudson: ͞elements which must be present before a PRINCIPLE OF INTERNATIONAL CUSTOM can be found to be established͟: a. concordant practice by a number of states with reference to a type of situation falling within the domain of international relations continuation or repetition of the practice over a considerable period of time conception that the practice is required by or consistent with prevailing international law general acquiescence in the practice by other states.

b. c. d.

How is ͞OPINION JURIS͟ understood? In the formation of international law norms through custom, States create law by what they do in practice OR by their conduct. Opinio juris means that in doing so, they must believe that the practice or conduct is obligatory. They do so for the reason that the practice is required by law, and not merely because of courtesy or political expediency. Are judicial decisions and teaching of publicists sources of international law? y Decisions of national courts are not sources of law as such. They are merely ͞subsidiary means for the determination of rules of law͟. They are regarded as evidence of norms of international law. They are the means by which the rules of law may be verified. In other words, they may be regarded as evidence of law. y Strictly speaking, the Court does not observe a doctrine of precedent but strives nevertheless to maintain judicial consistency. y Writings of publicist are only evidence of law, but in some subjects, individual writers had had a formative influence, like Gidel͛s contribution to the Law of the Sea. Sir Roque says: International law is not what the ICJ says because: y there is no principle of stare decisis in ICJ itself

What is a ͞JUS COGENS NORM͟? A jus cogens or peremptory or is a norm which States cannot derogate or deviate from in their agreements. it belies the existence of a legal system.Effect if a treaty merely codifies norms: Follow the exception to the general rule (non-signatory states are not bound by a treaty) a.͟ So even without local legislation. US and Japan. that is. Barcelona Traction y Ex aequo et bono: involves elements of compromise and conciliation Sir Roque says: Equity is a vague concept. debases the theoretical assumption that there is predictability in law.͟ Kuroda contests the legality of Executive Order No. Styer (1945) Sir Roque says: . Yamashita contends that the MC was not duly constituted. Jalandoni (1949) Sir Roque says: . those by custom are called ͞customary international law. that ͞The Philippines renounces war as an instrument of national policy. in violation of the laws and customs of war. his petition for prohibition can neither prosper since the MC is not made party respondent in this case. concurring and dissenting: International law (in particular IHL) evolved from custom & practice throughout history. Many of the basic ideas which prevail today in the customs and usages of nations and became part of the international law emerged from the human mind centuries before the Christian Era. In general. for having unlawfully disregarded and failed ͞to discharge his duties as such commander to control the operations of members of his command. 68 which established the National War Crime Office to prosecute those who have offended war crimes. North Sea Continental Shelf cases 2. therefore without jurisdiction and that there is against him no charge of an offense against the laws of war.General principles of law are mostly remedial principles. Norms created by treaty are on the whole called ͞conventional international law͟.This finds support in the Incorporation Clause of the Constitution General principles of law (as opposed to treaties) automatically form part of the law of the land. In fact. for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. . the commanding General of the Japanese Imperial Forces in the RP during WWII. This is his petition for habeas corpus and prohibition. PERFECTO. and. The Court held that his petition for habeas corpus is untenable since he seeks no discharge from confinement but merely his restoration to his former Prisoner of War status. it can͛t be denied that the rules and regulations of the Hague and Geneva conv. and signed the Geneva Conv. how do norms of international law come into being? They are created by States through definite norm-creating methods accepted or recognized by them as means of expressing their consent as to the binding effect of those norms. RP is bound to comply with established rules in treating war criminals. Yamashita was the former commanding general of the Japanese Imperial Army in the Philippines. and adopts the generally accepted principles of international law as part of the law of the nation. form part of and are wholly based on the generally accepted principles of international law. by the unconquerable natural urge for improvement. who were signatories to the 2 Conventions. Geneva Conventions form part of are wholly based on the generally accepted principles of international law.UP Law B2009 Reviewer (Karichi Edition) y   Page 3 of 130 ICJ decisions are therefor only material source. The rules & regulations of the Hague. subsidiary means covering Land Warfare. Such is the idea that prisoners of war are entitled to humane treatment. Even if RP is not a signatory to the Hague Conv. therefore.͟ RP Consti. . was charged before the AFP formed Military Commission. binds countries of the world b. Impelled by irrepressible endeavors aimed towards the ideal. these rules and principles were accepted by the 2 belligerent nations. Hence. J.͟ Yamashita v. Burkina Faso-Mali case: equity infra legem 4. humanity has been struggling during the last two dozen centuries to develop an international law which could answer more and more faithfully the demands of right and justice as expressed in principles which. The methods of creating or recognizing norms are referred to as sources of law. form part of the law of our nation even if RP was not a signatory to the conventions embodying them. whether or not they are signatories to the treaty . Likewise. As such. he is charged of ͚crimes͛ not based on law. adopts the generally accepted principles of international law as part of the law of the nation. Such rules and principles. Fisheries Jurisdiction cases 3. permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Japanese Forces. and now charged before an American Military Commission with the most monstrous crimes ever committed against the Americans and Filipinos. that treasons of war should be discountenanced. Equity in judgments and advisory opinions of the ICJ? y Cannot be strictly a source of law but it may be an important factor in the process of decision y Example of cases which used equity: 1. the Philippine is bound by customary law. . 2 of our Constitution provides in its section 3. It is a mandatory norm and stands on a higher category than a jus dispositivum norm which States can set aside or modify by agreement.Customary norms bind everyone who follow that custom. and that belligerents must abstain from causing harm to non-combatants.It is possible for treaties and customary norm to overlap. .Mankind in general has been covered by laws governing as far back the ancient times. only in 1947. national and international. Kuroda argues that since the Philippines is not a signatory to the Hague Convention on Rules and Regulations . by the unquenchable thirstiness of perfection in all orders of life.There is even no need for an incorporation clause! What is important is we are part of the community of nations! Kuroda. the Constitution has provided for the application of international law. international law is based on their normative consent.. States create or recognize norms as binding law. By means of treaty or convention and custom. EO68 and prescribing rules and regulations governing the trial of accused war criminals is valid and constitutional since Art. weakly enunciated at first in the rudimentary juristic sense of peoples of Kuroda v.

e. OAS Charter) is barred. supplying and otherwise encouraging. But even if the customary norm and the treaty norm were to have exactly the same content. unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court. and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule. The seriousness or unfathomable gravity of the charges against him must not be taken into consideration in order that true justice may be administered in this case. though with all due caution. and the rules do not have the same content. The areas governed by the two sources of law thus do not overlap exactly. of the Statute contained a reservation excluding from operation of the declaration: "disputes arising under a multilateral treaty. the Court deems it sufficient that the conduct of States should. and defenses that all prisoners should have. for a rule to be established as customary. This is so from the standpoint of their applicability. and consecrated by all the civilized nations of the world. on other subjects. Customary law operates independently of treaty law. In order to deduce the existence of customary rules. arming. from a rule of treaty-law because of the breach by that other State of a different rule of treaty-law. be deduced from the attitude of the Parties and the attitude of States towards certain General Assembly resolutions. Thus. it further prevents it from applying in its decision any rule of customary international law the content of which is also the subject of a provision in those multilateral treaties (that all principles of customary and general international law are barred. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice. Nicaragua v. duty to make reparations i. at last were accepted. be consistent with such rules. if that rule parallels a rule of customary international law. also included in the same treaty. the shared view of the Parties as to the content of what they regard as the rule is not enough. and generally accepted opinions of thinkers. equipping. Control test ʹ when action of armed group is an act of state 3. restore status quo ante ii. then whether or not the State's conduct is in fact justifiable on that basis. or (2) the United States of America specially agrees to jurisdiction". the corresponding practice must be in absolutely rigorous conformity with the rule. When self-defense can be invoked 4. protections. Customary norm has separate applicability even if part of a treaty. UN Charter. and directing military and paramilitary actions in and against Nicaragua. Yamashita is entitled to be accorded all the guarantees. The effect of consent to the text of such resolutions cannot be . as these are subsumed and supervened by the provisions of the UN Charter. US argues that adjudication of claims based on those treaties (i. two rules of the same content are subject to separate treatment as regards the organs competent to verify their implementation. paragraph 2. Duty of state when found in breach a. Rules which are identical in treaty law and in customary international law are also distinguishable by reference to the methods of interpretation and application. aiding. the Convention on Rights and Duties of States. support to the contras. this would not be a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm. and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law. economic measures). and the Convention concerning the Duties and Rights of States in the Event of Civil Strife. It rather demonstrates that in the field in question. vis-a-vis the other State. Invoking its multilateral treaty reservation. legal philosophers and other expounders of just rules and principles of international law.) The Court held that such acts of the US constitute breaches of obligations under customary international law not to intervene in the affairs of another state. Nicaragua filed an Application instituting proceedings against the US in respect of a dispute concerning responsibility for military and paramilitary activities in and against Nicaragua (mining of ports. Thus the effect of the reservation in question is not merely to prevent the ICJ from deciding upon Nicaragua's claims by applying the multilateral treaties in question. the Charter of the Organization of American States. Bound as it is by Art. conventions and treaties. pay compensation to extinguish consequences of illegal acts 5. and in particular the UN Charter. judicial decisions and executive pronouncements. If a State acts in a way prima facie incompatible with a recognized rule. i. one of them may argue that the applicability of a treaty rule to its own conduct depends on the other State's conduct in respect of the application of other rules. if a State exercises its right to terminate or suspend the operation of a treaty on the ground of the violation by the other party of a "provision essential to the accomplishment of the object or purpose of the treaty". in recruiting. A State may accept a rule contained in a treaty not simply because it favors the application of the rule itself. Existence of the rule on opinio juris of States must be confirmed by practice. Opinio juris can be deduced from attitude of states toward certain GA resolutions. in general. it is exempted. even if two norms belonging to two sources of international law appear identical in content. Under these principles. air space infringement. the "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN". duty to cease in the breach b. 6. recognized. the significance of that attitude is to confirm rather than to weaken the rule. Court must make a determination of state practice & opinio juris. But if the two rules in question also exist as rules of customary international law. 38 of its Statute to apply international custom "as evidence of a general practice accepted as law". if impossible. has violated and is violating its express charter and treaty obligations to Nicaragua. In a legal dispute affecting two States. not to use force against another state. not to violate the sovereignty of another state. by the inherent power of their universal appeal to human conscience. not as indications of the recognition of a new rule.e. but also because the treaty establishes what that State regards as desirable institutions or mechanisms to ensure implementation of the rule. these norms retain a separate existence. supporting. the failure of the one State to apply the one rule does not justify the other State in declining to apply the other rule. For example. depending on whether they are customary rules or treaty rules. The Court does not consider that. training. In the field of customary international law. but defends its conduct by appealing to exceptions or justifications contained within the rule itself. financing. This opinio juris may. The US declaration of acceptance of the compulsory jurisdiction of the Court under Article 36. Nicaragua contends that the US. according to the customs and usages. customary international law continues to exist alongside treaty law.UP Law B2009 Reviewer (Karichi Edition)   Page 4 of 130 antiquity. the Court may not disregard the essential role played by general practice. Definition of armed attack ʹ GOOGLE THIS! 2. US (1986) Sir Roque says: Nicaragua is authority on 1. Conduct of a state must be consistent with the rule. There are a number of reasons for considering that.

at most de lege ferenda (ideal norm).͟ Netherlands and Denmark argue that the use of this method is not in the nature of a merely conventional obligation. or to the facilities or armed contingents to be provided under Article 43 of the Charter. Denmark & Netherlands further argues that even if. and not at all de lege lata or as an emerging rule of customary international law. Germany proposed that delimitation of the continental shelf between the parties is governed by the principle that each coastal State is entitled to a just and equitable share. as it now figures in Art. somewhat on an experimental basis. like other rules of general or customary international law. and therefore as having an a priori character of so to speak juristic inevitability. the International Law Commission's discussions reveal that not only was the notion of equidistance never considered from the standpoint of its having a priori a character of inherent necessity: it was never given any special prominence at all. then binding on all even non-parties to a treaty. Recognition that a rule is fundamental or a jus cogens establishes CIL. a "universal international law". In considering the equidistance method. The equidistance method could not be used where it would not achieve a just and equitable apportionment of the shelf. it is based on the work done in this field by international legal bodies. Without . This is clearly not the sort of foundation on which Art. Art. it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. a "universally recognized principle of international law". is binding on Germany automatically and independently of any specific assent. 6. North Sea Continental Shelf Cases (1969) Sir Roque says: The ILC composed of experts is created by the UN GA to codify CIL. their drafts/works are subsidiary means of discovering CIL. be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. The Court notes that the principle of equidistance. at all events potentially.-and. but is. for example. and certainly no priority. On the contrary.UP Law B2009 Reviewer (Karichi Edition)   Page 5 of 130 understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. the view put forward derives from what might be called the natural law of the continental shelf. especially those of an institutional kind. Yet in the particular form in which it is embodied in Art. Nicaragua in its Memorial on the Merits states that the principle prohibiting the use of force embodied in Article 2 "has come to be recognized as jus cogens. Considered in abstracto the equidistance principle might be said to fulfill this requirement. The principle of non-use of force. partly on the basus of subsequent state practice. 6. It would be necessary that the provision should. A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2 of the UN Charter of may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law.-the claim being that these various factors have cumulatively evidenced or been creative of the opinion juris sive necessitatis. Denmark. As a matter of positive law. paragraph 2. State practice 2. at the date of the Geneva Convention on the Continental Shelf. If treaty is a norm. requisite for the formation of new rules of customary international law. you͛ll never never never know PIL] 1. par. As for Denmark and the Netherlands. had not become customary international law and was not under the circumstances the appropriate method. 4. Purely treaty norm custom 2. 6. may thus be regarded as a principle of customary international law. 3. and a "principle of jus cogens". The boundary should be determined ͞on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast and of the principle that the boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than to the coast of the other Party. causing it to come after a primary obligation to effect delimitation by agreement. on State practice and on the influence attributed to the Geneva Convention itself. It contemplates four situations: 1. such a rule has come into being since the convention. The Court does not agree with the contentions of Netherlands and Denmark. In its fundamentalist aspect. found it material to quote the views of scholars that this principle is a "universal norm".͟ Germany contents that making use of the equidistance method of Article 6. The US. 6 of the Convention could be said to have reflected or crystallized such a rule. direct or indirect. in its Counter-Memorial on the questions of jurisdiction and admissibility. 6 is so framed as to put ND 2 the obligation to make use of the equidistance method. Germany and the Netherlands have submitted to the Court certain differences concerning 'the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them. It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of rules). was proposed by the ILC with considerable hesitation. and that where the parties were in disagreement as to the boundary and special circumstances did not justify another boundary. their work deals with customary norms. In the first place. The Court does not agree͙ Provision should be norm-creating. 2. in the sense that the equidistance principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State. no rule of CIL in favor of the equidistance principle and no such rule was crystallized in Art. Opinio juris ʹ belief that the norm is accepted as law As to probative value of ILC created by the GA to codify customary international law norms How much time is needed in order for a treaty obligation to be considered as having crystallized into a customary norm? 1. or must now be regarded as involving. not as such conditioned by provisions relating to collective security. The only key is that there is extensive and virtually uniform state practice. then ͞the boundary between them is to be determined by the application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. delimitation should be governed by the principle of Art. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. How do we know if a given norm has become customary? [if you still don͛t know this. given by the latter. Time is not of the essence 2. This contention has both a positive law and a more fundamentalist aspect. Treaty custom is binding on all. to be thenceforth treated separately from the provisions. partly because of its own impact. 6. Since. and having regard to the relationship of that Article to other provisions. a rule that is part of the corpus of general international law. this must be open to some doubt. to which it is subject on the treaty-law plane of the Charter. of the Continental Shelf Convention. The Court is requested to decide what are the applicable 'principles and rules of international law'. Custom is binding on all.

1 and 2 possess. Finally. . 6. Secondly the part played by the notion of special circumstances relative to the principle of equidistance as embodied in Art. by virtue of the economic. Main issue: WON Colombia͛s unilateral and definitive qualification that dela Torre is a political refugee is binding on Peru such that he can be given safe conduit passage to Columbia? Colombia contends as the country granting asylum that it is competent to qualify the offence for the purpose of the said asylum. with due regard to the inviolability of his person. to avoid armed conflict Note: There must be a physical crossing of national border. 6.Principles of IL do not recognize any rule of unilateral and definitive qualification by the State granting diplomatic asylum. 1950) Doctrines: . Southwest Africa (SWA) contends that South Africa. by agreement. as it is in Art. contends that the grant of asylum by the Colombian Ambassador at Lima to Haya de la Torre was made in violation of Southwest Africa Case (2nd Phase. including that of States whose interests are specially affected. seem to deny to the provisions of Art. so far as any particular mandate is concerned. even without the passage of any considerable period of time. rules of international law can. should have been both extensive and virtually uniform in the sense of the provision invoked. The sacred trust. Passage of time immaterial in the formation of a new rule of CIL. while it might not of itself prevent the equidistance principle being eventually received as general law. within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition. be derogated from in particular cases. The principle of the "sacred trust" had no residual juridical content which could. It shows how neutral rules can lead to bias and partiality. or principle. you should not be brought back to your homestate 2. The applicant must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question. Furthermore. provided it included that of States whose interests were specially affected. Right of non-refoulement (re-fu-ma) ʹ pending administrative inquiry as to entitlement to refugee status.UP Law B2009 Reviewer (Karichi Edition)   Page 6 of 130 attempting to enter into. . 6 the same norm-creating character as. for instance.No uniform practice and opinio juris in this case. must raise further doubts as to the potentially norm-creating character of the rule. 6. Art. does add considerably to the difficulty of regarding this result as having been brought about (or being potentially possible) on the basis of the Convention: for so long as this faculty continues to exist. still unresolved controversies as to the exact meaning and scope of this notion. The Court did not decide on the merits because it did not consider the case as involving a legal issue because there was no law prohibiting apartheid. and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. South Africa. The Applicants tried to derive a legal right or interest in the conduct of the Mandate for South West Africa from the simple principle of the ͞sacred trust͟. an indispensable requirement would be that within the period in question. But in order that this interest might take on a specifically legal character the sacred trust itself must be or become something more than a moral or humanitarian ideal. and the very considerable. a very widespread and representative participation in the convention might suffice of itself.. is bound in the case now before the Court to give the guarantees necessary for the departure of Haya de la Torre from the country. Right to not be prosecuted when one enters a state of refuge ʹ notwithstanding lack of visa/passport Who is a refugee? A person who has to leave his/her home either: 1. no customary norm. on the other hand. the faculty of making reservations to Art. It had been attempted to derive a legal right or interest in the conduct of the Mandate from the simple existence. The moral ideal must not be confused with the legal rules intended to give it effect.-but this is not normally the subject of any express provision. Although the passage of only a short period of time is not necessarily. to avoid prosecution 2. that such practice is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations. color. of the "sacred trust". cease the practice of apartheid in the Territory.The party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party. it is well understood that. or as between particular parties. Peru. Sir Roque says: There are two basic rights involved in this case: 1. national or tribal origin in establishing the rights and duties of the inhabitants of the Territory. as the territorial State. for the reasons already indicated. 1966) Sir Roque says: This is a legal challenge brought by Ethiopia & Liberia against South Africa with respect to the practice of apartheid (although never mentioned here!!!). and the Convention on Asylum. Therefore. exercising administrative powers over the their territory by virtue of a mandate practiced apartheid. still less pronounce upon any question of jus cogens. Court can only rule on legal rights/obligations. Widespread & representative participation in the convention including specially affected states. in practice. 13-of which there is at present no official indication-it is the Convention itself which would. short though it might be. and is not the subject of any revision brought about in consequence of a request made under Art. and that the Union has the duty forthwith to . operate per se to give rise to legal rights and obligations outside the system as a whole. Asylum Case ʹ Haya Dela Torre (Columbia/Peru. and of American international law in general and that Peru. a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule. and that the Union has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfill its duties under such Articles. In order to generate legal rights and obligations. has distinguished as to race. it must be given juridical expression and be clothed in legal form. social and educational policies applied within SWA has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory. it was said was a "sacred trust of civilization" and hence all civilized nations had an interest in seeing that it was carried out. The principles set forth here have been obliterated in latter cases. i. political. Regarded necessary before a conventional rule can be considered to have become a general rule of international law might be that. The action is based on the mandate given to South Africa to promote the material & moral well-being & social progress of inhabitants of the South West African territory. State practice. that its failure to do so is in violation of its obligations as stated in the second paragraph of Article 2 of the Mandate and Article 22 of the Covenant. Fundamental equality is now considered an erga omnes obligation since it is a fundamental human right.e. or of itself.

copy of a sworn declaration of intention and proper notice of the hearing. The limited number of States which have ratified this Convention reveals the weakness of this argument. What constitutes a stateless refugee. and Article 2. It is well recognized that declarations made by way of unilateral acts. inasmuch as France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific. The Solicitor General (1948) (to be read in connection with the asylum case) Sir Roque says: We are civilized people now so we don͛t do harsh things to each other. is supported by the well-known fact that the ruthlessness of modern dictatorship has scattered throughout the world a large number of stateless refugees or displaced persons. Nuclear Test Cases (1974) Doctrine: Unilateral declarations can be binding. the Bolivarian Agreement of 1911 and the Havana Convention of 1928. and with an intent to be bound. as Sec. He is.UP Law B2009 Reviewer (Karichi Edition)   Page 7 of 130 Article 1. citizen is sufficient to grant citizenship. Although a Russian by birth he is not a citizen of Soviet Russia. He is not suffering from any mental alienation or incurable contagious disease. The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. been ratified by not more than eleven States and the Convention of 1939 by two States only. had been lost or destroyed during the battle for the liberation of Manila. the Colombian Government has referred to a large number of extradition treaties which. such as the Montevideo Conventions of 1933 and 1939. without country and without . It is contended that this Convention has merely codified principles which were already recognized by Latin-American custom. Neither is he a polygamist or a believer in the practice of polygamy. & the certificate alluded to has not been reconstituted. He disclaims allegiance to the present Communist Government of Russia. The Court considers that these statements convey an announcement by France of its intention to cease the conduct of atmospheric nuclear tests following the conclusion of the 1974 series. where the declarations of intention to become a Filipino citizen were filed. much less to the present Government of the land of his birth to which he is uncompromisingly opposed. yung tisay na TV show host. following the completion of the 1974 series of atmospheric tests. The Convention of 1933 has. He does not believe in the necessity or propriety of violence. Appellant's contention that attachment of the certificate of arrival is essential to the validity of a declaration finds no support in the wordings of the law. therefore. With regard France͛s declaration. Kookooritchkin. Apo ni Ronald si Jacky Kookooritckin. a letter from the President of France to the Prime Minister of New Zealand. declarations or intention to become a Fil. belonging to no State." Custom = constant uniform usage. filed a petition for naturalization. An undertaking of this kind. by various public statements made in 1974. This follows from Article 38 of the Statute of the Court. The Court has found that the claim of New Zealand/Australia no longer had any object and that the Court was therefore not called upon to give a decision thereon. the first of these statements is contained in a communiqué which was issued by the Office of the President of the French Republic on 8 June 1974 and transmitted in particular to the Applicant: ". nor any subsequent acceptance. it is invalidated by the preamble which states that this Convention modifies the Havana Convention. The records of the Bureau of Justice. accompanied with supporting affidavits of 2 citizens. The case was reconstituted after the war and a resolution was eventually issued granting the petition. even though not made within the context of international negotiations. item I (inciso primera). the claim no longer has any object and there is nothing on which to give judgment. has announced its intention. is binding. nor even any reaction from other States is Kookooritchkin v. France. The tyrannical intolerance of said dictatorships toward all opposition induced them to resort to beastly oppression. a former Russian citizen. . and furthermore. Further statements are contained in a Note from the French Embassy in Wellington. paragraph 2. Unilateral acts may have the effect of creating legal obligations. the Court finds that the objective of New Zealand/Australia has in effect been accomplished. flag. which refers to international custom ͞as evidence of a general practice accepted as law. the case was suspended and the documents presented were destroyed. may have the effect of creating legal obligations. & it is only natural that the not-so-fortunate ones who were able to escape to foreign countries should feel the loss of all bonds of attachment to the hells which were formerly their fatherland's. 5 of Commonwealth Act no. a stateless refugee in this country. of the Convention on Asylum. the original and ultimate objective of New Zealand/Australia is to obtain a termination of those. that intention confers on the declaration the character of a legal undertaking. in view of the stage reached in carrying out the French nuclear defence programme France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed". a press conference given by the President of the Republic. Certificate of arrival not essential. When it is the intention of the State making the declaration that it should become bound according to its terms. a speech made by the Minister for Foreign Affairs in the United Nations General Assembly and a television interview and press conference by the Minister for Defense.͟ In support of its contention concerning the existence of such a custom. concerning legal or factual situations. He is not against organized government or affiliated with any association which upholds and teaches doctrine opposing all organized governments. and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. personal assault or assassination for the success or predominance of his ideas. the dispute having thus disappeared. as already explained. if given publicly. Appellee's testimony. It has invoked conventions which have not been ratified by Peru. can have no bearing on the question now under consideration. 473 uses the words "has been issued. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question. It is particularly the Montevideo Convention of 1933 which Counsel for the Colombian Government has also relied on in this connection. It has cited conventions and agreements which do not contain any provision concerning the alleged rule of unilateral and definitive qualification such as the Montevideo Convention of 1889 on international penal law. The proceedings instituted before the Court concerned the legality of atmospheric nuclear tests conducted by France in the South Pacific. But due to the Japanese invasion. paragraph 1. concentration camps and blood purges. and that it is valid against Peru as a proof of customary law. to cease the conduct of such tests. Petitioner belongs to that group of stateless refugees. Nothing in the nature of a quid pro quo. besides being uncontradicted. in fact. .

may be used as evidence of state practice and opinio juris. like the filing of a new application. when it stated that "the Applicant could request an examination of the situation in accordance with the provisions of the Statute". France).No opinio juris: The non-use of nuclear weapons was susceptible to two explanations. all of which are proceedings incidental to New Zealand's main request. Samoa. New Zealand's request for provisional measures and the applications for permission to intervene submitted by Australia. France)?". the nuclear states may say that there͛s no need for them to use it because it͛s an effective deterrent to armed conflicts.͟ The Secretary-General of the United Nations officially communicated to the Registrar the decision taken by the General Assembly to submit a question to the Court for an advisory opinion: to request the International Court of Justice urgently to render its advisory opinion on the following question: 'Is the threat or use of nuclear weapons in any circumstance permitted under international law?'. . . including the Applicant. . obligations to which both New Zealand and France have in the present instance reaffirmed their commitment Legality of the Use of a State of Nuclear Weapons (1996) Doctrines: . thus offering a reply to the question posed based on law. only when used in an armed conflict. it found. on 25 November 1986. The Court limited the present proceedings to the examination of the following question: "Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. the other concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph 63 thereof. the Marshall Islands and the Federated States of Micronesia as well as the declarations of intervention made by the last four States. even if non-binding. And that. take account of the arguments derived by New Zealand. however. are by their very nature susceptible of a reply based on law ." Constitutes a legal question. In its examination of that question the Court found in the first place that by inserting in paragraph 63 the above-mentioned phrase. therefore. The binding character of the undertaking results from the terms of the act and is based on good faith interested States are entitled to require that the obligation be respected. was not the case. while recognizing the possibility of the dispute being resolved by a unilateral declaration on the part of France. likewise had to be dismissed. second only to Southwest Africa case. . form its own view of the meaning and scope intended to be given to these unilateral declarations.UP Law B2009 Reviewer (Karichi Edition)   Page 8 of 130 required for such declaration to take effect. the Court found that that special procedure would only be available to the Applicant if circumstances were to arise which affected the basis of the 1974 Judgment. . of the Noumea Convention . Secondly. even after the French statements mentioned above. however. What do they mean by saying ͞possession of nuclear weapons not per se illegal. on the one hand from the conditions in which France has conducted underground nuclear tests since 1974. ͞mankind continue to be under the protection of public international law. It is true that France has not recognized that it is bound by any rule of international law to terminate its tests. Neither is the question of form decisive. To do this. The Court observes that it has already had occasion to indicate that questions "framed in terms of law and rais[ing] problems of international law . The Court must. the Applicant. the unilateral undertaking resulting from them cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. The first element concerns the courses of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment.Judge Weeramantry͛s dissent (Sir͛s favorite ICJ judge): Non-binding instruments can still have binding effect if they are statements of customary norms. since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and rules of international law.Case of the underground nuclear test (sequel of the previous case). .Final catch-all provision of the Hague Convention: Marten͛s clause: In default of specific treaty or legal basis. the Court did not exclude a special procedure for access to it (unlike those mentioned in the Court's Statute. The Court handed down its decision that New Zealand's Request for an Examination of the Situation in accordance with Paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand v. they must be held to constitute an engagement of the French State. made on 21 August 1995.any more than of the arguments derived by France from the conduct of the New Zealand Government since 1974. . Having regard to their intention and to the circumstances in which they were made. France has conveyed to the world at large. interpret them and apply them to the threat or use of nuclear weapons. public conscience and laws of humanity. In the Court's view that question has two elements. to be questions of a legal character". In the present case. [and] appear . the possibility of further atmospheric tests has been left open. However.United Nations General Assembly." Consequently. The fact that this question Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. It finds that the question put to the Court by the General Assembly is indeed a legal one. and on the other from the development of international law in recent decades . It finally observes that its Order is without prejudice to the obligations of States to respect and protect the natural environment. It is not possible for the Court now to take into consideration questions relating to underground nuclear tests.͟ Sir Roque says: How can they say that it͛s not public health issues? This is the second most notorious ICJ decision. in its view. the Court must identify the existing principles and rules. its intention effectively to terminate its atmospheric tests. France) Case (1995) . interpretation or revision. It may be said that the states don͛t like. Solomon Islands. . "does not fall within the provisions of the said paragraph 63 and must consequently be dismissed. but this does not affect the legal consequences of the statements in question. or a request for . . has stated that. which would have been open to the Applicant in any event).and particularly the conclusion. and that the Court cannot. It was bound to assume that other States might take note of these statements and rely on their being effective. as the basis of that Judgment was France's undertaking not to conduct any further atmospheric nuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have affected it. It has probative values. The intention of being bound is to be ascertained by an interpretation of the act.

it emerges from these instruments that: (a) a number of States have undertaken not to use nuclear weapons in specific zones (Latin America. if it is to be lawful. The applicable law: UN charter. The entitlement to resort to self-defence under Article 51 is subject to the conditions of necessity and proportionality. International customary and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances. whereby the Security Council may take military enforcement measures in conformity with Chapter VII of the Charter. deployment and testing of nuclear weapons. Necessity & proportionality. and (c) these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties or from the Security Council. as. The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. however. the Charter recognizes the inherent right of individual or collective self-defence if an armed attack occurs. they have not resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons. And the Court notes that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionality.the threat to use such force will likewise be illegal. As to the treaties of Tlatelolco and Rarotonga and their Protocols. The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances. and also the declarations made in connection with the indefinite extension of the Treaty on the NonProliferation of Nuclear Weapons. in the nature of things. In short. In the light of the foregoing the Court concludes that the most directly relevant applicable law governing the question of which it was seized. the South Pacific) or against certain other States (non-nuclear-weapon States which are parties to the Treaty on the Non-Proliferation of Nuclear Weapons). in the last two decades. The Charter neither expressly prohibits. on the contrary.for whatever reason . Cannot determine WON there͛s opinio juris. But at the same time. of the Charter depends upon various factors. paragraph 4. the use of any specific weapon. They apply to any use of force. For the rest. also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law. is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. without specifically addressing their threat or use. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but. in order to be lawful. Rules on the lawfulness or unlawfulness of nuclear weapons as such. The Court notes that the treaties dealing exclusively with acquisition. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua: "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it. together with any specific treaties on nuclear weapons that the Court might determine to be relevant. certainly point to an increasing concern in the international community with these weapons. no State . The Court then addresses the question of the legality or illegality of recourse to nuclear weapons in the light of the provisions of the Charter relating to the threat or use of force. is the case with so many questions which arise in international life. The Court then turns to an examination of customary international law to determine whether a prohibition of the threat or use of nuclear weapons as such flows . Provisions of the charter relating to the threat or use of force: not weapon specific. and their ability to cause damage to generations to come.UP Law B2009 Reviewer (Karichi Edition)   Page 9 of 130 also has political aspects.suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal. a use of force that is proportionate under the law of selfdefence. In Article 2. This prohibition of the use of force is to be considered in the light of other relevant provisions of the Charter. particular treaties. The notions of "threat" and "use" of force under Article 2. the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Geneva Protocol. nor permits. their capacity to cause untold human suffering. a rule well established in customary international law". paragraph 4. it is imperative for it to take account of the unique characteristics of nuclear weapons. is formulated in terms of prohibition. of the Charter stand together in the sense that if the use of force itself in a given case is illegal . and observes that. A further lawful use of force is envisaged in Article 42. Whether a signaled intention to use force if certain events occur is or is not a "threat" within Article 2. of the Charter the use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is prohibited. IHL. does not suffice to deprive it of its character as a "legal question" and to "deprive the Court of a competence expressly conferred on it by its Statute". Nor. In order to lessen or eliminate the risk of unlawful attack. including nuclear weapons. No treaty which expressly prohibits nukes. and in particular their destructive capacity. States sometimes signal that they possess certain weapons to use in selfdefence against any State violating their territorial integrity or political independence. is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities. possession. although. It concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons. paragraph 4. in particular humanitarian law. manufacture. Nor are the political nature of the motives which may be said to have inspired the request or the political implications that the opinion given might have of relevance in the establishment of the Court's jurisdiction to give such an opinion. must. But the Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction. the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. a great many negotiations have been conducted regarding nuclear weapons. the nuclear-weapon States have reserved the right to use nuclear weapons in certain circumstances. (b) nevertheless. even within this framework. These provisions do not refer to specific weapons. regardless of the weapons employed.whether or not it defended the policy of deterrence . but that they do not constitute such a prohibition by themselves. in particular those of the exercise of legitimate self-defense. The Court notes that in order correctly to apply to the present case the Charter law on the use of force and the law applicable in armed conflict. In Article 51. It does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of certain provisions of the Second Hague Declaration of 1899. Unique characteristics of nuclear weapons: highly destructive.

Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons. in view of the present state of international law viewed as a whole. which is of a fundamental character similar to that of the humanitarian principles and rules. and the still strong adherence to the doctrine of deterrence (in which the right to use those weapons in the exercise of the right to self-defence against an armed attack threatening the vital security interests of the State is reserved) on the other. and there is a qualitative as well as quantitative difference between nuclear weapons and all conventional arms. Given the eminently difficult issues that arise in applying the law on the use of force and above all the law applicable in armed conflict to nuclear weapons. could never be compatible with the principles and rules of humanitarian law and is therefore prohibited. The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict. The principle of neutrality. which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. After sketching the historical development of the body of rules which originally were called "laws and customs of war" and later came to be termed "international humanitarian law". by a large majority. in accordance with Article 51 of the Charter. in which its very survival would be at stake.   Page 10 of 130 It notes that the Members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the expression of an opinio juris. as well as the fact that the denunciation clauses that existed in the codification instruments have never been used. Nor can it ignore the practice referred to as "policy of deterrence". as lex lata. and thus its right to resort to self-defence. has not been advocated in the present proceedings. the Court cannot lose sight of the fundamental right of every State to survival. those of the past. Obligation to negotiate nuclear disarmament. the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict. Furthermore. of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand.UP Law B2009 Reviewer (Karichi Edition) from that source of law. In application of that second principle. According to one point of view. of Additional Protocol I of 1977. According to the second principle. it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. from the principles of humanity and from the dictates of public conscience. the use of such weapons in fact seems scarcely reconcilable with respect for the requirements of the law applicable in armed conflict. have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognized humanitarian principles. civilians and combatants remain under the protection and authority of the principles of international law derived from established custom. because of the newness of the latter. those of the present and those of the future. Conclusions to be drawn from the applicability of international humanitarian law and the principle of neutrality. The emergence. of resolutions recalling the content of resolution 1653 (XVI). These rules indicate the normal conduct and behavior expected of States. is applicable (subject to the relevant provisions of the United Nations Charter). Turning to the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons. States do not have unlimited freedom of choice of means in the weapons they use. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris. to which the Court has referred above. A similar view has been expressed with respect to the effects of the principle of neutrality. that principle has therefore been considered by some to rule out the use of a weapon the effects of which simply cannot be contained within the territories of the contending States. the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of selfdefence. in view of the necessarily indiscriminate consequences of their use. paragraph 2. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry. Like the principles and rules of humanitarian law. does not necessarily mean that such recourse is as such prohibited. whatever type of weapons might be used. the Court notes that nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence. which reads as follows: "In cases not covered by this Protocol or by other international agreements. In the long run. in view of the unique characteristics of nuclear weapons. reveals the desire of a very large section of the international community to take. International humanitarian law. seen in a broader context. the Court observes that the cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. in the Court's view. a significant step forward along the road to complete nuclear disarmament. The Court observes that. States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. and with it the stability of the international order . international law." The extensive codification of humanitarian law and the extent of the accession to the resultant treaties. that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance. the Conferences of 1949 and 1974-1977 left these weapons aside. whatever its content. to all international armed conflict. Martens clause. It points out that the adoption each year by the General Assembly. Another view holds that recourse to nuclear weapons. the Court considers that it needs to examine one further aspect of the question before it. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants. and of the elements of fact at its disposal. by a specific and express prohibition of the use of nuclear weapons. However. Accordingly. international law leaves no doubt that the principle of neutrality. to which an appreciable section of the international community adhered for many years. It considers nevertheless. when its survival is at stake. The Court also refers to the Martens Clause. and requesting the member States to conclude a convention prohibiting the use of nuclear weapons in any circumstance. A modern version of that clause is to be found in Article 1. as examined by the Court. it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons.

it had no binding character. the Court nevertheless concluded that. Although because of the development in science and technology. they must be held to have acquiesced. the court concluded that Thailand had accepted the The Paquete Habana (The Paquete Habana and The Lola) (1900) Doctrines . It was clear from the record.Estoppel and acquiescence are general principles of law which can be a basis of international law. who said nothing. it would have been natural for Thailand to raise the matter: she did not do so. however. necessitates the co-operation of all States. either then or for many years. . While there could be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector. Preah Vihear Temple Case (1962) .UP Law B2009 Reviewer (Karichi Edition)   Page 11 of 130 which it is intended to govern. what took hundreds of years before. the Court noted. Moreover. By an ancient usage among civilized nations. in consequence. in other words. Subsidiary means as evidence of the norm The Court held that the capture of the fishing vessel was unlawful and without probable cause. . being maritime nations. The natural inference was that she had accepted the frontier at Preah Vihear as it was drawn on the map. The Court ordered that the decree of the District Court be reversed. coast fishing vessels. though bilateral.Techniques used by the Court to establish the norm 1. pursuing their vocation of catching and bringing in fresh fish. they could not now plead any error vitiating the reality of their consent. and of the mutual convenience of belligerent states which rely on the livelihood of fishing.But is the passage of time important? No.nuclear disarmament in all its aspects . Customary law 2. especially nuclear disarmament. Siam failed to react. from capture as prize of war. stelae. What are the elements of estoppel? [1] act or representation [2] reliance [3] damage The Court held that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and. Also. beginning centuries ago.Exempting of fishing vessels was founded on considerations of humanity to a poor and industrious order of men. . that the maps were communicated to the Siamese Government as purporting to represent the outcome of the work of delimitation. which confirmed the existing frontiers. since the date of the occupation of the Temple by Thailand in 1954. . be restored to the claimant. The Court also noted cases in the past in different jurisdictions which decided the issue in the same light. The technique used by the court to establish the norm is through customary law and subsidiary means as evidence of the norm. the pursuit of negotiations on the matter in good faith. namely. The maps were moreover communicated to the Siamese members of the Mixed Commission. when in 1930 Prince Damrong. on the ground that. and the proceeds of the sale of the vessel. which had ceased to function some months before its production. Application of doctrines (general principles of law) of estoppel & acquiescence. together with the proceeds of any sale of her cargo.by adopting a particular course of conduct. and in 1947 in Washington before the Franco-Siamese Conciliation Commission. In these circumstances. could now become customary norm overnight. are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons. Indeed. the Court appreciates the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament. Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. stationed by her at the Temple. the signatories. to the Siamese Minister of the Interior. became source of customary norm because. in its inception. If the Siamese authorities accepted the Annex I map without investigation. Also. have been recognized as exempt. and gradually ripening into a rule of international law. or other guards or keepers. or. irrespective of its correspondence with the watershed line.Why are the exempt from being taken as price of war? Because if they are not protected. From these facts. fishing vessels are exempt from capture as a prize of war. Prussia. as a rule of international law. .Thailand and Cambodia are again on the verge of war because of this. The Siamese Government and later the Thai Government had raised no query about the Annex I map prior to its negotiations with Cambodia in Bangkok in 1958. Ancient usage ripened to rule of international law. there were only very few countries.International Humanitarian Law is not only customary in nature but also jus cogens. As long as there is widespread and virtually uniform state practice. can be considered as specially affected states. that Thailand was under an obligation to withdraw any military or police forces. no one would engage in fishing and that would deprive civilian population with source of food. It also found that Thailand was under an obligation to restore to Cambodia any sculptures.These principles are exactly the same ones found in the Civil Code. Sir Roque says: . The map was never formally approved by the Mixed Commission. during the period they were signed. sandstone model and ancient pottery which might. the vast majority of the international community. . or in its vicinity on Cambodian territory. on a visit to the Temple. the obligation involved here is an obligation to achieve a precise result . with damages and costs. Holland. Moreover. It is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result. fragments of monuments.Ancient usage has ripened into international law. have been removed from the Temple or the Temple area by the Thai authorities. any realistic search for general and complete disarmament. was officially received there by the French Resident for the adjoining Cambodian province. legal writings and treatieses of legal experts and luminaries which provide for the exemption of fishing/commercial vessels. . The legal import of that obligation goes beyond that of a mere obligation of conduct. Sir Roque says: . with their cargoes and crews. since there was no reaction on the part of the Siamese authorities. and the US. The Court discussed the history of the custom exempting coastal fishers from capture beginning with King Henry IV͛s orders to his admirals in 1403 to the relevant practices of France. in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties. This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons.The treaties which established the EXEMPTION OF FISHING VESSELS.

covered by its power of regulation and control of the right of passage of Portugal. and subject to the regulation and control of India. armed police. Portugal claims that there was a local custom in its favor with the right of passage over the territory. It was in support of this contention that it invoked its right of passage and asked the Court to declare the existence of that right. civil officials and goods in general. The first relates to the Albanian Government's attitude before and after the catastrophe. armed police. The practice that was established shows that. civil officials and goods in general. There is no need to resort to general international custom nor to general principles of law in disposing of such cases when there is an established practice between the parties. struck another mine and was also seriously damaged. it was well understood that passage could take place only by permission of the British authorities. Passage Case (Portugal v. and arms and ammunition. for the exercise of its sovereignty over the enclaves. as in the case of armed forces. when the Albanian Government had become fully aware of the . the acceptance of the Annex I map caused it to enter the treaty settlement. as claimed by Portugal. In 1954.UP Law B2009 Reviewer (Karichi Edition)   Page 12 of 130 Annex I map. This situation continued during the post-British period.Aveli. in that ease. Sir Roque says: This case highlights the customary nature of IHL. the Court is unable to hold that India͛s refusal of passage to the proposed delegation and its refusal of visas to Portuguese nationals of European origin and to native Indian Portuguese in the employ of the Portuguese Government was action contrary to its obligation resulting from Portugal͛s right of passage. Furthermore. There was no right of passage in favour of Portugal involving a correlative obligation on India has been established in respect of armed forces. with regard to these categories. India) Doctrine Constant and uniform practice between states is also a source of international law. The other destroyer was sent to her assistance and. Portugal͛s claim of a right of passage is subject to full recognition and exercise of Indian sovereignty over the intervening territory and without any immunity in favour of Portugal. This being so. Even if there were any doubt in this connection. Portugal has been passing through Indian territory through the years in order to the enclaves of Dadra and Nagar. Daman and Diu. Portugal claims that the denial of passage by India was done due to India͛s open campaign to annex Portugese territories. No breach of international obligation when custom was subject to regulation of the other party. The State which is the victim must. Practice was accepted as law by the Parties and has given rise to a right and a correlative obligation. in addition to its littoral territory. the Court considered that the interpretation to be given now would be the same. With regard to private persons. This practice having continued over a period extending beyond a century and a quarter unaffected by the change of regime in respect of the intervening territory which occurred when India became independent. in respect of private persons. the Parties had at that time adopted an interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and. There was a clear distinction between the practice permitting free passage of private persons. Allowance for admission of circumstantial evidence. two parcels of territory completely surrounded by the territory of India which constitute enclaves: Dadra and Nagar-Aveli. to the extent necessary. linked together and leading logically to a single conclusion. There is no reason why long continued practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States. A British destroyer vessel struck a mine and was gravely damaged while passing through the Corfu Channel in the territorial waters of Albania. this vigilance sometimes going so far as to involve the use of force: all of which render the assertion of ignorance a priori improbable. The course of dealings established between the Portuguese and the British authorities with respect to the passage of these categories excludes the existence of any such right. as there was no reason to think that the Parties had attached any special importance to the line of the watershed as such. Portugal has a territory in the Indian Peninsula made up of the three districts of Goa. India͛s refusal of passage in those cases was. be allowed a more liberal recourse to inferences of fact and circumstantial evidence. civil officials and goods in general. have to be considered. However in 1954. a general principle of law. Thailand was precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. In view of the tension then prevailing in intervening Indian territory. it is the eve of the creation of these obstacles that must be selected as the starting point which to ascertain whether or not Portugal possessed such a right. and the practice requiring previous authorization. which corroborate one another. which has arisen between India and Portugal with regard to obstacles placed by India in the way of passage. Corfu Channel Case (1949) Doctrine Remedial law principles such as circumstantial evidence can actually be a basis for finding factual disputes. The dispute arises at the time of the creation of the obstacles. while towing her. The laying of the mines took place in a period in which it had shown its intention to keep a jealous watch on its territorial waters and in which it was requiring prior authorization before they were entered. and arms and ammunition. as compared with the overriding importance of a final regulation of their own frontiers. Moreover. The district of Daman comprises. In the present case two series of facts. there existed during the British and post-British. in the circumstances. a right of passage over intervening Indian territory between coastal Daman and the enclaves and between the enclaves. the Government of India prevented Portugal from exercising this right of passage. such indirect evidence must be regarded as of especial weight when based on a series of facts. The Court says that it is difficult to see why the number of States between which a local custom may be established on the basis of long practice must necessarily be larger than two. The question was put to the Court in respect of the dispute. Existence of local custom between two states. The Court held that Albania had breached its obligation under international law to notify states regarding the danger of passing through a body of water due to presence of mines in its territorial sea. Right of passage. periods a constant and uniform practice allowing free passage between Daman and the enclaves. The exclusive control exercised by a State within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law.

then reparation. as applied in this case. wipe-out all the consequences of the illegal act and re-establish the situation which would.such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. the award. it can only afford a convenient scale for the calculation of the reparation due to the State. Reparation.UP Law B2009 Reviewer (Karichi Edition)   Page 13 of 130 existence of a minefield.What is the general principle of law in the case? Reparation for the taking of property requires compensation. they are not disputed. the mine-laying operations must have been noticed by these coastguards. defined. or if this is not possible. Germany brought action in behalf of the companies against Poland for the taking of the companies in violation of the Geneva Conventions. This conclusion particularly applies as regards the Geneva Convention. nothing was attempted by Albania to prevent the disaster. rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed. It is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law. would have been a very serious violation of her sovereignty.When an expropriation is legal. she did not notify shipping of the existence of the minefield. Reparation = indemnity for damages caused. in all probability. desired the circumstances in which it was effected to remain secret. Sir Roque says: . but not against the laying of the mines. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on October 22nd of the danger to which they were exposed. Such an attitude could only be explained if the Albanian Government. as would be required by international law. if effected without her consent. In fact. only the value of property. must be taken into account. State͛s espousal of claims on behalf of its nationals. The rules of law governing the reparation are the rules of international law in force between the two States concerned. must be added that of compensating loss sustained as the result of the seizure.but to that total only . as far as possible. . International law does not prevent one State from granting to another the right to have recourse to international arbitral tribunals in order to obtain the direct award to nationals of the latter State of compensation for damage suffered by them as a result of infractions of international law by the first State. The damage suffered is equivalent to the total value . the channel is easily watched: it is dominated by heights offering excellent observation points. and these grave omissions involve her international responsibility. . if this be not possible.is that reparation must. The German empire had a contract with a company. to pay its value at the time of the indemnification. and she did not undertake any of the measures of judicial investigation which would seem to be incumbent on her in such a case. Subsequently. remedy is compensation to such amount as to eliminate all effects of illegal taking. If restoration is not possible. thus. Geographically. which value is designed to take the place of restitution which has become impossible. In regard to that point. it protested strongly against the activity of the British Fleet. or the damage done to whom is to serve as a means of gauging the reparation claimed. causing the end of the contract between Germany and the companies. when there is an unlawful taking. The essential principle contained in the actual notion of an illegal act . Poland) (1928) Doctrines . though this act. Reparation is due when there is a breach of an obligation. The methodical and well-thought-out laying of the mines compelled the minelayers to remain from two to two-and-a-half hours in the waters. In estimating the damage caused by an unlawful act. To this obligation. if a normal look-out was kept and if the lookouts were equipped with binoculars. the amount of reparation includes the intangible assets (loss of profits). Restitution in kind. From all the facts and observations mentioned above. and it runs close to the coast. The dispossession of an industrial undertaking (which is prohibited by the Geneva Convention) then involves the obligation to restore the undertaking and. Upper Silesia.of the property. Poland and Germany signed a Convention concerning the Upper Silesia of Geneva (Geneva Convention). the naval experts appointed by the Court reported. under normal weather conditions for this area. rights and interests of this Company in that undertaking. As regards the obligations resulting for her from this knowledge. that they considered it to be indisputable that. A Polish was then delegated with the full powers to take charge of the factory. where the company undertook to establish for the Reich and forthwith to begin the construction of a nitrate factory at Chorzow. the amount of the reparation is the logistical value of the property taken at the time of the expropriation. the object of which is to provide for the maintenance of economic life in Upper Silesia on the basis of respect for the status quo. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State.Taking of property requires compensation.The reparation of a wrong may consist in an indemnity corresponding to the damages which the nationals of the injured state have suffered as a result of the act which is contrary to international law. if need be. The reparation due by one State to another does not however change its character by reason of the fact that it takes the form of an indemnity for the calculation of which the damage suffered by a private person is taken as the measure. it would not be in conformity with the principles of law or with the wish of the Chorzow Factory Case (Germany v. When restitution not possible. the Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of Albania. The impossibility of restoring the Chorzów factory could therefore have no other effect but that of substituting payment of the value of the undertaking for restitution. while knowing of the mine laying. after enquiry and investigation on the spot. . However. payment of a sum corresponding to the value which a restitution in kind would bear. in virtue of the general principles of international law.a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals . The second series of facts relates to the possibility of observing the mine laying from the Albanian coast. and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage.Reparation is the indispensable complement of a failure to apply a convention. of damages for loss sustained which would not be covered by restitution in kind or payment in place of it . have existed if that act had not been committed. Reparation. without deducting liabilities. .

It formed a number of subsidiary companies. the company was declared bankrupt. Libya (1978) Doctrine .   Page 14 of 130 (Some notes on the case from BP v. but whether in case of expropriation. [Case was about corporate personalities (Canada) vs. Municipal law applied to international law. Sir Roque says: . Barcelona Traction. In the field of diplomatic protection. the act complained of must be aimed at the direct rights of the shareholder as such (which was not the case here since the Belgian Government had itself admitted that it had not based its claim on an infringement of the direct rights of the shareholders). An act infringing only the company's rights did not involve responsibility towards the shareholders. it could not be contended that the corporate entity of the company had ceased to exist or that it had lost its capacity to take corporate action. international law was in continuous evolution and was called upon to recognize institutions of municipal law. such as a CORPORATION. such investments being part of a State's national economic resources. and its Canadian nationality had received general recognition. It is generally recommendatory but may serve as an indicia of norm. No rule of international law expressly conferred such a right on the shareholder's national State. The servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil war. And no instrument of such a kind was in force between Belgium and Spain. it nonetheless retained its capacity to do so. as recognized in another case). was incorporated in Toronto (Canada) for the purpose of creating and developing an electric power production and distribution system in Catalonia (Spain). A wrong done to the company frequently caused prejudice to its shareholders. Texaco v. An injury to the shareholder's interests resulting from an injury to the rights of the company was insufficient to found a claim.Where one of the parties involved is a municipal entity. . of which some had their registered offices in Canada and the others in Spain. But. Will it matter whether Pasay RTC will have jurisdiction or the ICJ? Pasay will naturally have stronger influence to co-Filipinos. Light and Power Company Case (Belgium v. As regards the first of these possibilities. Libya: The Chorzow Factory case is the leading case on the proposition that restitutio in integrum is a recognized remedy of International Law. State Practice + Opinio Juris still has to be proved. International law had to refer to those rules generally accepted by municipal legal systems. reference may be made to relevant principles of municipal law. However. Belgium filed an application with the ICJ against the Spanish government seeking reparation of damages claimed to have been caused to the Belgian national shareholders of the company. Those PIL professors don͛t know a thing about bonds and shares!!! The BTLPC.That a corporation has a juridical personality distinct from its shareholders is a general principle of law. in the present state of affairs. even if their interests were affected.UP Law B2009 Reviewer (Karichi Edition) Parties to infer from that agreement that the question of compensation must henceforth be dealt with as though an expropriation properly so called was involved. After that war the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds.In determining the binding nature of GA resolutions. in the present case.) General Rule: State of the company can seek redress. were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment. Eventually. and anything the Court stated on the availability of that remedy is obiter. Application of . Exceptional circumstances. the court looked to the voting patterns of the participant states. Two situations needed to be studied: (a) the case of the company having ceased to exist. In order for the situation to be different. The Court considered whether there might not be.The method of looking into voting patterns and employing the ͞specially affected͟ states doctrine do not fully and totally assess WON a resolution is binding.Doctrine of specially affected states: Sir Roque says: . such a right could only result from a treaty or special agreement. but this did not imply that both were entitled to claim compensation.What is the other gen principle of law in this case? Evidence also forms part of general principle of law and therefore a source of IL. Sir does not approve of this method. Some years after the first world war Barcelona Traction share capital came to be very largely held by Belgian nationals. the Court observed that whilst Barcelona Traction had lost all its assets in Spain and been placed in receivership in Canada. Whatever the reasons for the Canadian Government's change of attitude. it was to the latter that he had to look to institute appropriate action. it was not disputed that the company had been incorporated in Canada and had its registered office in that country. the concept of the company was founded on a firm distinction between the rights of the company and those of the shareholder. It had been maintained that a State could make a claim when investments by its nationals abroad. The Canadian Government had exercised the protection of Barcelona Traction for a number of years. which law prevails (domestic or industrial)? Why will it matter to figure out? Imagine when a private airport owned by a German is expropriated by Philippine government. Whenever a shareholder's interests were harmed by an act done to the company. . So far as the second possibility was concerned. and (b) the case of the protecting State of the company lacking capacity to take action. Spain) (1970) Doctrines . shareholders (Belgium) Belgium has no jus standi] . the judgment is not authority on the point. that fact could not constitute a justification for the exercise of diplomatic protection by another government. Only the company. which the Spanish Government had not questioned. special circumstances for which the general rule might not take effect. could take action in respect of matters that were of a corporate character. If at a certain point the Canadian Government ceased to act on behalf of Barcelona Traction. In municipal law. for the Claimant (the German Government) did not claim restitutio in integrum. which was endowed with legal personality.The issue here is no longer whether Libya can nationalize (because it could. Where it was a question of an unlawful act committed against a company representing foreign capital. the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress.

with respect to nationalization and compensation the use of the rules in force in the nationalizing State. they do not create a custom but confirm one by formulating it and specifying its scope. assets and shares in the operations conducted in the said area. Clause 28 of the concession agreement provides that should dispute arise. resolutions were invoked by both parties. their powers and jurisdiction to do so rest carefully on the parties͛ consent. rights. should apply. i. Indeed. The area in which BP was allowed to operate was called Concession 65. general principles of law should apply to resolve the question. that in the absence of principles common to the Libyan and International law. interests and property of Texaco in Libya granted to them jointly under 14 Deeds of Concession. Resolutions in order to be binding must be accepted by the members especially those specially affected. Libya Doctrine In determining the binding nature of GA resolutions. the applicable law shall be the principles of the law of Libya common to the principles of international law. Examined in the light of general principles of law.A. thereby making it possible to determine whether or not one is confronted with a legal rule. BP v. Sir Roque says: . on the occasion of the vote on a resolution finding the existence of a customary rule. but whether in case of expropriation. restoring to the State ownership of all properties. will resort be made to general principles of law. Legal value of resolutions to be determined on the basis of the circumstances under which they were adopted & analysis of the principles they state. which law prevails (domestic or industrial)? Why will it matter to figure out? Imagine when a private airport owned by a German is expropriated by Philippine government. Investor is favored in international law. processing and export of petroleum. State Practice + Opinio Juris still has to be proved. the rejection of these same principles implies that they consider them as being contra legem (against the law). (b) by adopting the measures of nationalization. were supported by a majority of States but not by any of the developed countries with market economies which carry on the largest part of international trade. the Tribunal notes that only Resolution 1803 (XVII) of 14 December 1962 was supported by a majority of Member States representing all of the various groups. in December 1971 passed the BP Nationalization Law. The Arabian Gulf Exploration Company had taken over Concession 65. The legal value of the resolutions which are relevant to the present case can be determined on the basis of circumstances under which they were adopted (ex. On the basis of the circumstances of adoption mentioned above and by expressing an opinio juris communis. As a result of the Nationalization Law (which was rapidly implemented) BP͛s operations in Concession 65 were brought to a complete halt and its staff were immediately excluded from the premises and facilities. the States concerned clearly express their views. it appears essential to this Tribunal to distinguish between those provisions stating the existence of a right on which the generality of the States has expressed agreement and those provisions introducing new principles which were rejected by certain representative groups of States and having nothing more than a de lege ferenda (what the law ought to be). which proclaim rules recognized by the community of nations. The Sole Arbitrator held that (a) the Deeds of Concession are binding on the parties.. Distinguish between those stating an existing right & those introducing new principles. Libya argues that with respect to nationalization. The appraisal of the legal value on the basis of the principles stated. Will it matter whether Pasay RTC will have jurisdiction or the ICJ? Pasay will naturally have stronger influence to co-Filipinos. Sir does not approve of this method. The Companies requested arbitration.e. With respect to the former. The Companies objected to the decrees and claimed that such action by the Libyan Government violated the terms and conditions of their Deeds of Concession. for . By contrast. As has been noted by Ambassador Castaneda. general principles of law. the Arabian Gulf Exploration Company. Thus the court had to look into the legal value and validity of such resolutions and their binding effect to the parties. the other Resolutions mentioned. In this respect. Applicable law in the case. they have a declaratory nature of noting what does exist" Resolution 1803 reflects the state of customary law ʹ based on adoption of majority of states & opinio juris. Several UN G. "[such resolutions] do not create the law.UP Law B2009 Reviewer (Karichi Edition)   Page 15 of 130 local laws is beneficial for the state. Application of local laws is beneficial for the state. However. the absence of any binding force of the resolutions of the General Assembly of the United Nations implies that such resolutions must be accepted by the members of the United Nations in order to be legally binding. Specific Performance not applicable here. the court looked to the voting patterns of the participant states.The issue here is no longer whether Libya can nationalize (because it could. BP Exploration Company (BP) had a contractual agreement with the Government of Libya (Libya). value only in the eyes of the States which have adopted them. and then transferring these to a new company. the Libyan Government breached its obligations arising under the Deeds of Concession and (c) the Libyan Government is legally bound to perform the Deeds of Concession and to give them their full force and effect. With respect to the first point. municipal law should govern and not international law. Resolution 1803 (XVII) seems to this Tribunal to reflect the state of customary law existing in this field. and in particular those referred to in the Libyan Memorandum. and only if such common principles do not exist with respect to a particular matter. while arbitral tribunals can declare awards which include the declaration of specific performance against a recalcitrant party.The method of looking into voting patterns and employing the ͞specially affected͟ states doctrine do not fully and totally assess WON a resolution is binding. voting pattern) and by analysis of the principles which they state. In the decisions of tribunals. . as recognized in another case). In the event that international law and Libyan law conflict on the issue. The consensus by a majority of States belonging to the various representative groups indicates without the slightest doubt universal recognition of the rules therein incorporated. the legal systems analyzed here offer different solutions to the problem. which allowed BP to operate in Libya for the extraction. but all this in conformity with international law. The governing system of law is what the clause expressly provides. as far as the others are concerned. Libya. Investor is favored in international law. including those that may have been applied by international tribunals. It is therefore NOT POSSIBLE to hold that under general principles of law an agreement fundamentally abrogated by one party continues in force and is to be specifically performed indefinitely until the innocent party terminates it. Libya promulgated decrees purporting to nationalize all of the rights. Thus these municipal systems of law profess allegiance to two divergent principles on the question. which nationalized the operations of BP in Concession 65.

it is only when damages are inadequate that specific performance is resorted to. 4. and to governing principles of English and American contract law. Danish law. Furthermore. while it has been claimed. 2. this case is different because one of the parties is a state. BP is entitled to damages arising from Libya͛s wrongful acts. Step three: Look at the general principles of international law (municipal legal principles existing in different legal systems). if awarded now and the contract would still be allowed to exist indefinitely.specific performance is the normal remedy and damages are resorted to only when it is not possible. without vote. 32: Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations. a contractual undertaking as previous cases. Sir Roque says: This case also involves a concession contract. the obligations of pacific settlement provided in the present Charter. specific performance and restituto in integrum is not available. are able and willing to carry out these obligations. evidenced by state practice and the law of treaties. English law ʹ the norm is damages and specific performance is the exception. However. An obligation must be performed. the concessionaire is not entitled to call for specific performance by the Government of the agreement and reinstatement of his contractual rights. As a consequence of which. ART. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. German law. The breach because of the Nationalization Law is made the basis of the amount of damages in favor of BP. ACTORS IN INTERNATIONAL LAW Art. it is impractical to order specific performance necause cannot compel a state because there is no coercive apparatus in international law. Under the applicable systems of law. The concept has rather been employed at times as a principle for assessing the amount of damages due for breach of an international obligation. A rule of reason therefore dictates a result which conforms to international law.UP Law B2009 Reviewer (Karichi Edition)   Page 16 of 130 under English and American law the sole remedy is damages and in others specific performance does not lie against the State. the amount would be so great it would be absurd. Payment of Damages. if it is a party to a dispute under consideration by the Security Council. and d) capacity to enter into relations with the other states. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and. however. The principle of compensation is also recognized in the BP Nationalization Law. b) a defined territory. (The principles of these legal systems are principles of ordinary commercial law. no tribunal has ever prescribed the remedy with regard to such property or parties as in these proceedings. BP cannot ask for specific performance nor to be declared owner of any oil extracted in Libya. it is possible. III. Restitutio in integrum not applicable again. Montevideo Convention on the Rights and Duties of States The state as a person of international law should possess the following qualifications: a) a permanent population. and there is no uniform principle which provides that specific performance is a remedy available at the option of an innocent party. the norm is the payment of damages. Take note. ART. Here. that there does not exist a uniform general principle of law that an agreement continues in effect after being repudiated by one party but not the other. Under Public International Law. Customary international law (particularly the practice of international tribunals) does not provide explicit support for the proposition that specific performance and restitution in integrum are remedies available at the option of a party suffering a breach by a contracting party. ART. it was not the LEGAL IMPOSSIBILITY but IMPRACTICABILITY that restitution cannot be ordered. 35 (2): A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance. UN Charter 1. which has the effect of turning back the clock would upset the current situation too profoundly and would have unforeseeable practical consequences. ART. 1. a State (Libya) is the respondent and normally. The impossibility of restitution and specific performance. 93(2): A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on . such an action. c) government. shall be invited to participate. in the discussion relating to the dispute. in the judgment of the Organization. for the purposes of the dispute. Step two: Look at Public international law (Vienna Convention on the law of Treaties). The law between the parties must be complied with in good faith. The conclusion is thus: when by exercise of sovereign power a State committed a fundamental breach of a concession agreement by repudiating it through a nationalization of the enterprise and its assets in a manner which implies finality. mutuality. The Security Council shall lay down such conditions as it deems just for the participation of a state which is not a Member of the United Nations. General principles of law: The General principles of a contract such as autonomy. The framework of the Tribunal with regards entitlement to specific performance. Vienna Convention does not provide for specific rules on remedies. the remedies of restitution in king and specific performance are unavailable against governmental authorities. but his sole remedy is an action for damages. It is clear then. Although as a matter of law. There are no certain conclusions as to the position of Libyan law on the subject matter of the dispute.same as German. but in this case. especially in the form of physical restoration. restitution in integrum and damages Step one: Look at the principles of Libyan law common to international law. here. this is the only decision that the restituto in integrum is impossible. The claim would not even be realistic. As to restitutio in integrum. consensuality and obligatory are observed.

be submitted to a tribunal. request for an enquiry. the UN must be deemed to have those powers which. in the present state of the law as to international jurisdiction. the UN is invoking its own right. To illustrate. Fifty States. Whereas a State possesses the totality of international rights and duties recognized by international law. and to the interests of which it is the guardian. UN Capacity to bring claims for damage caused to a victim. and is in fact exercising and enjoying. In particular. The measure of the reparation should depend upon the amount of the damage which the UN has suffered as the result of the wrongful act or omission of the defendant State and should be calculated in accordance with the rules of international law. ICJ Statute: 1. The capacity of the UN to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter. protest. the independent action of the UN itself. damage caused to the victim or to persons entitled through him. UN͛s international personality as evidenced by UN Charter. When the UN has sustained damage resulting from a breach by a Member of its international obligations.e. and by providing for the conclusion of agreements between the UN and its Members. had the power. has the United Nations. of certain obligations. Wherever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court. consequently. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State. This assurance is even more necessary when the agent is stateless. the presentation and the settlement of claims. Conventions to which the UN is a party-has confirmed this character of the UN. he should not have to rely on the protection of his own State. the right that the obligations due to it should be respected. to one in sympathy or not in sympathy with the mission of the agent-he should know that in the performance of his duties he is under the protection of the UN. subjects of international law. representing the vast majority of the members of the international community. in its claim for reparation. though not expressly provided in the Charter. the damage would include the reimbursement of any reasonable compensation which the UN had to pay to its agent or to persons entitled through him and the expenditure in replacing a dead or disabled agent engaged upon a distant mission. To ensure the independence of the agent. In the event of an affirmative reply on point I (b). it is essential that whether the agent belongs to a powerful or to a weak State. to its property and assets. he must feel that this protection is assured to him by the UN. It is clear that UN has the capacity to bring a claim for damage caused to the interests of the UN itself. subject to and in conformity with its Rules. ART 34. and both the direct subjects of international law. In order that the agent may perform his duties satisfactorily. Light and Power Company Case (1970) Reparations for Injuries Suffered in the Service of the UN (1949) Sir Roque says: The ICJ rejected the doctrine that only states are. The UN GA asked the ICJ for an advisory opinion submitting the following legal questions: 1. contrary to the principle applied by Article 100 of the Charter. functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. except with the consent of the States concerned. (b) to the victim or to persons entitled through him? 2. if need be. The Court. to one more affected or less affected by the complications of international life. and. 2. in detachment from its Members. The Charter does not expressly confer upon the UN the capacity to include. the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings. Competence to bring an international claim is. UN Capacity to bring claim against one of its members for breach of international obligations towards it. (i. similar in form. and cannot. the capacity to resort to the customary methods recognized by international law for the establishment. The UN was intended to exercise and enjoy. how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national? Capacity. 3. The UN Charter by giving the UN legal capacity and privileges and immunities in the territory of each of its Members. Such a claim takes the form of a claim between two political entities. and which is under a duty to remind them. negotiation. the capacity to bring an international claim against the responsible de jure or de facto government with a view of obtaining the reparation due in respect of the damage caused (a) to the United Nations. may request of public international organizations information relevant to cases before it. which occupies a position in certain respects . When it claims redress for a breach of these obligations. A State can bring an international claim against another State. or can be. Organization has a capacity to exercise functional protection of its agents. But under international law. and shall receive such information presented by such organizations on their own initiative. it is impossible to see how it can obtain reparation unless it possesses capacity to bring an international claim. Reparation guidelines. and that he may count on it. Capacity of a state.UP Law B2009 Reviewer (Karichi Edition)   Page 17 of 130 conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. And lastly. as an organization. the rights and duties of an entity such as the UN must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. equal in law. in Barcelona Traction. for those possessing it. his independence might well be compromised. It is dealt with by means of negotiation. to its administrative machine. and request for submission to an arbitral tribunal or to the Court in so far as this may be authorized by the Statute). Difference of rights possessed by a state and the UN. it is essential that in performing his duties he need not have to rely on any other protection than that of the UN (save of course for the more direct and immediate protection due from the State in whose territory he may be). UN Capacity to bring a claim against a defendant state which is not a member of the UN. practice and conventions. defined. Only states may be parties in cases before the Court. are conferred upon it by necessary implication as being essential to the performance of its duties. If he had to rely on that State.

from whom they have been unable to obtain satisfaction through the ordinary channels. by an ultra vires act of an agent. When the victim has a nationality. Article II par 2 empowers the General Assembly. specifically stated in Article 17. there is no rule of law which assigns priority to the one or to the other. may be described as pointing to the goal of international peace and secunty and friendly relations. cultural and humanitarian goals and respect for . Greece. as to third parties. because the question of nationality is not pertinent to the admissibility of the claim. the presumption is that such action is not ultra vires the Organization. as applied in this case. Expenditures must be tested by their relationship to the purposes of the United Nations in the sense that if an expenditure were made for a purpose which is not one of the purposes of the United Nations. exclusively. Purpose of the UN.UP Law B2009 Reviewer (Karichi Edition)   Page 18 of 130 conformity with international law. including situations resulting from a violation of the provisions of the present Charter setting forth the purposes and principles of the United Nations". but also to "approve" it. those amounts must be presumed to constitute "expenses of the Organization". that is. to promote and to maintain a peaceful settlement of the situation. But Greece took up Mavrommatis͛ case so it is now a dispute in international law. Certain Expenses of the UN (1962) The UN GA asked the ICJ for an advisory opinion "Do the resolutions authorized by the General Assembly to cover the costs of the UN operations in the Congo (ONUC) and of the operations of the UN Emergency Force in the Middle East (UNEF). "constitute 'expenses of the Organization' within the meaning of Article 17. social. defined. the General Assembly is also given the power to apportion the expenses among the Members and the exercise of the power of apportionment creates the obligation. in this case. economic. humanitarian and other purposes of the United Nations. If the Security Council adopted a resolution purportedly for the maintenance of international peace and security and if. in the first place at least. Greece has the right to ensure respect for rules of international law. Disputes. Acts of the UN. If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes. The third is the achievement of economic. the Secretary-General properly exercised the Mavrommatis Case (1924) This dispute relates to Palestine and Britain͛s wrongful refusal to recognize Mavrommatis͛ rights acquired under contracts for public works to be done in Palestine. Capacity of a state to bring claims from acts contrary to international law committed by another state. The fourth and last purpose is to be a center for harmonizing the actions of nations in the attainment of these common ends. the political. social. The Charter makes it abundantly clear. It does not matter whether or not the State to which the claim is addressed regards him as its own national. however. paragraph 2. When the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations. together with capacity to bring international claims. The powers of the UNSC and the UNGA. This being true. In such a case. So WON a dispute originates in a personal injury is irrelevant. As the United Nations Charter included no procedure for determining the validity of the acts of the organs of the United Nations.͟ Greece is asserting its rights by claiming indemnity from Britain arguing that Britain treated Mavrommatis in ͞a manner incompatible with certain international obligations which they are bound to observe. the initiation of studies and the making of recommendations. If the action was taken by the wrong organ. the functions and powers conferred by the Charter on the General Assembly are not confined to discussion. each organ must. at the request.͟ At first. It is not substituting itself with the citizen. human rights. to the internal structure of the Organization. one moves to the internal plane. cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the UN. by means of recommendations to States or to the Security Council. it was irregular as a matter of that internal structure. Both national and international law contemplate cases in which the body corporate or politic may be bound. or which compels either the State or the UN to refrain from bringing an international claim. consideration. Expenses. The General Assembly is given the power not only to "consider" the budget of the Organization. to bring into being an entity possessing objective international personality. It is apparent that the operations were undertaken to fulfill a prime purpose of the United Nations. in the eyes of Britain. of the States concerned. the Secretary-General incurred financial obligations. may order coercive action. defined. A state can take up the case of its subjects when injured by acts contrary to international law committed by another State. but is actually asserting its own rights. The first two purposes as stated in paragraphs I and 2. "Expenses" of any organization are the amounts paid out to defray the costs of carrying out its purposes. It is only the Security Council which can require enforcement by coercive action against an aggressor. While it is the Security Council which. but this would not necessarily mean that the expense incurred was not an expense of the Organization. or with the consent. Article 14 authorizes the General Assembly to "recommend measures for the peaceful adjustment of any situation. that the General Assembly is also to be concerned with international peace and security. A dispute is defined as a ͞disagreement on a point of law or fact. of the Charter of the United Nations"? Expenses. Responsibility of the UN Security Council and the UN General Assembly. determine its own jurisdiction. regardless of origin. a conflict of legal views or of interests between 2 persons. to organize peacekeeping operations. it could not be considered an "expense of the Organization". The provisions of the Charter which distribute functions and powers to the Security Council and to the General Assembly give no support to the view that such distribution excludes from the powers of the General Assembly the power to provide for the financing of measures designed to maintain peace and security. in accordance with such resolution. and not merely personality recognized by them alone. or to both. paragraph 2. the dispute was between a private person (Mavrommatis) and a State (Britain). which it deems likely to impair the general welfare or friendly relations among nations. Greece took up Mavrommatis͛ case as it is a Greek subject. is the sole claimant. of each Member to bear that part of the expenses which is apportioned to it by the General Assembly.

Sovereignty in relation to territory is called ͞territorial sovereignty. discovery but also effective occupation through: 1. According to widely accepted opinion of Judge Huber in the Island of Palmas case. provision of defense 3. independence in regard to a portion of the globe is the right to exercise therein to the exclusion of any other State. To conceive it as unlimited as to negate its existence in the context of the co-existence of sovereignties. they are none the less "expenses of the Organization" to be apportioned in accordance with the power granted to the General Assembly by Article 17. and. such that there prevails in fact co-existence of sovereignties under conditions of independence and equality. However.) ʹ the court will freeze the period of the controversy to the date when the controversy became ripe for adjudication.existence. The development of the national organization of States during the last few centuries. they would have shown Spanish occupation of the islands. defined.serving acts of parties at a stage when it was evident that a dispute existed. How is state sovereignty defined in international law? It is the right to exercise in a definite portion of the globe the functions of a State to the exclusion of another state. etc. etc. Spain never protested the exercise of territorial rights by Netherlands Discovery alone is not sufficient. The island was only reported to have been seen but there was no sign of possession or administration by Spain or any mention of a contract with the natives. and Spain did not have the island based on discovery. isolated island found between Mindanao and Greenwich. of the Charter could lead to the simple conclusion that "the expenses of the Organization" are the amounts paid out to defray the costs of carrying out the purposes of the Organization. paragraph 2. By showing that there were priests. In this case. so uncertain and uncontested. Even though certain expenses are "extraordinary" and "essentially different" from those under the "regular budget". lacking in precision. the development of international law. Critical Date ʹ regardless of what parties will do (subsequent events. The Netherlands claims that the Dutch East Indies possessed and exercised rights of sovereignty through conventions and agreements with the natives (Treaty of Suzerainty). the functions of a State. IL underwent modifications. taxation 2. Based on the Intertemporal Law. US bases its title by cession from the Spaniards. the functions of a State. paragraph 2. in the international sphere. However. The court held that there was indeed cession through the treaty of Paris. the act which creates a right is subjected to the law in force at the time the right arises. it merely gives the claimant an inchoate title to the territory and requires the discovery to be coupled with effective occupation. Territorial sovereignty. resulting in the negation of international community composed of juridically equal states. Independence. paragraph 2". sovereignty realizes itself in the existence of a large number of sovereignties. have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. how is it related to the independence of other States and to their equality on the international plane? From the standpoint of the national legal order.͟ Again. Principle of Continuity ʹ presumption of sovereignty in favor of a particular state wherein islands relatively close to the shores of a state belonged to them by virtue of their geographical proximity to each other. in regard to a portion of the globe. is the right to exercise therein. the tribunal disregarded this because: no precedent. ͞seeing͟ without occupation amounted to discovery. civil registrar. Although under international law in the th 16 century. contradictory opinions. The development of the national organization of States A. Critical date in this case ʹ Treaty of Paris (1898) The Critical Period is a juridical technique in the use or exclusion of evidence consisting of self. and arbitrary results The island of Palmas is a single. international law prescribed that not only Netherlands: Treaty Agreement of the Dutch with the natives allowed the Dutch to exercise sovereignty over the islands . But the existence if a right must follow the conditions required by the evolution of law ʹ the 19th century IL which requires effective occupation to constitute territorial sovereignty. And all the events after such date will be ignored. Article 17. to the exclusion of any other State. TERRITORIAL SOVEREIGNTY If state sovereignty is said to be ͞absolute͟. Island Of Palmas Case Sir Roque says: US: Discovery ͞Inchoate title͟ Huber: Discovery is not enough. Both US and Netherlands claim territorial sovereignty over the island.UP Law B2009 Reviewer (Karichi Edition)   Page 19 of 130 authority given him to incur financial obligations of the Organization and expenses resulting form such obligations must be considered "expenses of the Organization within the meaning of Article 17. United States could have won the case if they had shown that at the time there was no separation of church and state. Spain could not transfer to US more rights than she herself possessed. It appears to follow that sovereignty in relation to a portion of the surface of the globe is a legal condition necessary for the inclusion of such portion in the territory of a particular State. STATES 1.. The sovereignty of one state ends where the sovereignty of another state begins. it is important to view sovereignty in international law as the sovereignty of one State in relation to the sovereignty of another State in conditions of co.͟ Sovereignty in the relations between States signifies independence. as a corollary. However. That limitation is built into the nature of state sovereignty under international law. collection of tribunes. ͞Sovereignty in the relations between states signifies independence. claiming that Spain acquired title by discovery in the 1500s. This is the traditional context in referring to sovereignty as ͞absolute͟. state sovereignty is the supreme legal authority in relation to subjects within its territorial domain.

ever since the middle of the 18th century. Titles of acquisition of TS in present-day international law are either based on an act of effective apprehension. Although continuous in principle. etc. conquest. The growing insistence with which international law. Intertemporal law. without concrete manifestations. even in regions such as the interior of scarcely explored continents where such sovereignty is scarcely manifested. If. such a title exists. it is true. this is because the question rarely arises in connection with territories in which there is already an established order of things. cannot be presumed to reduce a right such as TS. it is customary to examine which of the claiming States possesses a titleͶ cession. e. However. or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from. As regards the question which of different legal systems prevailing at successive periods is to be applied (the so-called intertemporal law). or in exceptional circumstances to several. Territorial Sovereignty. only an inchoate title. If the effectiveness has above all been insisted on in regard to occupation. The fact that the functions of a State can be performed by any State within a given zone is. the development of international law. and in this way may prevent the other from any penetration of its territory. if effectiveness were required only for the act of acquisition and not equally for the maintenance of the right. It seems therefore natural that an element which is essential for the constitution of sovereignty should not be lacking in its continuation. Manifestations of TS assume different forms. This right has as corollary a duty: the obligation to protect within the territory the rights of other States. cannot or do not yet form the territory of a State.Ͷsuperior to that advanced by the other State. it has nonetheless limited their effect by the principles of prescription and the protection of possession. the delimitation of Hinterland. is able to recognize abstract rights of property as existing apart from any material display of them. If a dispute arises as to the sovereignty over a portion of territory.g. Discovery is not enough.g. as well as on an international jurisprudence and doctrine widely accepted. as e. shall follow the conditions required by the evolution of law. the actual continuous and peaceful display of state functions is. occupation. Although municipal law. An inchoate title could not prevail over the continuous and peaceful display of authority by another State. according to time and place. for such display may prevail even over a prior. however. Correlative duty with regards territorial sovereignty. or. on the other hand. without external manifestation. either by so-called natural frontiers as recognized by international law or by outward signs of delimitation that are undisputed. In the same way. or if there are gaps in the frontiers otherwise established. This demonstration consists in the actual display of State activities. in particular their right to integrity and inviolability in peace and in war. for the decision of the dispute. Disputes with regards territorial sovereignty. according to the view that th has prevailed since the 19 century. demands that the existence of the right. recognizesͶthough under different legal formulae and with certain differences as to the conditions requiredͶthat the continuous and peaceful display of TS (peaceful in relation to other States) is as good as a title. i. the structure of which is not based on any super-State organization. in general. in case of dispute. e. Continuous and peaceful display of sovereignty. Acquisition of title. the fact of peaceful and continuous display is still one of the most important considerations in establishing boundaries between States. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved. so too. to the category of an abstract right.e. must be considered critical. definitive title put forward by another State. The same principle which subjects the act creative of a right to the law in force at the time the right arises. as well as doctrine. involves the exclusive right to display the activities of a State. the State cannot fulfill this duty. have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. natural accretion can only be conceived of as an accretion to a portion of territory where there exists an actual sovereignty capable of extending to a spot which falls within its sphere of activity.UP Law B2009 Reviewer (Karichi Edition)   Page 20 of 130 during the last few centuries and. However. together with the rights which each State may claim for its nationals in foreign territory.. or if. the sound and natural criterium [sic] of TS. as has already been said. with its complete judicial system. under the reign of international law. occupation or conquest. If. its continued manifestation. or by acts of recognition of States within fixed boundaries. frontier conventions. a situation recognized and delimited in space. an inchoate title of discovery must be completed within a reasonable period by effective occupation. sovereignty cannot be exercised in fact at every moment on every point of a territory. It is true that neighboring States may by convention fix limits to their own sovereignty. no conventional line of sufficient topographical precision exists. how resolved. to the exclusion of all others. So true is this that practice. . like cession. The principle that continuous and peaceful display of the functions of State within a given region is a constituent element of TS is not only based on the conditions of the formation of independent States and their boundaries. or if a conventional line leaves room for doubt. e. the view is adopted that discovery does not create a definitive title of sovereignty but only an ͞inchoate͟ title. corollarily. boundaries of lands were necessarily determined by the fact that the power of a State was exercised within them. presuppose that the ceding and the cessionary Powers or at least one of them have the faculty of effectively disposing of the ceded territory.g. has demanded that the occupation shall be effective would be inconceivable. in the case of an island situated in the high seas. like the high seas or lands without a master. it must also be shown that the TS has continued to exist and did exist at the moment which. precisely the characteristic feature of the legal situation pertaining in those parts of the globe which. e. Territorial sovereignty belongs always to one.g. with which almost all international relations are bound up. on the other hand. the high seas. or else by legal engagements entered into between interested neighbors. the question arises whether a title is valid erga omnes. Without manifesting its territorial sovereignty in a manner corresponding to circumstances. States. International law. if the contestation is based on the fact that the other Party has actually displayed sovereignty. a distinction must be made between the creation of rights and the existence of rights.g. Territorial sovereignty [TS] is. it cannot be sufficient to establish the title by which TS was validly acquired at a certain moment. such as belongs only to the territorial sovereign. Just as before the rise of international law.

77 PLJ 437 (2003) I. If the claim to sovereignty is based on the continuous and peaceful display of State authority. but it cannot suffice for the territory to be attached to another by a legal relation not recognized in international law as valid against a State contesting this claim to sovereignty. Indonesia gives notice that it has enacted a new Baselines Law. or having a claim to sovereignty. Timeline: Art. 9 Nov 2000: Second bilateral consultation. the two countries agreed that delimitation of their territories would be done bilaterally and in consultation with each other. and (3) Creative options shall be used as appropriate. especially if this latter title has been left for a very long time without completion by occupation. Preparatory to the passage of the law.²superior to that advanced by the other State. The acts of the Dutch East Indies are attributable to the state itself. based on display of state authority. conquest. in equity. Discussion is only exploratory. 47. The passage of the law is a unilateral act and is the official expression of Indonesia͛s intent to treat Palmas as Indonesian territory. a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights. Indonesia pulls a surprise sneak attack. Harry L. The Philippines requests that an English version be furnished the Phil government. would prevail over an inchoate title derived from discovery. Official representatives agree that both countries will delimit the location between 120r and 129r30r East Longitude. awarding both islands to Malaysia and thereby necessitating amendments to the Baselines Law. however. what is essential in such a case is the continuous and peaceful display of actual power in the contested region. 23-25 Jun 1994: First-ever Senior Officials Meeting on the Delimitation of the Maritime Boundary between Indonesia and the Philippines. The acts of the East India Company. From the end of the 16 till th the 19 century. it cannt be sufficient to establish the title by which TS was validly acquired at a certain moment. Even if the material .´ Also in Legal Status of Eastern Greenland (Denmark v Norway): ³It must be borne in mind. which amends its law enacted in 1960. be entirely assimilated th to acts of the Netherlands State itself. 1931. under ³How to Settle Disputes´): ³If a dispute arises as to the sovereignty over a portion of territory. it must also be shown that the TS has continued to exist and did exist at the moment which.UP Law B2009 Reviewer (Karichi Edition)   Page 21 of 130 Principle of contiguity. Clearly. for the decision of the dispute. the date of passage of the 2002 law would be a ͞critical 3 date͟ from which to gauge which of the 2 countries has a superior 2 rd Palmas Arbitration Revisited H.2 This provision contradicts Indonesia͛s commitment with the Philippine government to delimit the area where Palmas is found only after and pursuant to the negotiations. These facts at least constitute a beginning of establishment of sovereignty by continuous and peaceful display of state authority. no further agreements are forged. including atolls. It is not necessary that there should be a special administration established in this territory. The officials agree that the following general principles shall serve as basis for negotiations: (1) The result shall be fully in keeping with international law. The Philippiness and Indonesia have been arguing over who gets to keep the island of Palmas. Dutch East Indies exercise of sovereignty. according to local conditions. Before this law was passed. the fact of such display must be shown precisely in relation to the disputed territory. etc. that as the critical date is July 10th. it is not necessary that sovereignty over Greenland should have existed throughout the period during which the Danish Got maintains that it was in being. and had already existed as continuous and peaceful before that date long enough to enable any Power who might have considered herself as possessing sovereignty over the island. No other substantial topic is discussed. if the contestation is based on the fact that the other Party has actually displayed sovereignty. It uses Palmas as a base point in drawing Indonesia͛s straight archipelagic baselines. companies formed by individuals and engaged in economic pursuits (Chartered Companies) were invested by the State to whom they were subject with public powers for the acquisition and administration of colonies. to have. The Philippines has not even started its own hydrographic survey. Roque Jr. but also to the archipelagic and territorial waters representing all waters enclosed by the island͛s straight baselines. 20 Dec 2002: 3 Meeting of the Philippine-Indonesian Joint Commission for Bilateral Cooperation held. the maritime boundaries shall be delimited on the basis of the median line principle. Such inchoate title.´ 3 Palmas case (see third(?) page of the digest. owing to the fact that the ICJ just recently issued a decision in the territorial dispute between Indonesia and Malaysia over the islans of Sipadan and Ligitan. it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation. is between 1 to 1 and 9 to 1.. This was why the 2 countries entered into delimitation talks in the first place. in view of occupying or colonizing the regions at issue must. The Netherlands has proved the exercise of some acts of State authority and the existence of external signs of authority (flags. including the 1982 UN Convention on the Law of the Sea (UNCLOS). it is customary to examine which of the claiming States possesses a title²cession. It may suffice that such display existed in 1898. Indonesia embarked on a modern hydrographic survey to chart its new baselines. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land. UNCLOS: ³1. coats of arms). or a commencement of occupation of an island not yet forming a part of the territory of a state. and presents a copy in Bahasa. but the alleged principle itself is by its very nature so uncertain and contested that even governments of the same State have on different occasions maintained contradictory opinions as to its soundness. must be considered critical [emphasis added]. might be deduced from the notion of contiguity. This includes the area in which Palmas is located. Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule. financed with the help (approx $170 M) of the government of Norway. occupation. and in keeping with UNCLOS. and it would equally prevail over any claim which. INDONESIA͛S NEW BASELINES LAW. and such a state of things would create in favour of the Netherlands an inchoate title for completing the conditions of sovereignty. The Baselines Law has not yet been deposited with the UN Sec-Gen. It is not just an official claim to land territory. (2) Where applicable. It is not necessary that the display of sovereignty should go back to a very far distant period. Introduction CONTEXT OF ARTICLE. in international law. However.

and maintain surveillance of sensitive maritime jurisdictions. (3) The inhabitants paid taxes to the Dutch governmentsince the th early 19 century. Gen. industrial zones. The US claim. Cotabato. (5) The Netherlands government introduced vaccination upon the island. it had since lost and/or abandoned its title by allowing the Dutch East Indies Company to enter into contracts and agreements with native rulers who ceded their territories in favor of the company. Palmas: The Island and the Arbitration THE CASE. and Zamboanga are directly accessible from the said sealanes.͟ The dispute began in 1906 when Maj. THE DUTCH HAD THE UPPER HAND. ͞It lies within the boundaries of the Philippines as ceded by Spain to the US in 1898 (by the Treaty of Paris). Unlike subsequent arbitrations. (3) It is well within the limits marked by the 4 May 1493 Bull of Alexander VI [the Inter Caetera]. Davao City. The sheer area of maritime territory that the Phils would lose. Walter Schucking of Germany. MISCELLANEOUS FACTS. visited Palmas and discovered the Dutch flag hoisted on the island. owing to the area͛s distinct and outstanding biodiversity. they wanted a certain Dr.mi.´ 4 Not defined. yellowfin tuna. or a Dr. the island has been under the suzerainty of the Netherlands. it was not necessary for Spain to maintain seaprate administrations over the island. summarized: (1) Palmas lies well within the demarcation of Art. e. IN A NUTSHELL. The island was small and populated by 689 ͞diseased and destitute inhabitants of low mentality who speak a Malay-Spanish dialect. who in 1877 signed an agreement with the Dutch East Indies Company that the Tabukan territories should become the property of the company. The case would have been ideally brought to the PCIJ because it involved international law. including recourse to arbitration. but a footnote points to a book entitled ³Power Plant Technology. with the avowed goal of converting the submitted to the Court might be thought insufficient to establish the existence of that sovereignty during the earlier periods. The Americans were generally hesitant to pursue the claim. Also. The Americans believed however that the PCIJ might be biased against the US. Pagadian. The Swiss arbitrator Max Huber succinctly summarized the conflicting claim to Palmas when he said. and that a group of Jesuit missionaries were actually sent to settle in the island. by the island͛s inhabitants to the Spanish Government. Treaty of Paris. Since the beginning of the 19th century. A native who spoke Spanish allegedly informed him of ͞the visits of Netherlands subjects to the island.g.000 sq. the Philippiness would lose not only Palmas Island but also some 15. The US tried to prove the payment of cedula. consequently. If the new baseline coordinates drafted by Indonesia were followed. and (8) Spain exercised sovereignty over the Phil archipelago as a whole. making the Davao Gulf. or limited to Memorandums . the parties stipulated that the proceedings shall be summary in nature. Archives in Seville also disclosed evidence that Spain sent an expedition to the island in 1710. Palmas was conquered by the Rajah of Tabukan. the area has been tagged as a marine eco-region by the WWF. could not cede it to the US. which got at least one US senator to ask about the veracity of the report. (7) Spain never relinquished control over the island except to the US. 3.´ natives and exercise occupation of the island on behalf of the Spanish crown.͟ Nevertheless. control. Why the US considered the PCA to be more neutral. IN A NUTSHELL. Many of the country͛s major population centers. General Santos. probably to minimize costs. was not justified owing to the ͞trifling value of the island. (4) The island is named in contract between the Dutch government and the Sultan of Turante. (6) The government of Spain considered Palmas one of its oceanic possessions. possibly in cooperation with Indonesia. not having control of the island at the time of cession in 1898. was not discussed. II. These are Philippines territories currently defined under the Treaty of Paris. Max Huber was actually not the US͛s first choice as Arbitrator. then the American Gov-Gen of the Phils. this would not exclude a finding that it is sufficient to establish a valid title in the period immediately preceding the occupation.͟ WHAT HUBER DOESN͛T TELL US. (3) The ͞warm pool͟ of the world͛s oceans is centered on Southern Mindanao. and the ports of Mati. Sarangani and Illana bay in the Moro Gulf the most suitable sites for large-scale ocean 4 terminal plants. considering it is also based at The Hague. The alleged grounds for the Netherlands claim: (1) In the 17th century. IN A NUTSHELL. (2) It is approx 12 miles nearer to Mindanao than to any of the smaller islands of the Dutch Archipelago. The case could not be brought to the Permanent Court of International Justice because the US was not a member of the League of Nations and. or one Lord Finlay. there was a lot of publicity in 1911 over a report that Dutch authorities tore down a US flag found on the island.UP Law B2009 Reviewer (Karichi Edition)   Page 22 of 130 claim to both Palmas and the archipelagic and territorial waters surrounding it. because the court was based at The Hague and headed by a Dutch man. Leonard Wood. Yoruzo Oda. under Phil sovereignty. will enable the country. of the PCIJ. warrant a re-examination of the root of Indonesia͛s claim to Palmas: the Palmas Arbitration of 1928. (7) Spain never questioned the right of the Netherlands government to exercise its sovereignty or to plant its flags on the island. as well as regular visits of Spanish naval vessels to the islands. IT IS IN THE RP͛S BEST INTERESTS TO MAINTAIN AUTHORITY AND CONTROL OVER THE PALMAS AREA. (2) Close to the critical spawning areas and passage highways of economically important fish. of archipelagic and territorial waters.͟ and the legal recourse to the claim. plus the foregoing reasons. a member of the PCIJ. The nearest island to Palmas is Cape San Agustin. (4) It is well within the limits of the agreement concluded 4 July 1494 between Spain and Portugal. (2) The possession of the Dutch East Indies Company came under the direct control of the Netherlands Govt. Reasons include: (1) Very close to the strategic axis linking the Pacific and Indean Oceans. (5) The union of Spain and Portugal in 1580 should remove any doubts as to the title of the Island prior to that time.. or residence certificate taxes. The establishment of archipelagic sea-lanes between the two. (6) The Netherlands authorities visited the island at least once a year. US CLAIM. and (8) Spain. Implicit in its arguments is that while Spain may have had title to the island by virtue of discovery. to monitor. DUTCH CLAIM.

constructively. but the Dutch position was suspiciously sustained by Huber in his award. gives rise only to an inchoate right which must be perfected through open and continuous acts evidencing effective occupation. supported with even token evidence of effective occupation.͟ Huber͛s theory was without precedent and may probably be described as a bold articulation of a new theory which until today does not seem to have been given wide acceptance.Inter-temporal law: Where different legal rules existed over a period of time. had to prove effective occupation. Eastern Greenland: Denmark͛s possession of part of Greenland was held sufficient evidence of her possession of the whole disputed area. By default. But Venezuela. He had criticisms not only on the procedural aspect of the arbitration. 46(b). therefore. the application of inter-temporal law is the legal basis for third states (e. for 200 years. the Dutch did not state the entirety of their case in their Memorandum. Huber not only failed to appreciate the American formulation of what would later on be the accepted international law doctrine called ͞constructive possession of hinterlands. or which historically have been regarded as such. It was possible therefore that the island being claimed by the Netherlands was not Palmas. the Dutch never attached any of their alleged documentary evidence. Thus state͛s title to territory acquired as a result of conquest is not ipso facto extinguished as a result of the rise of the contemporary norm forbidding the use of force in the conduct of international relations. Every State would constantly be under the necessity of examining its title to each portion of its territory in order to determine whether a change in the law has necessitated. The theory of contiguity was already in existence in 1928. Most alarming to Philip Jessup. . Such a retroactive effect of law would be highly disturbing.´ . to be effective.͟ The American panel registered its objection to the manner by which the Dutch wanted to prove their allegations. as invoked by the Americans. even though he would also establish two revolutionary and precedent-setting rulings (inter-temporal law. This was an issue of fact that should have been decided with the assistance of experts. Examples: American and Canadian wilderness. CONTIGUITY THEORY. Assume that A holds X. the US had to argue that it was unnecessary to prove this specific fact of effective occupation. ͞An inchoate title could not prevail over the continuous and peaceful display of authority by another state.g. definitive title put forward by another state. Thus the US and the Netherlands. He was obviously hesitant to establish a precedent on this matter. among others. the fact that the US did not actually submit evidence of effective occupation (e. Under the theory of ͞inter-temporal law͟ as expounded. Highlights of the Decision .The Netherlands established effective occupation through.. JESSUP SHOWS WHY HE HAS A MOOT COURT COMPETITION NAMED AFTER HIM. The Americans objected. notwithstanding the 5 Art.. to his mind. even the mere raising of the Spanish flag. instead. it was proper to take into account the fact that the island is one part of the geographical unit known as the Philippine archipelago. There being a paucity of evidence of actual Spanish exercise of authority on Palmas. Worse. Only 5 years after Huber͛s award and Jessup͛s article. JESSUP WAS NOT ALONE. HUBER BIASED? Huber asked for further written instructions [/explanations] only from the Netherlands. enabling them to dispute point by point the Americans͛ arguments. ͞Assume that State A acquires Island X from State B by a Treaty of Peace after a war in which A is the victor. but must secure a new title upon such other basis [as is] in accordance with the new rule. addressing the issue of contiguity: ͞[I]t is doubtful whether. a group admittedly belonging to the Netherlands. INTER-TEMPORAL LAW AS FORMULATED: NON SEQUITUR. Sir Hearsh Lauterpacht. Jessup insisted that Spain͛s title over the archipelago is clear and that in the absence of contrary evidence. As formulated by Huber. they merely undertook to ͞produce them upon request of the arbitrator. but one of the Nenusa Islands. but also on the substantive aspects of the award. collection of cedula. a reacquisition. it possessed all the parts.g. the result would be chaos. UNCLOS: ³¶archipelago¶ means a group of islands. The stipulation had the effect of limiting the ability of each party to prove facts it was alleging. but without making use of it. it would appear that A would no longer have good title to X. critical date). for such display may prevail even over a prior. already raised the proposition that occupation. the Americans submitted all their arguments and evidence by way of Annexes to their Memorandum. . as it were.͟ . At the end of that time suppose that the development of international law [sic] and that the new rule is that no territory may be acquired by a victor from a vanquished at the close of a war. Jurisprudence abound in international law respecting acquired rights or applying the law in force at the time of the creation of the right. On the other hand. THEORY OF CONSTRUCTIVE POSSESSION. Since Spain possessed the whole. both the rule at the creation of the right and at the time of its exercise must be applied. it must be assumed that her occupation and control of Mindanao and other islands included Palmas.UP Law B2009 Reviewer (Karichi Edition)   Page 23 of 130 and Counter-Memorandums. is Contract of Suzerainty with the local rulers and tribesmen of the island. including parts of islands. in the British Guiana Boundary Arbitration. interconnecting waters and other natural features which are so closely interrelated that such islands. Netherlands) to acquire a better title to disputed islands on the basis of subsequent acts executed over a long period of time from the incipient time of discovery. actual occupation of only parts of Australia and New Zealand. they summarized their arguments for the first time only in their Counter-Memorandum. reports from the different Catholic sects on the island) was solely because Spain did not provide the US with such evidence. economic and political entity. But Huber rejected this argument based solely on the alleged lack of a positive rule that the theory is recognized in international law. A. but the Arbitrator was the sole Judge of questions on procedure. need not extend to every nook and corner of the territory.Critical date: a judicial technique in the use of evidence and more especially the exclusion of evidence consisting of self-serving acts of parties at a stage when it was evident that a dispute existed. ARE WE TALKING ABOUT THE RIGHT ISLAND HERE? All the Dutch͛s names for Palmas have also been used to refer to the Nenusa Islands. If such a principle were to be applied to private law and private titles.Discovery per se.͟ he ignored even the common definition of ͞archipelago͟ as a group of islands and waters 5 forming a geographical whole. it should have been enough basis for an award in the US͛s favor. waters and other natural features form an intrinsic geographical. the PCIJ would expressly recognize the existence of the rule which Huber declared non-existent. Besides. the Americans and the Dutch had a different construction of the requisite Memorandum: Consistent with modern forms of summary procedure. asking them to explain the weakness in their arguments as pointed out in the American CounterMemorandum.

The surrounding waters.. a defined territory. and until now. to succeed to. pursuant to the UNCLOS. concluded at Paris .. July 4 1946. and the Guinea-Guinea Bissau Maritime Delimitation case. Moreover. it has been the view since the time of Grotius that the consent of the population of the ceded territory is essential to the validity of the cession. its personality to advance a right. Standing to Arbitrate CESSION AS BASIS OF US͛S STANDING. THE PHILIPPINES HASN͛T AGREED TO SUCCEED THE US IN THE PALMAS ARBITRATION. But did Spain still have title to the Philippine archipelago on the date of the cession? By 12 June 1898.. local government units were organized.. should NOT be challenged. Spanish military forces were already defeated by Filipino revolutionaries and were generally isolated. still it would not ipso facto result in the Philippines͛s succession to the US͛s obligation.. Art.. preparatory to the [former]͛s attainment of independence. RECOGNITION BY OTHER STATES. and capacity to engage in formal relations with others. she transferred nothing to the US.. Arbitral awards are therefore only binding on States that agreed to the arbitration (principle of autonomy of parties). Contiguity in such cases may be an essential condition which gives rise to the only element of substance to such otherwise abstract occupation. it cannot be made subject to the Huber decision. Non-Transferability of Arbitral Awards CARDINAL RULE IN ARBITRATION: Consent freely given is the core for any arbitration. recognized as a mode of acquisition of territorial sovereignty. ON SUCCESSION OF STATES. under existing international law norms. or almost 6 months prior to the Treaty of Paris. all the Philippines͛s laws and Constitutions define her territory on the basis of historical title. a. the islandͶnot being a part of an archipelagoͶmay be ͞enclaved͟7 and given its own territorial sea.. effectiveness need not be as complete as appears at first sight and that contiguity is not theoretical and arbitrary at first sight. if not before then. by the time the Treaty of Paris was signed. Clearly. and obligations.UP Law B2009 Reviewer (Karichi Edition)   Page 24 of 130 high authority of the arbitrator. for reasons of stability and finality of frontiers. Even assuming that the Philippines may be held as the successor state of the US to Palmas and the entire Philippine archipelago as ceded. the Philippines was already by then a Republic. Any other arrangement would be contrary to the UNCLOS and would lead to a disproportionate and inequitable result. At most. All this was done with the knowledge and complicity of American forces. Could it be ͞that effectiveness was established negatively from the absence of any competing manifestations of sovereignty. without an exclusive economic zone. The Filipino people gave the Malolos government their wholehearted support and allegiance. UNNECESSARY. Though this was one considered an element of statehood. It is effectiveness relative to the situation and to the circumstances. the conceptions of effectiveness and contiguity often provide no more than [a] starting point. e. In any case.. successor states do not automatically succeed to their predecessor state͛s rights. unlike the US claiming it as part of the Philippines. a constitution was drafted. and the US. The fact that the Treaty of Paris is recognized as defining the territory of the country does not give its supposed cession any recognition.͟ O͛Connell also questioned how effective the Dutch occupation of Palmas could have been. Guinea Bissau v Senegal. including the metes and bounds as contained in the Treaty of Paris. Spain no longer had title to the Philippine archipelago.. and a Congress was convened with most of its members duly elected. a revolutionary government was declared. consequently. the number of countries represented in the annual vin de honor on Independence Day should be sufficient proof of recognition.. treaty-based or otherwise. BUT WE WERE ALREADY INDEPENDENT. was not a party to the Palmas Arbitration. On the basis of historical accounts. Furthermore. While cession was then. PALMAS WAS NEVER ALLEGED TO BE PART OF INDONESIAN ARCHIPELAGO by the Dutch in the Arbitration.¶ it can only have its own territorial sea. should 6 7 Treaty of General Relations Between the [USA] and the [RP].. It is well documented that the US was keenly aware of the existence of the new independent state of the Philippines and that Spain had lost its title to the archipelago as of the signing of the Treaty of Paris. and that it was only because the Netherlands has taken more interest in the island than Spain that it was adjudged entitled [by the latter]?͟ B. Recent state practice. What was stipulated was only that: ͞The [RP] agrees to assume all continuing obligations assumed by the [USA] under the Treaty of Peace . Since the Philippines. it was because of these considerations that US policymakers had to hide their imperialistic agendas from those who were opposed to the annexation of an independent nation. . a government.k. therefore. and Gen. that would indicate that the former agreed to succeed the latter on the Palmas arbitration. On the contrary. now recognition is seen as merely declaratory in nature. The US͛s standing to arbitrate... it is subject to the limitation that one͛s title is only as good as the title of one͛s predecessor (Nemo dat quod non habet). involving as it does the attendance of ambassadors and officials from the Netherlands. The apparent antimony of effectiveness and contiguity begins to wear thin as soon as we realize that. In fact. Indonesia. As a rule. Indonesia may be recognized to have sovereignty over the island by virtue of the Palmas arbitration. In that sense contiguity is a factor more potent. it could dispose of a doctrine which has figured prominently in the practice of states. BUT WERE WE AN INDEPENDENT STATE? The creation of any state is evaluated on the basis solely of the elements of statehood as defined by the Montevideo Convention: a permanent population. Moreover. a cabinet was appointed and convened. capacities. the Philippines satisfied all such criteria by 18 Dec 1898. hence Indonesia is estopped from making such a claim.a. Spain. When that point is reached there is little to choose between contiguity and effectiveness of occupation. was by virtue of Spain͛s cession in 1898.g. the recently unified Germany and the new states of the former Yugoslavia. 1900. Immediately afterward. even under the best scenario for Indonesia.͟ UTI POSSEDITIS: Colonial boundaries. prove that States are at liberty to choose which obligations. The principle was applied in such cases as the Mali-Burkina Faso case. at that time already an independent State. 121(2)-(3) UNCLOS: If an island cannot support µhuman habitation¶ or µeconomic life of its own. the treaty only serves as evidence on the actual boundaries of the country as defined by Spain. Instead. and under the Treaty between the [USA] and Spain concluded at th 6 Washington the 7 day of November. C. Emilio Aguinaldo declared Philippine independence and proclaimed the Republic. There is also nothing in the Treaty between the Philippines and the United States. AND THE US KNEW.

If a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory. it does not justify Indonesia͛s use of Palmas in its 2002 baselines law as a base point for the drawing of its archipelagic baselines. However. it only means a state can exercise jurisdiction in its own territory even if the act occurred on board a foreign ship). The territoriality of criminal law is not an absolute principle of international law and does not coincide with territorial sovereignty. which is only limited in certain cases by prohibitive rules. Accordingly. In virtue of the principle of the freedom of the seas (absence of any territorial sovereignty upon the high seas). it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them. given decisions sanctioning this way of interpreting the territorial principle. happening to be at the spot where a collision occurs between a vessel flying its flag and a foreign vessel were to send on board the latter an officer to make investigations or to take evidence. in regard to a variety of situations. a ship is placed in the same position as national territory but there is nothing to support the claim according to which the rights of the State under whose flag the vessel sails may go farther than the rights which it exercises within its territory properly so called. the authors of which at the moment of commission are in the territory of another State. French courts have. III. territorial character.UP Law B2009 Reviewer (Karichi Edition)   Page 25 of 130 still be declared as forming part of Philippine archipelagic and territorial waters. There is equal preponderance of evidence presented by both states as to their occupation of a certain portion of Greenland. Although acquiescence is not a means of acquiring title. even in regard to offences committed there by foreigners. property and acts outside their territory. for. This conclusion could only be overcome if it were shown that there was a rule of customary international law which established the exclusive jurisdiction of the State whose flag was flown. The Boz Kourt was cut in two and sank. Demons. and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs. such as expeditions. This is because Indonesia͛s predecessor-in-interest. granting of concessions. the same principles must be applied as if the territories of two different States were concerned. what won it for Denmark was estoppel or acquiescence because of the Ihlen Declaration. it leaves them in this respect a wide measure of discretion. SS Lotus Case (France v. the Netherlands. There was a collision at the high seas between a French mail steamer Lotus with the Turkish collier Boz Kourt. For this contention only relates to the case where the nationality of the victim is the only criterion on which the criminal jurisdiction of the State is based.e. In other cases. if a war vessel. The parties submitted the conflict tot the Court at the Hague. it is a proof of a better claim. But no such rule of international law exists. and no other State may do so. Vessels on the high seas are subject to no authority except that of the State whose flag they fly.. even of countries which have given their criminal legislation a strictly Eastern Greenland Case If the area is thinly populated or unsettled. But it does not follow that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas (double negative ito. Palmas should be treated as an island independent of the Indonesian archipelago and properly enclaved. i. etc. did not allege in the Arbitration that the island formed part of the archipelago. if one of the constituent elements of the offence. Eight Turkish nationals on board died. Nationality of victim is not the sole basis of jurisdiction. Territoriality of criminal law is not absolute in international law. little actual exercise of sovereign rights is sufficient. legislation. Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental. there was . Such argument could only be used in the present case if international law forbade Turkey to take into consideration the fact that the offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged. Thus. the delinquent. a French citizen. Norway͛s possession was not in the concept of a title. Demons was arrested by the Turkish authorities and was subjected to trial in the Turkish courts. It͛s not necessary to consider the contention that a State cannot punish offences committed abroad by a foreigner simply by reason of the nationality of the victim. Jurisdiction can be determined by looking at the elements [effects] of the crime. protesting his arrest. It is certain that the courts of many countries. interpret criminal law in the sense that offences. Turkey) Sir Roque says: The decision in the SS Lotus case has already been overturned by the UNCLOS. Vessels are covered under the jurisdiction of the state whose flag they fly. A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State the flag of which it flies. are nevertheless to be regarded as having been committed in the national territory. The officer on watch on board Lotus was Lt. Sir Roque says: Although both sides were able to present evidence establishing their sovereignty over the area. no State may exercise any kind of jurisdiction over foreign vessels upon them. Conclusion Assuming for the sake of argument that Indonesia͛s title to Palmas is beyond dispute because of the Palmas arbitration. All that can be said is that by virtue of the principle of the freedom of the seas. just as in its own territory. and they do so in ways which vary from State to State. accordingly. from regarding the offence as having been committed in its territory and prosecuting. every State remains free to adopt the principles which it regards as best and most suitable. upon it. and more especially its effects. State discretion in applying local laws. Lt. such an act would undoubtedly be contrary to international law. that State exercises its authority. have taken place there. demanding his release or obtaining transfer of the case from the Turkish Courts to the French Courts. The French government protested the actions of the Turkish authorities. The case under international law at present is that far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons.

There is nothing to show any definite renunciation on the part of the Kings of Norway or Denmark. (1951) Proof of territorial sovereignty: exercise of jurisdiction. Indeed. and a desire arose in Norway and Denmark to recover the territory which had been subject to the sovereignty of the King's ancestors in the past. and some actual exercise or display of such authority. in which Greenland has been described as a Danish colony or as forming part of Denmark or in which Denmark has been allowed to exclude Greenland from the operation of the agreement. In the opinion of the Court. The geographical meaning of the word "Greenland". Ihlen. i. One of the peculiar features of the present case is that up to 1931 there was no claim by any Power other than Denmark to the sovereignty over Greenland. Unless it was so restricted. Denmark maintained that the promise by in 1919 by M. Court: Naaah!. A second series of undertakings by Norway. 1931. Loss of sovereignty by conquest. by treaty or otherwise herself recognized Danish sovereignty over Greenland as a whole and therefore cannot dispute it. Also. There must also be intent. wrote to the British Minister in Stockholm that the King of Sweden and Norway agreed to renounce in favor of the Kingdom of Denmark their claims over Iceland. Also. Greenland. This proclamation was criticized for its failure to specify the limits of the occupation but it must have been intended that on the eastern side of the sea and the western side the ͞inland ice͟ should constitute the limits of the area occupied. A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority. It is known now that the settlements must have disappeared at an early date. Norway: Denmark only possessed West Coast of Greenland. Also. and that at the time of the occupation the area was terra nullius. speaking on behalf of his Government debarred Norway from proceeding to any occupation of territory in Greenland even if she had not by other acts recognized an existing Danish sovereignty there. It is not sufficient for her to show that in many of these legislative and administrative acts action was only to be taken in the colonies. Conquest only operates as a cause of loss of sovereignty when there is war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State. Remember that it is not only physical possession that is important. has not been contested by any Power. The letter was written because Norway-Sweden was asking for the intervention of the British Prince Regent in settling its differences with Denmark. Estoppel and acquiescence by Norway. must be regarded as the ordinary meaning of the word. and until the present dispute. it affords no ground for interpreting the word ͞Greenland͟ in this restricted sense. Constructive Possession. 1931. Norway claims that Denmark possessed no sovereignty over the area which Norway occupied on July 10. [7] Jersey customs authorities established a custom house for the purpose of a census. Denmark claims that the sovereignty which it enjoys over Greenland has existed for a long. said that it is taking possession of which is ͞officially confirmed͟. Both UK and France seek to establish sovereignty over the Minquiers Group and Ecrehos Group of islets and rocks by citing ancient title and treaties. but at the time there seems to have been a belief that despite the loss of contact and the loss of knowledge of the whereabouts of the settlements one or both of them would again be discovered and found to contain the descendants of the early settlers. which is one of the 2 requirements of sovereignty. UK won because of ͞ordinary local administration. and the tribunal has had to decide which of the two is the stronger. there have been two competing claims to the sovereignty. the th tradition of the King͛s rights lived on. It did not have the intent to possess in behalf of a sovereign. and which is ͞placed under Norwegian sovereignty͟ of Elrik Raudes Land in Eastern Greenland. The burden of proof lies on Norway to prove that Denmark used the word ͞Greenland͟ only to mean the colonies on the West Coast. [4] licensing of fishing boats. The fact that most of these acts were concerned with what happened in the colonies and that the colonies were all situated on the West coast is not by itself sufficient ground for holding that the authority in virtue of which the act was taken ʹ whether legislative or administrative ʹ was also restricted to the colonized area. This 1931 Proclamation of Norway triggered the controversy between Denmark and Norway. especially with its financial obligations under the Treaty of Kiel. That period was an era of adventure and exploration. Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory is the extent to which the sovereignty is also claimed by some other Power. Norway. recognizing Danish sovereignty over Greenland. in its proclamation of July 10. the Minister of Foreign Affairs of Norway and Sweden (Sweden had control over Norway during this time). Malaysia) . the Norwegian Minister for Foreign affairs. THEMATIC LIGHTHOUSES Minquiers & Ecrehos Case (UK v. the name which is habitually used in the maps to denominate the whole island. The principle does not apply in a case where a settlement has been established in a distant country and its inhabitants are massacred by the aboriginal population. involves two elements each of which must be shown to exist: the intention and will to act as sovereign. The example set by the navigators of foreign countries was inspiring.͟ specifically referring to: [1] Jersey courts exercising criminal jurisdiction for nearly 100 years.UP Law B2009 Reviewer (Karichi Edition)   Page 26 of 130 no animus possidendi. and the Faroe Islands. and in the early part of the 17 Century. Loss of sovereignty by voluntary abandonment. no Power disputed the Danish claim to sovereignty. France). local administration and legislation. Denmark claims that Norway. Case Concerning Sovereignty over Pulau Ligitan and Sipadan (Indonesia v. despite having no intercourse with Greenland. a revival of interest in Greenland on the part of both the King and of his people took place. time. [2] Jersey law requires the holding of inquests on corpses found in the area. Norway has not succeeded in establishing her contention. is afforded by various bilateral agreements concluded by Norway with Denmark.e. Nor is the fact of "conquest" established. has been continuously and peacefully exercised. In most of the cases involving claims to territorial sovereignty which have come before an international tribunal. and by various multilateral agreements to which both Denmark and Norway were contracting Parties. [3] houses built in the area were assessed for the levying of taxes. [5] real estate contracts relating to property in the area were registered in the public registry of deeds. up till 1931.

Medieval Yemen had no concept of territorial sovereignty. Uti Possidetis Juris principle. (Cambodia v. they may be used alone with other evidence to establish real facts. (1994) A boundary established by a treaty achieves permanence which the treaty itself does not necessarily enjoy. do not constitute territorial titles (document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights). Libya v. such as petroleum concessions. It would have had a legal force if annexed to a legislative or executive decree. UK argues that the baseline should be the low-water mark on permanently dry land and that the trace parallele method should be used. Frontier Dispute Case (Burkina Faso v. MAP CASES Anglo-Norwegian Fisheries Case (UK v. concept deals with acts of administration. [2] France (Cambodia) relied on Siam͛s non-objection.͟ specifically: [1] its regulation on gathering of turtle eggs. the drawing of baselines must not depart to any appreciable extent from the general direction of the coast. standing alone. [4] the 10-mile-maximium rule on the maximum length of the baseline does not apply because it has always been opposed by Norway. the theory of autoimitation provide that boundaries have a life of their own separate from the treaty itself because a boundary established by treaty achieves permanence. Norway). Method applies to well-defined bays and cases of minor curvature of the coastline. Siam (Thailand) is estopped from questioning the delimitation in the maps because [1] Siam did not react to the map when it was so presented. Successor states must respect the colonial boundaries of colonial rulers. [3] its declaration of a bird sanctuary. did not obtain title to the territory under the Treaty of Lausanne because it was provided that the allied powers have yet to agree on who can claim sovereignty over the territory. colonial effectivies. Italy. (1986) The dispute relates to the delimitation of part of the common barrier between the former colonies of Upper Volta (now. ICJ rule in favor of Malaysia because effective occupation was proved by its ͞effective acts of administration. The court will determine who has a better claim. Skjaergaard. No historic title. This . Burkina Faso) and Sudan (now. Effective occupation.UP Law B2009 Reviewer (Karichi Edition) y   Page 27 of 130 y Indonesia and Malaysia lay claim over the islands of Ligitan and Sipadan. This is a method by which off-shore islands can be attributed to a State͛s sovereignty. as inherited from the French administration and existing at the moment of independence. (1962) Estoppel Principle. Eritrea did not gain title by succession. The dispute relates to the expiration of the treaty with Chad citing the uti possidetis juris principle and Italy arguing that there is no longer a boundary since the treaty has expired. Notwithstanding the fact that the treaty provides for a mere 20-year effectivity. Effective occupation is a mode of acquiring title which seeks to prove title to the territory. lying along the coast of the mainland. Later.000 insular formations. Primary question in territorial disputes. Theory of auto-imitation. Chad. The Mohabbakahs Islands. State succession is a mode of acquiring title which seeks to prove administrative boundaries. and Yemen which claims title by automatic reversion and historic title. However. Trace parallele method. Maps. The conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during colonial period. This concept deals with the exercise of sovereignty of a state over a particular territory. and imposes the obligation to respect pre-existing international frontiers in the event of state succession. Eritrea͛s predecessor. (1951) Circumstances affecting delimitation. and title by succession as proof of ownership. located within the territorial sea of Eritrea. Effectivites. This is in line with the need to prevent conflict and instability. defined. Mali). Both countries cite treaties. Effective occupation. Yemen.͟ [2] this gives a simpler form to the belt. (1998) y y y y y y The dispute relates to ownership over the red sea islands between Eritrea which claims title by succession. [3] general toleration of the international community. ICJ used the uti possidetis juris principle and looked into evidence of colonial heritage Uti Possidetis Juris principle. properly belongs to it. Chad and Italy became independent of France and Libya.͟ ͞diversity of facts͟ and ͞special circumstances. defined. y y y A treaty between the colonial powers France and Libya was entered into delimiting its frontiers. Yemen cannot claim title by automatic reversion. The goal is to provide a simpler form to the belt of the territorial waters. colonial effectivites. Islands near coastal states must pertain to such states. Effective occupation. Eritrea v. Effectivites. [2] its building of lighthouses. effective occupation. Therefore. This principle proves administrative boundaries or colonial heritage during the colonial period. Splitting of award. This method consists in drawing the outer limit of the belt of territorial waters by following the coast in all its sinuosities. No title by succession. However. The rationale for this principle is that the maintenance of the territorial status quo is seen as the wisest course in order to preserve what has been achieved by people who have struggled for their independence and to avoid a disruption. Criteria provide courts with basis for their decisions. A skjaergaard is made up of around 120. It aims to secure respect for the territorial boundaries at the moment when independence is achieved. Method applies to ordinary coasts. is prima facie evidence of title. The following are fundamental considerations inherent in the nature of the territorial sea. The clearest dividing line between land and sea is the skjaergaard. not the coast of the mainland. First. respectively. Therefore. ICJ allowed Norway͛s method of delimiting the fisheries zone through the straight base-line method reckoned from the outer line of the skjaergaard because [1] this is in consonance with ͞geographic realities. Ratio for this is because it is the land which confers upon the coastal state the Preah Vihear Temple Case. defined. Thailand). Straight baselines method. Mali). Portico doctrine. defined. This method consists in selecting appropriate points on the low water mark and drawing straight lines between them. The group of islands need not be awarded to one claimant. defined.

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right to the waters off its coast. Second, the sea areas lying within the baseline must be closely linked to the land domain to be subject to the regime of internal waters. Third, the economic interest peculiar to the region, as evidenced by long usage, should be considered.

Effective occupation. The ICJ did not look into effective occupation because the territories were subject to only one colonial power. Colonial effectivites. In order to determine the colonial boundaries, the ICJ looked into the colonial effectivites or contemporaneous acts, which refer to the belief of one that he belongs to one or the other unit. Contemporaneous acts: belief of one that he belongs to this particular unit. Post colonial effectivites: proof of colonial boundaries; the court looked at republic titles submitted to them and also the subsequent acts of parties after independence.

Western Sahara Case (1975)
Area was not terra nullius at the time of Spain͛s colonialization. Terra nullius means a territory belonging to no one, over which sovereignty can be acquired by occupation. This is because: [1] state practice indicates that a territory inhabited by tribes having a socio-political organization is not terrae nullius; [2] Spain never treated its case as occupation, but merely ͞protection.͟ There are no legal ties so there can be no reversion to either Morocco or Mauritiana. Both Morocco and Mauritiana claim to have legal ties with Western Sahara prior to its colonization by Spain through. Morocco claims to have ͞immemorial possession,͟ and public display of sovereignty, uninterrupted and uncontested for centuries, as th evidenced by the Arab conquest in 7 Century AD. The court rejected this contention because there was no display of control, but merely of allegiance of some (not all) of the nomadic people. Mauritiana bases its claim on the Mauritian entity, which denotes the cultural, geographical and social entity existing in the tribes of Western Sahara. The court rejected this contention because there was no common institution recognized by the tribes. In addition, the ICJ took note of the following facts: [1] the practice of taxation was done by the people of Western Sahara for themselves; [2] the nomadic nature of the tribes is contrary to the concept of sovereignty; [3] there was no evidence the people recognized any further allegiance outside their local leaders.

Clipperton Island Arbitration (France v. Mexico), (1931)
If the island is uninhabited, physical occupation is not necessary. Open declaration is sufficient. Clipperton island is terra nullius considering the territory was uninhabited and without administration. Sovereignty over the island was declared by France from the moment its navy members landed on the island in 1858 and was published in a Honolulu journal, The Polynesian in the same year. Physical occupation; not necessary. France successfully acquired title by occupation. Physical occupation is not required where: [1] territory is terra nullius; [2] at the time the occupying state makes its appearance there; and [3] taking of possession and intent to possess is shown by a public declaration of sovereignty.

China͛s Claim to the Spratly͛s Islands, Roque
When oil was discovered, many countries lay claim over it. China bases its claim on discovery, effective occupation, and recognition. The Philippines bases its claim on effective occupation after Japan renounced its title over the islands. The article discusses the modes of acquiring territory. Modes of Acquiring Territory: Effective occupation. Effective occupation is the official exercise of exclusive authority by an occupying state or any authorized person, with or without physical occupation depending on whether or not the island is uninhabited (Clipperton Island Arbitration). Note that territory must be terra nullius. Acquisitive prescription. Acquisition of territory results where there is long and continued possession. Other Principles Insufficient for the Acquisition of Territory: Estoppel. Estoppel is a general principle of international law which precludes another claimant from acquiring title. Discovery; inchoate title. Discovery alone gives the claimant merely an inchoate title. This must concur with effective occupation for there to be acquisition of property (Island of Palmas Case). Note that territory must be terra nullius. Possession. Possession is a strong evidence of title when coupled with effective occupation, but is not enough on its own for the acquisition of title. Note that possession requires animus possedendi. Constructive possession. There is constructive possession of the whole island or archipelago where a coast of the island, or an island/islet/rock of the archipelago have been actually occupied by

Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia), (1999)
A treaty between the colonial powers Germany and UK was entered into delimiting Southwest Africa. Later, Namibia became independent from Germany; and Botswana was formed in the former British territory. The dispute relates to the location of the boundary around the Kasikili/Sedudu Island between Namibia and Botswana. Uti Possidetis Juris principle. There is no agreement in the treaty as to the exact boundary line; and neither is there proof of effective occupation by Namibia and Botswana. In the absence of these circumstances, Namibia and Botswana, as successors, must respect the boundary set by the colonial powers.

El Salvador v. Honduras, with Nicaragua intervening, (1992)
El Salvador and Honduras became independent states after the disintegration of the Spanish empire in Central America. Even before their independence, Spanish Central America had overlapping administrative boundaries. Parties seek to have the boundaries determined. Uti Possidetis Juris principle. The principle will be used where the colonial boundaries are not clear as is in this case where lack of sophisticated means of surveying led to cases of overlapping administrative boundaries.

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another state. There can be no constructive possession where the occupied island is so far distant from the others in the group. Contiguity. Contiguity merely raises a presumption of occupation. Conquest. Conquest is a means by which territory can be acquired by an enemy through the complete and final subjugation of the territory, coupled with the enemy͛s declaration of its intention to conquer. Conquest was once an accepted norm, but is now illegal.

all foreign vessels from its ports. If the foreign vessel is merely passing through, the flag State has jurisdiction (French rule). If the vessel is docked, the coastal State may exercise jurisdiction (English rule).

Nicaragua v. US (1986)
US military laid mines in Nicaraguan internal waters and in its territorial sea and along Nicaraguan ports causing material damage to Nicaragua and innocent vessels. The US Government did not issue any public and official warning to international shipping of the existence and location of the mines.

2. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)8

a.

INTERNAL WATERS

Internal waters are all waters landwards from the baseline of the territory (rivers, lakes, bays, etc). Sovereignty over these is the same in extent as sovereignty over land, and is not subject to the right of innocent passage. However, in Saudi Arabia v. Aramco the arbitrator said that according to international law ports of every state must be open to foreign vessels and can only be closed when vital interests of the state so requires. But according to Nicaragua v. US, a coastal state may regulate access to its ports. Bays are well-marked indentations whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. To be considered a bay, the area of the indentation must be as large as, or larger than, that of a semi-circle whose diameter is a line drawn across the mouth of that indentation (the semi-circle test). Historic bays are those which are treated by the coastal state as internal waters on the basis of historic rights acknowledged by other states. * Sir: foreign vessels without a right to call on ports UNLESS there is a Treaty of Commerce, Friendship & Navigation. For internal waters, the coastal State has absolute territorial jurisdiction, thus it may exclude
8

Internal waters. Coastal State͛s Sovereignty extends to internal waters and airspace. Coastal State͛s Laws apply in Internal Waters. The laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject to the sovereignty of the coastal State. The position is similar as regards mines placed in the territorial sea. It is therefore the sovereignty of the coastal State which is affected in such cases. It is also by virtue of its sovereignty that the coastal State may regulate access to its ports. On the other hand, it is true that in order to enjoy access to ports, foreign vessels possess a customary right of innocent passage in territorial waters for the purposes of entering or leaving internal waters. Freedom of Navigation hampered. Such is guaranteed, first in the exclusive economic zones and beyond territorial waters and on the high seas, it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation. If this right of access to the port is hindered by the laying of mines by another State, what is infringed is the freedom of communications and of maritime commerce. At all events, it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internal waters, and the right of free access enjoyed by foreign ships. b. TERRITORIAL SEA

Thanks to Gem, Carol, Ben, and Jerome for this part. Also, the Art. 6 referred to in some of the cases is Art. 6 of the Geneva Convention on the Continental Shelf.

This is the belt of sea outwards from the baseline and up to 12 nautical miles beyond. Regarding its width, the original rule was the ͞cannon shot͟ rule, where the width was measured in terms of the

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range of shore-based artillery. This later became the 3-mile rule. Under the UNCLOS, the rule is now 12 miles. Take note, however, that where the application of the 12-mile rule to neighboring littoral states would result in overlapping, the dividing line is instead a median line equidistant from the opposite baselines. But this equidistant rule does not apply where historic title or other special circumstances require a different measurement. The extent of the territorial sea depends on the baseline. The baseline is the low-water line along the coast as marked on large scale charts officially recognized by the coastal State. The width of the territorial sea is measured from this line. There are 2 ways of drawing the baseline. The ͞normal baseline͟ is drawn following the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State. This line follows the curvatures of the coast and therefore would normally not consist of straight lines. There is no fixed norm for determining this low-water line or mark, but the Anglo-Norwegian Fisheries Case suggested using the mean between the high and low tides. Archipelagic states instead use ͞straight baselines.͟ These are drawn connecting selected points on the coast without appreciable departure from the general shape of the coast. This was the method used in the Anglo-Norwegian Fisheries Case, and is now in Art. 7(1) of UNCLOS. This article provides that straight baselines may be used where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity. Some guidelines to be observed in using this method: 1. the drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast 2. the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters 3. the baselines shall not be drawn to and from low-tide elevations 4. take account of economic interests peculiar to the region concerned, the reality and importance of which are clearly evidenced by long usage 5. this method may not be applied in such a manner as to cut off the territorial sea of another State from the high seas or an EEZ (ex. Singapore) The sovereignty of the coastal state over its territorial sea, the airspace above it, and the seabed is the same as its sovereignty over its land territory. However the sea is subject to the right of innocent passage by other states. The rule on innocent passage applies to ships and aircrafts. Submarines however must surface. Innocent passage is navigation through waters in an expeditious and continuous manner, which is not prejudicial to the peace, good order, or security of the coastal state. Some examples of passage which is not innocent are fishing, polluting, weapons practice, spying, research activities, and any other activity not having a direct bearing on passage. Coastal states do have rights of protection, which is the unilateral right to verify the innocent character of passage. Thus, they may take necessary steps to prevent not innocent passage, and they may temporarily suspend the right of innocent passage if this is essential for the protection of its security. Take note that islands and rocks which cannot sustain human habitation or economic life have their own territorial sea. Within the territorial sea, the flag state has criminal and civil jurisdiction. However, there are exceptions. With respect to criminal jurisdiction, the coastal state can exercise its criminal jurisdiction in

connection with any crime committed on board the ship during its passage if: 1. the consequences of the crime extend to the coastal state 2. the crime disturbs the peace of the country or good order of the territorial sea 3. the ship͛s master or diplomatic agent/consular officer of the flag state requested the assistance of the local authorities 4. it is necessary to suppress illicit traffic in narcotic drugs. The coastal state may exercise its civil jurisdiction by levying execution or arresting the ship only in respect of obligations or liabilities assumed or incurred by the ship itself in the course of or for the purpose of its voyage through the waters of the coastal state.

Anglo-Norwegian Fisheries Case (1951)
In 1935 Norway delimited a certain fisheries zone which was exclusively reserved to its nationals. This delimitation, using straight baselines, was opposed by the UK. The coastal zone involved has a distinctive configuration (long and very broken). The Court upheld this Norwegian delimitation. Use the low-water mark. For the purpose of measuring the breadth of the territorial sea, it is the low-water mark as opposed to the highwater mark, or the mean between the two tides, which has generally been adopted in the practice of States. This criterion is the most favourable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory. Straight baselines method. This method consists of selecting appropriate points on the low-water mark and drawing straight lines between them. This has been validly done, not only in the case of well-defined bays, but also in cases of minor curvatures of the coast line where it was solely a question of giving a simpler form to the belt of territorial waters. Norway͛s baselines were valid. But the Norwegian delimitation is still subject to certain principles which make it possible to judge the delimitation͛s validity under international law. The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law. Certain basic considerations inherent in the nature of the territorial sea bring to light certain criteria which, though not entirely precise, can provide courts with an adequate basis for their decisions, which can be adapted to the diverse facts in question. Among these some reference must be made to the close dependence of the territorial sea upon the land domain. It is the land which confers upon the coastal State a right to the waters off its coasts. It follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast. Another fundamental consideration is the more or less close relationship existing between certain sea areas and the land formations which divide or surround them. The real question raised in the choice of base-lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters. This idea, which is at the basis of the determination of the rules relating to bays, should be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway. The last consideration is that of certain economic interests peculiar to a

"Mean high water" . On this basis the Court found that El Tigre appertained to Honduras and Meanguera and Meanguerita to El Salvador. whereby the three coastal States had succeeded to communal sovereignty. According to the Court. Federal government owns and has exclusive jurisdiction over such beyond 3 miles seaward from the coastline."the line of ordinary low water along that portion ." as that term is used in paragraph 6 of Article 7 of the Convention. State of California and the Federal government are trying to determine who owns and has jurisdiction over the subsoil. which is above the level of mean lower low water but not above the level of mean high water. ultimately.11549 International Feet). (d) Semi Circle Test Any other bay (defined as a well-marked coastal indentation having such penetration. None of the islands had been terra nullius in 1821. the waters of the Gulf had never been divided or otherwise delimited after the independence of the three coastal States. "Mean lower low water" . no boundaries were delimited in the Gulf and thus the waters had remained undivided. and waters between islands and the mainland are not per se inland waters. Sustained the California case. In contrast to the frontier delimited on land. Border incidents led to mounting tension between El Salvador and Honduras and. U. However.a naturally-formed area of land surrounded by water at mean lower low water. v.the average elevation of all the high tides occurring over a period of 18.6 years. which is neither defined in the 1958 Convention nor in the Convention of 1982.10333 U. Considering the dimensions and proportions. landward of a straight line across its mouth. Thus. Louisiana (1969) The issue is about the correct definition of ͞Inland Waters͟. Thus. Jurisdiction. El Salvador v. "Inland waters" (Par. Until then. Court held that Gulf of Fonseca was a case of "historic waters". 2(b) Convention on the Territorial Sea and the Contiguous Zone) waters landward of the baseline of the territorial sea and includes: (a) Any river or stream flowing directly into the sea. with the exception of a three mile zone established unilaterally by each coastal State. landward of a straight line not over 24 geographical miles long. California owns and has exclusive jurisdiction over such within 3 miles or the tidelands along its coast (defined as the shore of the mainland and of islands. California case. (b) Any port. landward of its outermost permanent harbor works and a straight line across its entrance. to an armed conflict in 1969 Islands of the Gulf of Fonseca. drawn within the bay so as to enclose the greatest possible amount of water. and having an area. landward of a straight line across its entrance or. sovereignty over the islands had been achieved according to the uti possidetis juris principle (colonial boundaries are continually adopted). Court adopts the definitions in the International Convention on the Territorial Sea and the Contiguous Zone: US v.(Art. the Central American Court viewed the Gulf of Fonseca as a condominium resulting from the succession of the three States from Spain in 1821. Nicaragua Intervening (1992) The legal status of the islands located in the Gulf of Fonseca became an issue of dispute. ͞Coastline͟ . the question of the land frontier followed in 1861. To resolve such. Thus.S.S. and (b) The line marking the seaward limit of inland waters. Gulf of Fonseca = Juridical Bay under UNCLOS and Historical Bay under Customary International Law. defined essentially as a bay over which the United States has traditionally asserted and maintained dominion with the acquiescence of foreign nations. Survey Feet or approximately 6076. This includes modifications by natural or artificial means. the communal succession for the three States was a logical consequence of the uti possidetis juris principle with regard to the sovereignty of the Gulf. if the entrance is more than 24 geographical miles wide. in proportion to the width of its entrance.S. United States vs. the decision of the Central American Court underlined the fact that at the time of independence.the average elevation of all the daily lower low tides occurring over a period of 18. including islands within the bay. the application of this principle suffered from the lack of documents that might have testified clearly the appertainance of the islands to one administrative district or the other. between the line of mean high water and the line of mean lower low water).6 years. or the sum of such closing lines if the bay has more than one entrance). 8 of the Convention on the Territorial Sea and the Contiguous Zone) (a) The line of mean lower low water on the mainland.a naturally-formed area of land surrounded by water. Court looked at the Central American Court of Justice of 1917 conclusion that the Gulf of Fonseca effectively constituted a "closed sea" belonging to all three coastal States communally. Thus the Court was forced to concentrate more on the behaviour of the parties with regard to the islands after 1821. Definitions. Honduras. the Court discusses the definition of relevant maritime terms. and on low-tide elevations lying wholly or partly within three geographical miles from the line of mean lower low water on the mainland or on an island. the Gulf would today be regarded as a juridical bay in accordance with UNCLOS. argues that the definitions of inland waters contained in the International Convention on the Territorial Sea (ICTS) should prevail over Louisiana͛s contention that it should be the ͞Inland Water Line͟ (IWL) fixed by the Commandant of the Coast Guard in 1895. the date of independence. The ICTS definition prevails and it is as follows . at least as great as the area of a semicircle whose diameter equals the length of the closing line across the entrance of the bay. the reality and importance of which are clearly evidenced by long usage. California (1965) Case involves the interpretation of some terms used in the Submerged Lands Act. From this fact the Court concluded that its decision had to be taken on the basis of customary international law. An estuary of a river is treated in the same way as a bay. the Gulf was not a single State bay but constituted a so called historical bay. "Geographical mile" . which is above the level of mean high water.UP Law B2009 Reviewer (Karichi Edition)   Page 31 of 130 region. the Gulf had been a single State bay belonging to Spain alone. However. seabed of the continental shelf and the resources located therein along the California.waters between islands. on islands. as to contain landlocked waters.a distance of 1852 meters (6076. Court sustains the adoption of the ICTS definitions in the U. and includes the outermost permanent harbour works that form an integral part of the harbour system "Island" . ͞Roadsteads͟ . (c) Any "historic bay. "Low-tide elevation" .

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of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." Baseline. The line marking the seaward limit of inland waters, is also to be drawn in accordance with the definitions of the Convention on the Territorial Sea and the Contiguous Zone.͟ Historic title. Whether particular waters are inland has depended on historical as well as geographical factors but as we said in United States v. California, it is generally agreed that historic title can be claimed only when the "coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations." 3 Zones of Navigable Seas under General Principles of IL Inland, or internal Marginal, or High seas waters territorial, sea
Nearest to the nation's shores are its. Thes e are subject to the complete s overeignty of the nation, as muc h as if they were a part of its land territory, a nd the coastal nati on has the privilege even to exclude foreign vess els altogether. Beyond the inland waters, a nd measured from their seaward edge, is a belt known as the. Within it the coastal na tion may exercise extensive control but cannot deny the right of innoc ent passage to foreign nations Outside the territorial sea, which are international waters not subject to the domini on of a ny single nation.

Bordering states have the following duties: 1. not to impede the right of transit passage 2. to give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge 3. not to suspend transit passage. Ships and aircraft exercising the right of transit passage have the following duties: 1. to proceed without delay through or over the strait 2. refrain from any threat or use of force against the sovereignty, territorial integrity, or political independence of States bordering the strait, or in any manner in violation of the principles in the UN Charter 3. refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless necessary due to force majeure or distress 4. to comply with the other provisions of UNCLOS. Also, foreign vessels may not carry out research and survey activities without the prior authorization of the bordering States. Take note that these duties (of bordering States and foreign vessels) are also applicable to archipelagic sea lanes passage. States alongside the straits however are able to regulate navigation and other aspects of passage.

Stable Coastline Policy ʹ not convincing enough. The policy in favor of a certain and stable coastline, strong as it is, would necessarily outweigh countervailing policy considerations under the Submerged Lands Act. We recognized in California the desirability of "a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations." c. STRAITS

Corfu Channel Case (1949)
A squadron of British warships, the cruisers Mauritius and Leander, and the destroyers Saumarez and Volage, left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. Several ships struck a mine and were damaged. UK sues People's Republic of Albania Albania͛s failed its Duty ʹ it is liable. Obligation incumbent upon Albanian authorities consisted in notifying for the benefit of the shipping in general, the existence of a minefield in Albanian territorial waters and in warning the British warships of the imminent danger to which the minefield exposed them. BASIS of such an obligation: 1. elementary considerations of humanity, even more exacting in peace than in war 2. the principle of freedom of maritime communication 3. every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. Albania was aware of the minelaying since the geography of the strait easily allowed Albanian lighthouse watchers to view such activities. Innocent passage through straits is a right recognized by international law. The decisive criterion is its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation. The nature of the Channel satisfies this criterion. It has been a useful route for international maritime traffic. A total number of 2, 884 ships have passed through the Channel in a period of 1 year and 9 months. Passage through it therefore cannot be prohibited by a coastal State in time of peace. Combat formation determines if a passage is innocent. Sir Roque says: International straits are subject to non-suspendible rights of innocent passage. d. ARCHIPELAGOS

Straits used for international navigation (to navigate between one part of the high seas or an EEZ and another part of the high seas or an EEZ) are under the purview of UNCLOS, but the legal regime in such straits in which passage is regulated in whole or in part by longstanding international conventions in force specifically relating to such straits is not affected. Through these waters, ships and aircraft of all countries are allowed ͞transit passage,͟ as long as they proceeded without delay and without threatening the bordering states. Transit passage is the exercise of the freedoms of navigation and overflight solely for the purpose of expeditious and continuous transit (thus they must proceed without delay) of the strait. During transit passage, foreign ships, including maritime scientific research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorization of the bordering states. Transit passage is inapplicable in three instances: 1. if there exists through the strait a route through the high seas or an EEZ of similar convenience, in which case the freedoms of navigation and overflight would apply 2. if the strait is formed by an island of a state bordering the strait and its mainland, and there exists seaward of the island a route to the high seas or EEZ of similar convenience, in which case the right of innocent passage would apply 3. if the strait is between a part of the high seas or EEZ and the territorial sea of another state, in which case the right of innocent passage would apply.

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Archipelagic states are those which are made up wholly of one or more archipelagos. For these states, the straight baselines are drawn between the outermost points of the outermost islands, provided these points are sufficiently close to one another and that within such baselines are included the main islands and an area in which the water area to land area ratio is between 1:1 and 9:1. All waters inside these baselines are archipelagic waters. Some guidelines in drawing the baselines: 1. the length of such baselines shall not exceed 100 nautical miles, except that up to 3% of all the baselines may reach up to 125 miles 2. the drawing of the baselines shall not depart to any appreciable extent from the general configuration of the archipelago 3. such baselines shall not be drawn to and from low-tide elevations 4. these shall not be applied in such a manner as to cut off from the high seas or EEZ the territorial sea of another State While archipelagic states have sovereignty over a sea area enclosed by the baselines, all other states enjoy the right of innocent passage through designated sea lanes. Foreign ships and aircraft also have the right of archipelagic sea lanes passage, which refers to continuous, expeditious, and unobstructed passage in sea lands and air routes through or over the archipelagic waters and the adjacent territorial sea of the archipelagic state in transit between one part of the high seas or an EEZ and another part of the high seas or an EEZ (similar to transit passage). An archipelagic state shall respect existing agreements with other states and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states in certain areas, including the maintenance and replacement of submarine cables, falling within archipelagic waters. Take note that under UNCLOS, the waters inside the archipelagic baselines are called archipelagic waters. And while archipelagic states may designate sea lanes and air routes suitable for continuous and expeditious passage over these archipelagic waters, if the archipelagic state does not designate such lanes, the right of archipelagic sea lanes passage may still be exercised through routes normally used for international navigation. This is criticized as being unduly burdensome for archipelagic states. (Archipelagic waters also inside baselines, like internal waters) Under the Philippine Constitution, all waters connecting the islands are internal waters. Thus when the country ratified the UNCLOS, a declaration was added, providing that: ͞The signing of the Convention͙ shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution͙ Such signing shall not in any manner affect the sovereign rights of the Republic͙ under and arising out of the Treaty of Paris͙ and the Treaty of Washington͙ The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence, and security͙.͟ e. THE CONTIGUOUS ZONE

immigration, or sanitation authority over its territorial waters or territory and to punish such infringement. Take note that the power of control does not change the nature of the waters. Beyond the territorial sea, the waters are high sea and not subject to the sovereignty of the coastal state. Sir Roque says: This was added as a response to ships which would linger in areas beyond the State͛s jurisdiction, thus beyond the State͛s criminal jurisdiction, but would do acts inimical to the coastal State. Remember that the jurisdiction is limited; beyond the 4 areas, follow the regime of the EEZ. Take note that this is the only optional regime. f. THE CONTINENTAL SHELF

This refers to (a) the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth allows exploitation; and (b) the seabed and subsoil of areas adjacent to islands. Under specified circumstances the continental shelf can extend up to a distance of 350 miles. The coastal state has the right to explore and exploit its natural resources, to erect needed installations, and to erect a safety zone over its installations with a radius of 500 meters. These rights do not depend on occupation, effective or notional, or any express proclamation. This right does not affect the right of navigation of others. Moreover, this right does not extend to non-resource material in the shelf area such as wrecked ships and their cargoes. Coastal states also have the right to regulate, authorize, and conduct marine scientific research on the continental shelf. Take note that artificial islands or installations are not islands under UNCLOS, though coastal states may establish safety zones and prescribe safety measures around them. Islands do have their own continental shelves. Sir Roque says: Compare the rights of the coastal state for the EEZ (resources = all encompassing) and the continental shelf. For the latter, only for living resources permanently attached/sedentary.

North Sea Continental Shelf Cases (1969)
This case concerned the delimitation of the continental shelf in the North Sea, which involved Denmark, the Netherlands, and Germany. Denmark and the Netherlands both wanted to apply the equidistance principle, while Germany opposed as this would disproportionately reduce its area, due to the concave German coastline. Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical. Inherent right to territory. The rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared but does not need to be constituted.

This is an area of water not exceeding 24 nautical miles from the baseline. It thus extends 12 nautical miles from the edge of the territorial sea. The coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs, fiscal,

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Furthermore, the right does not depend on its being exercised. It follows that the notion of apportioning an as yet undelimited area, is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement. Equidistance method not obligatory. It has never been doubted that the equidistance method of delimitation is a very convenient one. Yet this does not suffice to convert what is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise, or in which 'special circumstances' cannot be shown to exist. Appurtenance (of the continental shelf) to a State т Proximity. Thus the question of which parts of the continental shelf 'adjacent to' a coastline bordering more than one State fall within the appurtenance of which of them, remains to this extent an open one, not to be determined on a basis exclusively of proximity. Even if proximity may afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in all circumstances, the most appropriate one. More fundamental: natural prolongation or continuation of land territory or domain or land sovereignty of the coastal state, into & under the high seas, via the bed of its territorial sea which is under full sovereignty. Submarine areas do not really appertain to the coastal State because they are near it. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea. Thus whenever a given submarine area does not constitute a natural extension of the land territory of a coastal State, even though that area may be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State; or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it. Opposite v. Adjacent. For opposite States the natural prolongations may meet and overlap, and can only be delimited by a median line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved. This type of case is different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it. Whereas a median line divides equally between 2 opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them, a lateral equidistance line often leaves to 1 of the States concerned areas that are a natural prolongation of the territory of the other. The distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the localities where the main continental shelf areas lie further out. There is also a direct correlation between the notion of closest proximity to the coast and the sovereign jurisdiction which the coastal State is entitled to exercise and must exercise, not only over the seabed underneath the territorial waters but over the waters themselves, which does not exist in respect of continental shelf areas where there is no jurisdiction over the superjacent waters, and over the seabed only for purposes of exploration and exploitation.

Delimitation must be by agreement, arrived at in accordance with equitable principles: (a) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it; (b) the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied; for this purpose the equidistance method can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved; (c) the continental shelf of any State must be the natural prolongation of its land territory and must not encroach upon what is the natural prolongation of the territory of another State. Inequity of the equidistance method, in certain geographical circumstances: (a) The slightest irregularity in a coastline is automatically magnified by the equidistance line as regards the consequences for the delimitation of the continental shelf. Thus it has been seen in the case of concave or convex coastlines that if the equidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity. (b) Where there is no outer boundary to the continental shelf, it happens that the claims of several States converge, meet and intercross in localities where, despite their distance from the coast, the bed of the sea still unquestionably consists of continental shelf. A study of these convergences shows how inequitable would be the apparent simplification brought about by a delimitation which, ignoring such geographical circumstances, was based solely on the equidistance method. Can use different methods. No objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. But here, there are 3 States whose North Sea coastlines are in fact comparable in length and which, have been given broadly equal treatment by nature except that the configuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment equal or comparable to that given the other two. An inequity is created merely because one coastline is roughly convex and the other concave. It is not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number of States, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result. Criteria to consider: 1. Geology. The continental shelf is an area physically extending the territory of most coastal States into a species of platform. The appurtenance of the shelf to the countries in front of whose coastlines it lies is a fact, and it can be useful to consider the geology

Equitableness of result is primary. relative economic positions of the Parties. it would be conferring on the equidistance method the status of being the only method the use of which is compulsory in the case of opposite coasts. Libya v. Geography. Libya͛s coast is significantly larger than that of Malta. The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of this legal regime. The concepts of natural prolongation and distance are therefore not opposed but complementary. a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. Factors which weren͛t considered in this case: landmass. or to the courts. but is silent as to the method to be followed to achieve it. or to reduce very irregular coastlines to their truer proportions. it must first be clearly established what features do in fact constitute such extensions. All that is needed is to refer to the undertakings entered into by the coastal States of that sea with a view to ensuring the most efficient exploitation or the apportionment of the products extracted. Unity of any deposits. The two institutions . Proportionality is considered. these being measured according to their general direction in order to establish the necessary balance between States with straight.UP Law B2009 Reviewer (Karichi Edition)   Page 35 of 130 of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation. security considerations. the principle that although all States are equal before the law and are entitled to equal treatment. Although there can be a continental shelf where there is no EEZ. The Convention sets a goal to be achieved. Take note that the median line drawn is only provisional. which in spite of its physical origins has throughout its history become more and more a complex and juridical . such as distance from the Coast. Italy (north). Thus the choice of the criterion and the method to be used to arrive at a provisional result should be made in a manner consistent with the concepts underlying the attribution of legal title. nor does it seek to make equal what nature has made unequal. to endow this standard with specific content. and the principle that there can be no question of distributive justice. to achieve an equitable result in a situation in which the equidistance line is prima facie the appropriate method. which may call for a correction of the initial results. to the south of Italy and to the north of Libya. and it is left to States themselves. and since it is possible to exploit such a deposit from either side. Malta (1985) This concerned the delimitation of the continental shelf between Libya and Malta. irrespective of the physical nature of the intervening sea-bed and subsoil. The law applicable to claims relating to continental shelves located less than 200 miles from the coasts of the States on a criterion of distance from the Coast or on the principle of adjacency as measured by distance. Since the land is the legal source of the power which a State may exercise over territorial extensions to seaward. This does not mean that the concept of the continental shelf has been absorbed by that of the EEZ. one of the relevant circumstances to be considered for the delimitation of the continental shelf of a State is the legally permissible extent of the EEZ appertaining to that same State. Delimitation process: 1. 3. there cannot be an EEZ without a corresponding continental shelf. It follows that the distance criterion must now apply to the continental shelf as well as to the EEZ.continental shelf and EEZ ʹ are linked together in modern law. 4. It restricts itself to setting a standard. since they may have a weight in the assessment of the equities of the case which it would be proper to take into account and to reflect in an adjustment of the equidistance line. the rights which the EEZ entails over the sea-bed of the zone are defined by reference to the regime laid down for the continental shelf. the principle of respect due to all such relevant circumstances. and the principle of equality. Examination of the provisional solution in light of the requirements derived from other criteria. in order to achieve an equitable solution. The choice and application of the appropriate technical methods would be a matter for the parties. is the most judicious manner of proceeding with a view to the eventual achievement of an equitable result. Some equitable principles: the principle that there is to be no question of refashioning geography. Relation to EEZ & legal basis of continental shelf rights. all relevant circumstances must be examined. RE: UNCLOS. To achieve this purpose. Under existing law. Were the Court to treat it as final. Although the institutions of the continental shelf and the EEZ are different and distinct. Greece (west) and Libya (south). "equity does not necessarily imply equality". Reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines. Since the rights enjoyed by a State over its continental shelf would also be possessed by it over the sea-bed and subsoil of any EEZ which it might proclaim. 2. which are common to both concepts. is in part defined by distance from the shore. What this means is that where the continental margin does not extend as far as 200 miles from the shore. or compensating for the inequalities of nature. it does however signify that greater importance must be attributed to elements. 2. by way of a provisional step. concept. it must be demonstrated that the equidistance method leads to an equitable result in the case in question. The Mediterranean is bordered by Tunisia (east). the result to which the distance criterion leads must be examined in the context of applying equitable principles to the relevant circumstances. Also remember that. and those with markedly concave or convex coasts. The delimitation of a continental shelf boundary must be effected by the application of equitable principles in all the relevant circumstances in order to achieve an equitable result. The principle is that the land dominates the sea. Make a provisional delimitation by using a criterion and a method both of which are clearly destined to play an important role in producing the final result. the related principle of non-encroachment by one party on the natural prolongation of the other (the coastal State enjoys sovereign rights over the continental shelf off its coasts to the full extent authorized by international law in the relevant circumstances). the tracing of a median line between those coasts. Malta is a group of islands situated in the Mediterranean. it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. What the Court intended was proportionality was to be used as a means of identifying and then correcting the kind of distortion that could arise from the use of a method inapt to take adequate account of some kinds of coastal configuration. In this delimitation between opposite coasts. Yet it frequently occurs that the same deposit lies on both sides of the line dividing a continental shelf between two States. natural prolongation. which provided that the delimitation of the continental shelf be effected by agreement on the basis of international law.

if the ICJ lets the line run parallel to the island coastline that would be giving the islands too much weight. Sir said that the method of half effect could be applied. The delimitation is to be effected in accordance with equitable principles considering all relevant circumstances.͟ (Court did not decide on this issue since it had no jurisdiction but I think Sir Harry agreed with Turkey͛s theory since based on the map. The initial delimitation line indicated by the ICJ will therefore extend from the outer limit of the territorial sea until its intersection with the parallel of latitude of the point on the coast of the Gulf of Gabes. Under Article 6 the equidistance principle ultimately possesses an obligatory force which it does not have in the same measure under the rules of customary law. wasn͛t considered by Tunisia v. but also the low-tide elevations which. one giving to the island the full effect attributed to it by the delimitation method in use. ICJ has no jurisdiction since Turkey did not accept such jurisdiction in the Rome Communique. The first step should be to determine the course of the median line within the Channel. two States is adjacent but because of the change in direction of the coast of Tunisia it seems opposite at some point. The delimitation line actually adopted is then drawn between the first two lines. while they do not. so principle of natural prolongation cannot be used. Guinea v Guinea-Bissau (1985) The case regarding the marine delimitation was removed from the list of cases of the ICJ because both parties mutually dropped the case. and clarify the practical method for the application of these principles so they can delimit without difficulty. Opposite states. as though it did not exist. In defining the angulation of the initial line. The relationship of "opposite" or "adjacent" States is nothing but a reflection of the geographical facts. It is the combined effect of the side-by-side relationship of the two States and the prolongation of the lateral boundary for great distances to seawards which may be productive of inequity and is the essence of the distinction between "adjacent" and "opposite" coasts situations. Note that in this case the land territory of the . In determining the angulation of the second like the existence of the Kerkennah Islands (Tunisia) should be considered. a lateral equidistance line extending outwards from the coasts of adjacent States for long distances may result in an inequitable delimitation by reason of the distorting effect of individual geographical features. gives particular expression to a general norm that. and the relevant circumstances which characterize the area. Aegean Sea Continental Shelf Case (1978) Though the Court was primarily focused on the issue of jurisdiction in this case. in principle. The distinction drawn between the two geographical situations is one derived not from any legal theory but from the very substance of the difference between the two situations. However. The Court has to take into account not only the islands. failing agreement. In our discussion. Their main reason was that both parties agreed on establishing an international agency for the join exploitation of the maritime zone in question. The technique involves drawing two delimitation lines. The Kerkennah Islands is surrounded by islets and low-tide elevations. a geographical feature. in effect. The area to be delimited constitutes a single continental shelf as the natural prolongation of both States. the boundary between States abutting on the same continental shelf is to be determined on equitable principles. or as bisector of the angle which they make with each other. decide according to equitable principles.UP Law B2009 Reviewer (Karichi Edition)   Page 36 of 130 Due to the great difference in length of the coasts and the general geographical context (the Maltese islands appear as a relatively small feature in a semi-enclosed sea). the delimitation line must be adjusted so as to lie closer to the coasts of Malta. But the equidistance-special circumstances rule means that the obligation to apply the equidistance principle is always one qualified by the condition "unless another boundary line is justified by special circumstances". half-effect must be used. Anglo-French Arbitration (1979) This involved the delimitation of the continental shelves of France and UK in the North Sea. Turkey͛s Theory: ͞islands in question are mere protuberances of the Turkish continental shelf and have no continental shelf of their own. Within the area with which the Court is concerned. The area is delimited by two lines. Consequently. given all relevant circumstances. as do islands. The Equidistance-Special Circumstances method. either in such a way as to divide equally the area between them. to grant continental shelves would encroach in the territorial sea of Turkey) The issue of whether these islands have their own continental shelf concerns matters of entitlement (do the island deserve shelves). In this case. the change in direction of the coast is a fact which must be taken into account. and the equidistance line between them lies broadly west to east. and the other disregarding the island totally. as well as the new accepted trends in the Third Conference on the Law of the Sea. The Method of Half-effect. First step:Tthe legal frame to be used is that of delimitation between ͞opposite͟ States. No jurisdiction. in order to ensure the achievement of an equitable solution. the question whether the use of the equidistance principle or some other method is appropriate for achieving an equitable delimitation is very much a matter of appreciation in the light of the geographical and other circumstances. delimitation (whats the area of these shelves) and territorial status (will it encroach on established national boundaries) Sir Roque says: In this case the principles in the Sipadan case and Eritrea-Yemen Arbitration would apply. do enjoy some recognition in international law for certain purposes. have any continental shelf of their own. be the median line equidistant from the respective coasts. and is equitable. the relevant issue is whether or not certain islands under Greek sovereignty are entitled to a continental shelf of their own and entitle Greece to call for the boundary to be drawn between those islands and the Turkish Coast. or possibly by treating the island as displaced toward the mainland by half its actual distance therefrom. the Court took note of the existence of the line employed de facto by each Party dividing their petroleum concessions. Take note that the Hurd DeepHurd Deep Fault Zone. the coasts of the Parties are opposite to each other. The role of the "special circumstances" condition is to ensure an equitable delimitation and the combined "equidistancespecial circumstances rule". the Court considered the effect of certain geological features to the delimitation. so that its adjustment can be satisfactorily and simply achieved by transposing it in an exactly northward direction. Libya Libya and Tunisia requested the ICJ to determine what principles and rules of international law may be applied for the delimitation of the area of the continental shelf appertaining to Libya and to that of Tunisia. Hence. Some effect must be attributed to it. Throughout the English Channel where the coasts of France & the UK are opposite each other the boundary should. As for the second line. This line meets the requirements of the test of proportionality. Whereas in "opposite" States a median line will normally effect a broadly equitable delimitation.

Similarly. The application of that principle in such a case has to be appreciated in the light of all the relevant geographical and other circumstances. The appropriateness of the equidistance or any other method for the purpose of effecting an equitable delimitation in any given case is always a function or reflection of the geographical and other relevant circumstances of the particular case. The question is what areas of continental shelf are to be considered as legally the natural prolongation of the Channel Islands rather than of France. Legal framework used. The question is whether the Channel Islands should be given the full benefit or the application of the principle of natural prolongation in the areas to their north and northwest or whether their situation close to the mainland of France requires. and that their geographical relation to each other vis-à-vis the continental shelf to be delimited is one of lateral rather than opposite coasts. Features considered. Yet. The question of the appurtenance to the Channel Islands of the areas of continental shelf extending to their north and north-west is not therefore resolved merely by referring to the principle of natural prolongation. 6 to imply that in situations failing under paragraph 1 the virtues of the equidistance principle as a method of effecting an equitable delimitation are in any way superior to those which it possesses in situations falling under paragraph 2. as a "special circumstance" justifying a delimitation other than the median line. In international law. as well as on any relevant considerations of law and equity. Characteristics of the area: approximate equality of the mainland coastlines. the coasts or the two countries. The continental shelf of the Atlantic region is not confined within the arms of a comparatively narrow channel but one extending seawards front the coasts of the two countries into the open spaces of the Atlantic Ocean. In consequence. Another is that the UK͛s coastal frontage project further into the Atlantic than that of France. The Channel Islands (not constitutionally part of the UK. but may be subject to qualification. this will result in a substantial diminution of the area of continental shelf which would accrue to France. the equitable character of the delimitation results not from the legal designation of the situation as one of "opposite" States but from its actual geographical character as such. Factors not considered: navigational defence and security interests in the region. Features of the Channel considered in this case. This means that the scope and the conditions for its application are not determined exclusively by the physical facts of geography but also by legal rules. The principle of natural prolongation of territory is neither to be set aside nor treated as absolute in a case where islands belonging to one State are situated on continental shelf which would otherwise constitute a natural prolongation of the territory of another State. Principle of natural prolongation. prima facie. Any ground of equity is to be looked for in the particular circumstances of the case and in the particular equality of the two States in their geographical relation to the continental shelf of the Channel. if not always to the same extent. since their continental shelf must be the subject of a second and separate delimitation. It is also common ground that. The actual coastlines of the two countries abutting on the continental shelf to be delimited are comparatively short. a small island would block the natural prolongation of the territory of the nearby mainland in the same way. If this conclusion is tested by applying the equidistance-special circumstances rule. the areas of continental shelf to be delimited lie off. the southern limit of the continental shelf held by the Court to be appurtenant to the French Republic in this region to the south of the mid-Channel median line. if the Channel Islands are left out of account. but direct dependencies of the British Crown which were treated as part of the UK. Moreover. The legal framework is that of two opposite States one or which possesses island territories close to the coast of the other State. as a larger island. This fact appears to be. in the case of "adjacent" States it is the lateral geographical relation of the two coasts. which makes individual geographical features on either coast more prone to render .UP Law B2009 Reviewer (Karichi Edition)   Page 37 of 130 the Court given the essential geological continuity of the area (the Hurd Deep were just discontinuities in the seabed and subsoil which didn͛t disrupt the essential unity of the continental shelf). it is clear (given the special circumstances provision & emphasis on equitable principles) that the force of the cardinal principle of natural prolongation of territory is not absolute. resulting in equality of their geographical relation to the continental shelf of the Channel. The doctrine of the equality of States cannot be considered as constituting such an equitable ground (as this would have the effect of refashioning geography). rather than between. geologically the slight southwesterly trend of the continental shelf of the Channel extends westwards into the Atlantic region along the line of the Hurd Deep Fault Zone. vis-à-vis the Channel Islands. the concept of the continental shelf is a juridical concept which connotes the natural prolongation under the sea not of a continent or geographical land mass but of the land territory of each State. the presence of the Channel Islands must be considered. to maintain the appropriate balance between the two States in relation to the continental shelf as riparian States of the Channel with approximately equal coastlines. A further consequence is that the continental shelf extends to seawards of the coasts of the two countries for great distances. There is nothing in the language of Art. prima facie. some modification of the application of the principle in those areas. a circumstance creative of inequity and calling for a method of delimitation that in some measure redresses the inequity. In delimiting its course in the Channel Islands region the Channel Islands themselves are to be disregarded. the primary boundary between them shall be a median line. The essential continuity or the continental shelf of the English Channel and Atlantic region has been emphasized. when combined with a large extension of the continental shelf seawards from those coasts. since the UK was the responsible authority with regard to the continental shelf) are situated on the French side and within the arms of a gulf on the French coast. 6. the method adopted for delimiting the boundary must ensure that the delimitation accords with equitable principles. The two-fold solution with regard to Channel Islands: First. The principle of natural prolongation of territory cannot be said to require that the continental shelf to the north and northwest of the Channel Islands should be considered as automatically and necessarily appurtenant to them rather than to France. Another is France and the UK aren͛t the only States which abut on the Atlantic continental shelf. This has the tendency to make the UK coast obtrude upon the continental shelf situated to seawards of the more westerly facing coast of the French Republic in that region. not absolute. In short. Under Art. Under customary law. If the Channel Islands are given full effect. The presence of these islands in that particular situation disturbs the balance or the geographical circumstances which would otherwise exist between the Parties in this region as a result of the broad equality of the coastlines of their mainlands. on equitable grounds. if the force of the principle of natural prolongation of territory were absolute. Second step: to delimit a second boundary establishing. the boundary is to be the line which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. Principles of equity. in the absence of agreement and unless another boundary is justified by special circumstances.

management. Highly migratory species of fish and marine mammals are accorded special protection. lighthouses!!! WON ͞Greenland͟ as used in the documents of this period intended to include the East Coast because at that time. they must promote the objective of ͞optimum utilization͟ of the living resources. This method consists in delimiting the line equidistant between the two coasts. the method of delimitation adopted has been some modification or variant of the equidistance principle rather than its total rejection. of Greenland. maritime permits authority. instead of full. due to the separation of the 2 coasts by a wide expanse of sea. Coastal states have 2 primary obligations. they must grant access to other states. unknown ʹ Yes! An examination of the maps of the 17 and 18th centuries shows that the general features and configuration of the East coast of Greenland were known to the cartographers. or colonized area. Doctrine of ͞Sovereignty Actually Exercised͟. They must determine the allowable catch of living resources. and. by virtue of which Canada pursued. g. Just as it is not the function of equity in the delimitation of the continental shelf completely to refashion geography. This includes the duty to maintain and restore populations of harvested fisheries at levels which produce a maximum sustainable yield. and conduct marine scientific research in the EEZ. The doctrine developed due to the desire of coastal states for better conservation and management of coastal fisheries. Arguments: European Community͛s position . In this case. monopoly activity/grants. The appropriate method is to take account of the Scilly Isles as part of the coastline of the UK but to give them less than their full effect in applying the equidistance method. A special circumstance: the prolongation of the Scilly Isles (UK) some distance further westwards than the Ushant island (France). and cannot be justified by any means. without the use of the offshore island as a base-point. The delimitation of overlapping EEZs between adjacent states is determined by agreement. Modified equidistance method. and preservation of the resources found within the zone. the ships which hunted whales in the waters to the East of Greenland sighted the land at intervals and gave names to the prominent features which were observed. Coastal states also have the right to regulate.Spain argues that the term ͞conservation and management measures" must be interpreted in accordance with international law. "Greenland" as a geographical term was even more used in connection with the East coast than with the West coast. they must ensure through proper conservation and management measures that the living resources of the EEZ are not subject to over-exploitation.UP Law B2009 Reviewer (Karichi Edition)   th Page 38 of 130 the geometrical effects of applying the equidistance principle inequitable than in the case of "opposite" States. In a large proportion of delimitations. flying the Spanish flag) on the high seas in order to put a stop to the overfishing of Greenland halibut by Spanish fishermen. then shift the lines. authorize. In one instance. some actual exercise or display of such authority Examples: Tax collection. law making and enforcement Authority. Two elements each of which must be shown to exist: a. The provisions on the EEZ are both a grant of rights to and an imposition of obligations on coastal states relative to the exploitation. the area (Atlantic region) is considered as a case of opposite States. The EEZ is an area extending not more than 200 nautical miles beyond the baseline. a boundary giving half-effect to the island is then the line drawn midway between those two equidistance lines. the intention and will to act as sovereign b. The greater risk in these cases that the equidistance method may produce an inequitable delimitation thus also results not from the legal designation of the situation as one of "adjacent" States but from its actual geographical character as one involving laterally related coasts. seabed. public utilities concessions. is an illegal act under both the NAFO Convention and customary international law. first. which justifies a boundary other than the strict median line. Half-effect. secondly. hunting/fishing expeditions. The coastal state has rights over the economic resources of the sea. This method appears to be an appropriate and practical method of abating the disproportion and inequity which otherwise results from giving full effect to the Scilly Isles as a basepoint for determining the course of the boundary. Canada (1996) [ Facts only] This is a dispute relating to Canada͛s amendment of the Canadian Coastal Fisheries Protection Act. so it is also not the function of equity to create a situation of complete equity where nature and geography have established an inequity.͞the arrest of a vessel in international waters by a State other than the State of which the vessel is flying the flag and under whose jurisdiction it falls. Even if no evidence of any landings on the coast have been produced. Second. effect to the offshore island in delimiting the equidistance line. Here the problem also arises precisely from the distorting effect of a geographical feature in circumstances in which the line equidistant from the coasts of the two States would otherwise constitute the appropriate boundary.dispute concerns the adoption of measures for the conservation and management of fisheries stocks with respect to vessels fishing in the NAFO Regulatory Area and their enforcement Spain͛s Position . Spain v. so it must exclude any unilateral measure by a Legal Status of Eastern Greenland (1933) Denmark sued Norway for occupying certain territories in Eastern Greenland. And take note that islands have their own EEZs. THE EXCLUSIVE ECONOMIC ZONE Before the acceptance of the doctrine on the exclusive economic zone. and if they don͛t have the capacity to harvest the allowable catch. * Sir: the method of half effect = proceed first as if the island doesn͛t exist. with its use as a basepoint. However this doesn͛t authorize the use of any method in order to effect an equitable delimitation. Indeed. all waters beyond the contiguous zone were considered high seas over which no state had control. First. where a particular geographical feature has influenced the course of a continental shelf boundary. the method employed was to give half. Both countries are claiming that the have the superior claim over this area. and subsoil ʹ but this right does not affect the right of navigation and overflight of other states. the East Coast was yet . boarded and seized a fishing vessel the Estai. as the term "Straat Davis" was often used to describe the West coast. recognition in conventions/treaties.͟ Canada͛s Position .

)". and the alleged pursuit was interrupted when the patrol boats were recalled before they resumed the chase. DELIMITATION OF MARITIME BOUNDARIES M/V Saiga (No. The delimitation of the EEZ and continental shelf between States with opposite or adjacent coasts must be done by agreement on the basis of international law (ex. installations and structures (article 60. under the Convention. . a coastal State is entitled to apply customs laws and regulations in its territorial sea (articles 2 and 21). Its owner is "Merce-Pesca (S. No visual or auditory signals to stop could have been given to the Saiga. be regarded as "conservation and management measures": [1] those relating to the State's exclusive economic zone. of the International Law Commission's Draft Articles on State Responsibility.A. of the Convention provides: "There must exist a genuine link between the State and the ship. Indeed. Doctrine: In international law only 2 types of measures taken by a coastal State could. paragraph 2). the coastal State has jurisdiction to apply customs laws and regulations in respect of artificial islands. (article 60. in practice. article 292 permits the making of an application within a short period from the date of detention and it is not normally the case that local remedies could Municipal authorities are allowed to attach provisional liberty with the posting of a bond provided the amount is reasonable. Guinea is insisting that they had jurisdiction to arrest and invoke hot pursuit. Equally. Article 292 provides for an independent remedy and not an appeal against a decision of a national court. are: (a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril. and (b) the act did not seriously impair an essential interest of the State towards which the obligation existed.2) Case (1999) The Saiga is a Cypriot oil tanker that was arrested and boarded by Guinean authorities when it was sailing south of the southern limit of the exclusive economic zone of Guinea. Exception ʹ State of Necessity (ART 58 . neither of them is entitled to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines of each of them. Regarding the delimitation of the territorial sea between States with opposite or adjacent coasts. equitable principles which have a normative character as part of general international law). (b) The second question is whether or not a genuine link existed between the Saiga and Saint Vincent and the Grenadines at the time of the incident. and they must not jeopardize or hamper the reaching of a final agreement. in the exclusive economic zone. Saiga͛s Nationality ʹ UNCLOS GENUINE LINK TEST. fiscal. (b) punish infringement of the above laws and regulations committed within its territory of territorial sea. immigration or sanitary laws and regulations within its territory or territorial sea. However. The French refuse to release the vessel and the Master until a bond is posted (exhaust local remedies) Local remedies need not be exhausted in order to file an application. Article 91. Reasonableness of Bond Amount. (a) The first is whether the absence of a genuine link between a flag State and a ship entitles another State to refuse to recognize the nationality of the ship. Article 292 of the Convention is designed to free a ship and its crew from prolonged detention on account of the imposition of unreasonable bonds in municipal jurisdictions. inflicting thereby avoidable loss on a ship owner or other persons affected by such detention. paragraph 1. unless they agree to do so. Measures not satisfying these conditions were not conservation and management measures but unlawful acts pure and simple. The applicants are challenging the validity of the arrest and want damages. The Tribunal notes that. The basis is the value of the detained vessel and of the cargo seized.͞OTHER RULES OF INTERNATIONAL LAW͟ phrase). Guinea did not comply with several. installations and structures. it safeguards the interests of the coastal State by providing for release only upon the posting of a reasonable bond or other financial security determined by a court or tribunal referred to in article 292. No limitation should be read into article 292 that would have the effect of defeating its very object and purpose. EEZ ʹ Guinea could only apply its customs laws with regard to artificial islands. and [2] those relating to areas outside that zone. a coastal State may exercise the control necessary to: (a) prevent infringement of its customs. the Court stated that they "must be cumulatively satisfied" and that they "reflect customary international law". or if historic title or other special circumstances make it necessary to delimit the territorial seas in other ways.UP Law B2009 Reviewer (Karichi Edition)   Page 39 of 130 State which adversely affected the rights of other States outside that State's own area of jurisdiction. 2 CONDITIONS FOR STATE OF NECESSITY TO APPLYʹ NOT MET. Pending this they may make provisional arrangements of a practical nature. Hot Pursuit ʹ defense denied (Article 111 UNCLOS) All the requirements must be cumulatively complied with. If no agreement can be reached within a reasonable period of time. or the failure of local law to provide for release on posting of a reasonable bond." Two questions need to be addressed in this connection. in so far as these came within the framework of an international agreement or were directed at stateless vessels. The Convention does not empower a coastal State to apply its customs laws in respect of any other parts of the exclusive economic zone not mentioned above. h. In endorsing these conditions. its owner or its crew. a company registered in Panama. It was boarded by the French surveillance frigate Floréal in the exclusive economic zone of the Crozet Islands. paragraph 1. Sir Roque says: Mustn͛t submit vessels guilty of illegal fishing to incarceration. but must promptly release them upon the posting of a cash bond. In the contiguous zone. the parties shall resort to peaceful means of dispute settlement. without prejudice to the merits of the case in the domestic forum against the vessel. As set out in article 33. paragraph 2). the amount of the bond imposed by the detaining State and its form but the value of the vessel alone may not be the controlling factor in the determination of the amount of the bond or other financial security if there is no evidence to support the assessment. Camouco Case (2000) The Camouco is a fishing vessel flying the flag of Panama.

( to avoid the effects of a concave coast. 5. every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. Next. using only a single boundary. is in international law not opposable to those States. the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. Prevention any cut off of the sea ward projection of the states concerned. . This articles states: 1. The geological structure of the sea-bed and its geomorphology (or surface features) 4. 10. sure and stable ͞natural boundaries͟ in so fluctuating an environment such as the waters of the ocean. 3. the ICJ stated that there are no rules. 1958 Geneva Convention on the Continental Shelf). Some factors. 4. both conventional and customary international law give priority to the criterion that delimitation must be sought through agreement between the Parties. specifically prescribing the application of any particular equitable criteria or the use of particular practical methods in delimitation. 6 of the Continental Shelf Convention provides for a single technique for continental shelf delimitation (a median for maritime areas between opposite coasts. Canada & the US asked the Court to delimit both the continental shelf and the exclusive fishing zone in the Gulf of Maine area. (What are the rules. General configuration of the coasts of the parties 2. Any delimitation of the continental shelf effected unilaterally by one State. the location of islands of one state near the other. Malta and Gulf of Maine cases. and on the fourth by the Atlantic Ocean. While the Court may use another starting point. 2. a provisional delimitation line was provided. 6. such as the de facto line produced by the pattern of grants of petroleum concessions in the disputed area. in general customary international law. Since then. and the eccentric alignment of small islands lying off a peninsula). There is a presumption that the equitable solution is an equal division of the overlapping areas of the continental shelves of the disputing states. 3. The principle of equitable access to the natural resources of the disputed area. thus geomorphological factors are insignificant. Their navigational interests. 9. It is special international law that must be looked into.UP Law B2009 Reviewer (Karichi Edition)   Page 40 of 130 In the North Sea Continental Shelf Cases it was held that the equidistance method did not represent general international law. This method is inspired by and derives from this equitable criterion: that the equitable solution. 3. First. which is shaped like a rectangle. the provisional solution was examined. 11.those derived from equity which are not in themselves principles and rules of international law. The Gulf of Maine area is a broad oceanic indentation. and unless another boundary line is justified by special circumstances. with regard to the geographical configuration of the area and other relevant circumstances. taking account of special circumstances. 1. 2. Consistency with the general direction of the land boundary. is an equal division of the areas of overlap of the continental shelves of the two States. an equitable result. Where the same continental shelf is adjacent to the territories two adjacent States the boundary of the continental shelf shall be determined by agreement between them. to see whether that law includes some rule specifically requiring the Parties. The applicable principles and rules of international law. also possesses that character of unity and uniformity which makes it impossible to discern any natural boundary capable of serving as a basis for carrying out a delimitation. In this case. the delimitation was done in two steps. And any agreement or other equivalent solution should involve the application of equitable criteria .e. 2. just like the sea-bed. Delimitation shall be effected by agreement on the basis of international law. Geological factors are insignificant. States have a duty to negotiate with a view to reaching an agreement and to do so in good faith with a genuine intention to achieve a positive result. Thus. the great mass of water in the delimitation area. There is unity and uniformity in the whole sea-bed. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other. methods applicable?) Principles under Art. Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (1994) In this case. In the Libya v. Delimitation is to be effected by applying equitable criteria and by using practical methods capable of ensuring. different treatment. If necessary. In the absence of agreement. bordered on the 3 sides by land. Any delimitation must be effected by agreement between the States concerned either by the conclusion of a direct agreement or by some alternative method which must be based on consent. The incidence of natural resources (oil and natural gas) in the disputed area. certain equitable principles have been recognized as guidelines for delimitation: 1. 8. it won͛t for in the delimitation of a maritime boundary. regardless of the views of the other/s concerned. the initial results were corrected. The disparity of coastal lengths in the relevant area. the boundary shall be determined by application of the principle of equidistance from the nearest point of the baselines from which the breadth of the territorial sea of each State is measured. 5. It would be futile to seek any element which could be a stable natural boundary. The principle of non-encroachment by one party on the natural prolongation of the other. it is necessary to abate effects of an incidental special feature which might result in unjustified. The application of equitable principles makes reference to relevant circumstances. and unless another boundary line is justified by special circumstances. the starting point was chosen by the Parties (point A). 7. at least prima facie. Instead customary international law merely contains a general requirement of the use of equitable criteria and practical methods capable of implementing them. In the Gulf of Maine case. and a lateral equidistance line for coasts of adjacent States). unreasonable division). to apply certain criteria or specific practical methods to the delimitation (ex. such as: 1. Determine the starting point of the line. and the ICJ/arbitral tribunal. as the continental shelf of the area is just an undifferentiated part of the continental shelf of the American eastern seaboard. However the applicability of this method is subject to the condition that there are no special circumstances in the case which would make that criterion inequitable (i. In the absence of agreement. the boundary is the median line. Defense and security interests of the disputing states. The conduct of the parties. The same goes for the water column. The general geographical framework or context. Art. Where there is a geographical situation of quasi-equality between a number of states. It isn͛t possible to discern any genuine. 6. given the essentially continuous geological structure of the strata underlying the whole of the continental shelf.

and this is unacceptable. of any cut-off of the seaward projection of the coast or of part of the coast of either of the States concerned. the delimitation line isn͛t a unidirectional line. In the second. and that what international law requires is that recourse be had in each case to the criterion. which has (primarily) a physical aspect and (secondarily) a political aspect. On this latter hypothesis. The practical method to be applied must be a geometrical one based on respect for the geographical situation of the coasts between which the delimitation is to be effected. The Delimitation a. then the mandatory application of Art. regard must be had to the difference between a 'lateral' boundary between adjacent States and a 'median' boundary between 'opposite' States. having regard to all relevant circumstances. However. 6 contemplate 2 distinct hypothetical situations. the boundary is a lateral delimitation line. In appreciating the appropriateness of the equidistance method as a means of achieving an equitable solution. (2) In either case. the seaward extension of a State's coast shouldn͛t encroach on areas that are too close to the coast of another State. delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring. Regarding the method to be used. perpendicular to the general of the coast). but this doesn͛t mean that the basic criterion (equal division) behind these provisions are different. if those effects turned out to be clearly unsatisfactory. Equitable criteria. or even recourse to a different method. If the goal is only a delimitation of the continental shelf.͟ A more complete. the equal division of the areas of overlap of the maritime and submarine zones appertaining to the respective coasts of neighboring States. 6 is undisputed. such as length of coastlines. as far as possible. Given the configuration of the Gulf of Maine coastline. It is doubtful whether a treaty obligation which is in terms confined to the delimitation of the continental shelf can be extended to a field which is evidently greater and fundamentally different. Remember that this involves a delimitation of 2 distinct elements by means of a single line. in conformity with equitable principles. or vice-versa. Thus. however. groups of small islands). the appropriate consequences may be drawn from any inequalities in the extent of the coasts of two States into the same area of delimitation. or even "reasonable". but "equitable". only geometrical methods will serve. To do so would make the maritime water mass over the shelf a mere accessory of the latter. a method with whose application every delimitation operation could begin. The distinction is only due to the different geographical situations referred to (lateral equidistance line for adjacent coasts. These perpendiculars form. Accordingly. albeit subject to its effects being subsequently corrected or it being even discarded in favor of another. mainly the geography of coasts. Adjacent v. the goal of this proceeding is to draw a single delimitation line for both the continental shelf and the superjacent fishery zone. Second Segment. There has been no systematic definition of the equitable criteria for use in international maritime delimitation. and in certain circumstances. Canada relied on the equidistance method. It might become apparent that adjustments were necessary for this purpose. such agreement cannot be achieved. the equitableness of correcting the result when a coastline is cut off. The essential fact to remember is that the criteria are not rules of law and therefore mandatory in the different situations. and at the same time suitable for producing a result satisfying the criterion for the division of disputed areas. Applicable equitable criteria in this case: geography + auxiliary criteria. following negotiations conducted in good faith and with the genuine intention of achieving a positive result. on one side an acute angle of about 82' and on the other a reflex angle of about 278'. the line is a median line. This precludes the use of any criteria which are inappropriate for the delimitation of either element. prescribed by general international law for all maritime delimitations between neighbour states: (1) No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected by means of an agreement. difficulties might arise of a practical nature in particular since every effort should be made to prevent the partial relationship of adjacency from ultimately predominating over the partial relationship of oppositeness. Art. . median line for opposite coasts). an equitable result. Proposed methods by the Parties. None of the potential methods for delimitation has intrinsic merits which would make it preferable to another in the abstract. 4. The greater or lesser appropriateness of one method or another can only be assessed with reference to the actual situations in which they are used. in cases where there are no special circumstances. The practical methods can only be methods appropriate for use against a background of geography. b. while at the closing sector the coasts are opposite. Some corrections must be made to certain effects of its application that might be unreasonable. or the balance of different criteria. but the method of drawing perpendiculars. Thus in the first sector. Thus the equidistance method isn͛t used. or that the method doesn͛t use the same technique. Where. Continental Shelf Convention inapplicable. There must be willingness to adopt a combination of different methods whenever that seems to be called for by differences in the circumstances that may be relevant in the different phases of the operation and with reference to different segments of the line. criteria. the prevention. Thus the Court decided this independently of the proposals. appearing to be most appropriate to the concrete situation. Opposite. so that the concurrent use of auxiliary criteria may appear indispensable. and the presence of geographical features (islands. Moreover. one may justifiably draw from point A two lines respectively perpendicular to the two basic coastal lines. Examples of criteria used: (classic formula) that the land dominates the sea. The Court will apply criteria derived from geography. Nor is there any method of which must be preferred. First Segment. The US proposed the method of the perpendicular (a vertical line. the methods used must be just as suitable for the delimitation of the sea-bed and its subsoil as for the delimitation of the superjacent waters and their fishery resources. in order to achieve an equitable result. whenever possible. precise reformulation of the fundamental norm.UP Law B2009 Reviewer (Karichi Edition)   Page 41 of 130 Fundamental norm in delimitation: the boundary be ͞determined according to the applicable law. delimitation should be effected by recourse to a third party possessing the necessary competence. There is no single method which intrinsically brings greater justice or is of greater practical usefulness. It is the bisector of this second angle which should be adopted for the course of the first segment." The coasts of two States may be adjacent at certain places and opposite at others (as in this case). Applicable practical methods. at point A. Take note that at the northeastern sector the coasts are laterally adjacent. with regard to the geographic configuration of the area and other relevant circumstances. and the assessment made in one situation may be entirely reversed in another.

may be relevant in assessing the equitable character of a delimitation first established on the basis of criteria borrowed from physical and political geography (ex. Thus it is impossible to disregard the difference in length between the respective coastlines of the two States which border on the delimitation area. the choice of method is essentially dependent on geography. with the corrected median line as so established. This is necessary only for the third segment. over its entire length. It will begin where this line intersects. and end on reaching the closing line of the Gulf. within the Gulf. freedom of navigation 2.32 to 1 in place of 1. a ship is a floating part of the flag state. a component state of the US. This involves the determination of the median line. The delimitation was effected in compliance with the governing principles and rules of law. aircraft. the ship is engaged in unauthorized broadcasting and the flag state of the warship has jurisdiction 4. Freedom of fishing also includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas. The presence of some islands and isles must also be considered. or against a ship. the determination of the path of this segment must depend on that of the two previous segments. A warship which encounters on the high seas a foreign ship can board the latter only if there is a reasonable ground for suspecting that: 1. and the terminal point of the international boundary with Canada is situated much farther to the northeast in the Grand Manan Channel. It is obvious that the only kind of practical method which can be considered for this purpose is a geometrical method . the last place on its path where the claims of the two Parties overlap. thus producing an equitable overall result.38 to 1. Verification of the equitable character of the result.e. 2. In conclusion. It is some two and-a-half miles long. Third Segment. Historical presence in the area. By legal fiction. and the fact that the coasts are opposite). which is the real subject of the dispute due to the potential resources of the subsoil and the fisheries. is an understandable step. taking point A as a fixed point and assigning letter B to the meeting-point between the first two segments as above defined. there are no others that should be taken into account. c. with limited practical impact. Some enquiry whether. the island͛s effect is a small transverse displacement of that line.38 to 1. or against persons or property on board such ship or aircraft. persons or property in a place outside the jurisdiction of any State. committed for private ends by the crew or the passengers of a private ship or a private aircraft. freedom of overflight 3. However it would be excessive to treat the coastline of Nova Scotia as transferred southwestwards by the whole of the distance between Seal Island and that coast. In this case. The ratio between the coastal fronts of the Parties on the Gulf of Maine as is thus 1. there is no point of reference. This ratio should be reflected in the location of the second segment of the delimitation line. The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement. against another ship or aircraft. 3. It might well appear that other circumstances ought properly to be considered in assessing the equitable character of the result produced by this portion of the delimitation line. any illegal acts of violence or detention. though flying a foreign flag or refusing to show its flag. Seal Island. and directed: on the high seas. the ship is without nationality 5. A correction is thus needed. The total length of the US coastline in the Gulf is approximately 284 nautical miles. In principle. freedom of scientific research. Since it is only a question of adjusting the proportion by reference to which the corrected median line is to be located. The central segment of the delimitation line will correspond. the ship is really of the same nationality as the warship. These other circumstances may be summed up by the data provided by human and economic geography. Stage two. i. to seaward. . The back of the Gulf is entirely occupied by the continuous coast of Maine. whether coastal or land-locked. It would then be proper to shift the median line drawn in such a way as to reflect this ratio along the line Cape Cod-Chebogue Point. so that the ratio to be applied for determining the location of the corrected median line will be approximately 1. THE HIGH SEAS These are all parts of the sea that are not included in the territorial sea or in the internal waters of a State. letter C to the meeting-point between the second and third segments on the closing line of the Gulf.the drawing of a perpendicular to the closing line of the Gulf. and letter D to the point where the first segment reaches. freedom of fishing 4. This is the segment which lies outside and over against the Gulf of Maine. i. in addition to the factors provided by the geography of the Gulf itself. at a corner of the rectangle which geometrically represents the shape of the Gulf proper. or any act of depredation. and it is appropriate to give the island half effect. the bisector drawn from point A and constituting the first segment. the Court concluded that there are absolutely no conditions of an exceptional kind which might justify any correction of the delimitation line that was drawn. the application of any method of geometrical origin can in practice only result in the drawing of a median delimitation line. Every State. Piracy refers to the following acts: 1. 5. outside the actual shores of the Gulf that can serve as a basis for carrying out the final operation required. The high seas are subject to 6 freedoms: 1. not an angular displacement. has the right to sail ships flying its flag on the high seas. C and D. & socioeconomic aspects) . freedom to lay submarine cables and pipelines 5. applying equitable criteria and appropriate methods accordingly. the ship is engaged in slave trade 3. the delimitation line fixed between the maritime jurisdictions of Canada and the US will be the line successively connecting points A. activities pursued like fishing and conservation of resources. Remember. The overall length of the Canadian coastline is approximately 206 nautical miles. the ship is engaged in piracy 2. Such a line can only be one approximately parallel to the approximately parallel lines of the two opposite coasts.UP Law B2009 Reviewer (Karichi Edition)   Page 42 of 130 Stage one. The appropriate method should be to apply the ratio selected to a line drawn across the Gulf where the coasts of Nova Scotia and Massachusetts are nearest to each other. any act of inciting or of intentionally facilitating any of the above acts. freedom to construct artificial islands and structures 6. any act of voluntary participation in the operation of a known pirate ship or aircraft. The portion of the line now to be determined will inevitably be situated in the open ocean. B. In this case (given the rectangular shape of the area and the quasi-parallelism between the lines used in the delimitation. This is the longest portion. From the geographical point of view. Freedom of overflight belongs to both civilian and military aircraft. and are thus ineligible for consideration as criteria to be applied in the delimitation process itself.

However. however. MARINE POLLUTION Marine pollution prevention and control arising from land-based sources. A HIGHLY MIGRATORY SPECIES OF FISH! The list of highly migratory species contained in Annex I to the Convention includes southern bluefin tuna: thunnus maccoyii. subject to their treaty obligations. CONSERVATION AND MANAGEMENT OF LIVING RESOURCES OF THE HIGH SEAS Highly Migratory Species must be protected! Under art 64. j. Although the Tribunal cannot conclusively assess the scientific evidence presented by the parties. at the time when the foreign ship within the territorial sea or contiguous zone receives the order to stop. The minerals recovered from the Area. RIGHT OF LAND-LOCKED STATES TO AND FROM THE SEA A land-locked state is one which has no sea-coast. Take note that the US doesn͛t recognize a ceiling. of the Convention. All rights in the resources of the Area are vested in mankind as a whole. may only be alienated in accordance with the relevant provisions of UNCLOS. the State which has issued a master's certificate or a certificate of competence or license shall alone be competent. or any other ship or aircraft properly marked for that purpose. These are areas of the seabed and the ocean floor. the rights and duties of coastal states. Also. l. in cases of gross Southern Bluefin Tuna Case (1999) Australia and New Zealand alleged that Japan had failed to comply with its obligation to cooperate in the conservation of the southern blue fin tuna (SBT) stock by undertaking unilateral experimental fishing for southern bluefin tuna in breach of its obligations under Arts 64 and 116 to 119 of UNCLOS in relation to the conservation and management of the SBT. Hot pursuit is allowed where there is good reason to believe that the ship has violated laws or regulations of a coastal state. m. This arose as a response to the Exxon incident. on whose behalf the Authority (the International Sea-Bed Authority) shall act. or other charges. vessels and others are covered quite extensively under UNCLOS. k. the ship giving the order should likewise be within the territorial sea or contiguous zone. situation between a land-locked state and the sea. as the case may be.UP Law B2009 Reviewer (Karichi Edition)   Page 43 of 130 Take note that the contiguous zone is part of the high seas. In the event of a collision or any other incident of navigation concerning a ship on the high seas. no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. determining the allowable catch). In accordance with art 290 of the Convention. States Parties to the Convention have the duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species. Provisional Remedies granted ʹ catch limit set (Japan made a clear commitment that the 1999 experimental fishing programme will end by 31 August anyway). and their subsoil. or to cooperate with other states in taking. If the foreign ship is in the contiguous zone. it may be pursued only for violations of the rights of the coastal state in the contiguous zone.g. Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own state or of a third state. shall be ordered by any authorities other than those of the flag State. It is not necessary that. * Sir: marine pollution cases are different from quasi-delicts. all states have the duty to take. INTERNATIONAL SEABED AREA All states have the right for their nationals to engage in fishing on the high seas. except those levied for specific services rendered in connection with such traffic. Mutatis mutandis. involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship. sea-bed-activities subject to national jurisdiction. activities in the Area. These states have the right of access to and from the sea and the freedom of transit through the territory of a transit state (a state. This must commence when the foreign vessel is within the internal waters. for the latter requires proof of negligence in order to recover damages. shipping and oil companies are required to pay only up to a certain amount (based on an oil fund). In disciplinary matters. No arrest or detention of the ship. and shall have its principal place of business at the seat of the Authority. there is no need to prove fault for there is an immediate duty to pay for the clean-up. The Enterprise is the organ of the Authority which shall carry out activities in the Area directly as well as the transporting. They are also asking for provisional remedies in the form of an order commanding Japan to desist from such unilateral experimental fishing. These are the common heritage of mankind and may not be appropriated by any state or person. the Tribunal may prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued is within the limits of the territorial sea or. MEASURES SHOULD BE TAKEN TO PRESERVE RIGHTS AND AVERT MORE DETERIORATION. to pronounce the withdrawal of such certificates. such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas (e. which lie beyond any national jurisdiction. Traffic in transit shall not be subject to any customs duties. and the UNCLOS provisions. These resources are not subject to alienation. It may continue to the high seas if the pursuit has not been interrupted. even if the holder is not a national of the State which issued them. Hot pursuit may be carried out only by warships or military aircraft. PROVISIONAL MEASURES AIMS TO PRESERVE RIGHTS AND HARM TO ENVIRONMENT. the archipelagic waters. and marketing of minerals recovered from the Area. the right of hot pursuit shall also apply to violations of applicable laws and regulations of the coastal state in the EEZ or the continental shelf including the safety zones of the shelf. taxes. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship. EEZ. In line with this. with or without a seacoast. after due legal process. it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern blue fin tuna stock. or above the continental shelf. within the contiguous zone. through whose territory traffic in transit passes). the territorial waters. read together with arts 116 to 119. processing. States are bound to prevent and control marine pollution from any source and are liable for damage caused by violation of their international obligations to combat such pollution. . even as a measure of investigation. Under the TOVALOP and CRISTOL. or the contiguous zone of the pursuing state. SOUTHERN BLUE FIN TUNA.

NAVIGATION Every State has the right to sail ships flying its flag on the high seas. o.UP Law B2009 Reviewer (Karichi Edition)   Page 44 of 130 negligence. the ICJ. SETTLEMENT OF DISPUTES Peaceful settlement of disputes is compulsory. the companies will lose the benefit of limited liability and will become liable for the amount needed for the clean-up. PEACEFUL USE OF THE OCEANS In exercising their rights and performing their duties under UNCLOS. If a bilateral settlement fails. This is a departure from the SS Lotus case. q. or to rescue persons in distress. p. or an arbitral tribunal constituted under the Convention. The alternatives are the International Tribunal for the Law of the Sea. Also the flag state shall have the duty to require the ship͛s master. without danger to the crew or passengers. Only the flag state may exercise criminal jurisdiction over the master or any person in the service of the ship. states shall refrain from any threat or use of force against the territorial integrity or political independence of any State. ARCHAEOLOGICAL AND HISTORICAL OBJECTS States have the duty to protect objects of an archaeological and historical nature found at sea. or in any other manner inconsistent with the principles of international law embodied in the UN Charter. . n. If a ship sails under the flag of 2 states. UNCLOS requires submission of the dispute for compulsory settlement in one of the tribunals clothed with jurisdiction. it is considered as having no nationality and may not claim any of the nationalities represented by these flags with respect to any other State. to render assistance to any person at sea in danger of being lost. No ship may change its flag during its voyage except in case of transfer of ownership or on the basis of change of registry. It is the State͛s right to decide the conditions by which it will accord the right to fly its flag.

which does not exc eed 12 nautical miles from the bas elines . & use artificial islands & installations To lay submarine cables & pipelines Freedoms of navigation & Sovereign rights to explore. For c ollisions. in the waters. seabed. Jurisidction Coastal state has absolute civil & criminal jurisdiction Coastal state has sovereignty (over airspace. and subsoil.scientific res earch To visit warshi ps Hot pursuit Immunity of Rights of the Coastal State To a dopt laws. Civil ʹ those incurred by s hip its elf.overflight . Under the UNCLOS. traffic separation schemes Rights of protection (includes right to temporarily sus pend innoc ent passage if essential for protecti on of its sec urity) To s uspend the right of passage with regard to specified areas if ess ential for the protecti on of the state͛s security a nd without discrimination among foreign s hips To designate sea lanes & air routes Prescribe traffic separation schemes for safe passage of s hips via narrow channels in s uch lanes Substitute other s ea lanes. a nd rights don͛t affect the legal managing the status of superjac ent natural res ourc es. or sa nitary laws & regulations Page 45 of 130 EEZ CON TINENTAL SHELF An area bey ond a nd Seabed and subsoil of adjacent to the submarine areas that territorial sea. rivers. subs oil. regulations relating to innoc ent passage When nec essary with regard to navigational safety. ports. good order. exploit natural resources (mineral & other nonliving resourc es of the s eabed & subs oil. pipelines . To explore. disturbs the peac e. fiscal. territory. CON TIGUOUS ZONE A zone c ontiguous to the territorial sea that may not extend bey ond 24 nautical miles from the baselines Sovereignty. or to a distanc e of 200 miles from the bas elines whichever is greater. Criminal ʹ cons equenc es extend to coastal state. drug traffic 2. Coastal state has jurisdiction only over customs. Coastal state has c ertain Sovereign rights only sovereign rights over the for the purpos e of continental shelf. waters and airspac e over living or nonliving. and the res ourc es. cons erve. either immobile on or under the s eabed or are unable to move except in consta nt physical contact with the seabed or subs oil) To c onstruct. the area will be part of the high seas . If there is no claim. Exercise nec essary control to prevent violations with regard to customs. & living organisms at the harvestable stage. the seabed. sa nitary. The c ontiguous zone if claimed will be superimposed on the EEZ. Jurisdiction is limited. in the waters. seabed. installations . ARCHIPELAGO A grp.fishing . operate & use artificial islands & installations To lay submarine cables & . fiscal. limited by the right of innocent passage Flag state exercises civil. the waters. which extend bey ond the extends 200 nautical territorial sea throughout miles from the the natural prolongation of baseline its land territory to the outer edge of the continental margin. subs oil) . Includes waters of lakes. or in the archipelagic waters of a n archi pelagic State. Thes e are limited. Thes e sovereign cons erving. and protection. or subsoil. roa dstea ds are part of the territorial sea. immigration. interconnecting waters & other na tural features which are so clos ely interrelated that suc h form an intrinsic geographical. s eabed. living or nonliving. economic & political entity.UP Law B2009 Reviewer (Karichi Edition) Definition INTERNAL WATERS Waters on the landward side of the baseline of the territorial sea. This s overeignty is exercised subject to the right of arc hipelagic s ea lanes passage.lay s ubmarine cables. connected with the voyage Coastal state does not exercise s overeignty but protective jurisdiction. preservation of marine environment HIGH SEAS All parts of the s ea that are not included in the exclusive economic zone. no penal proceedings may be instated exc ept before the judicial or administrative authorities of either the flag state or of the state of which persons in the service of the s hip is a national FOR ALL STATES: Freedoms of the high s eas . with regard to artificial islands and installations. exploit. To c onstruct. request for assista nce. the others are ma ndatory).construct artificial islands. operate.navigation . Not under jurisdiction. require foreign ships to us e s ea lanes. & manage natural res ourc es. of islands. the airspace above thes e waters. Coastal states must make a claim to its contiguous zone for their pertinent rights to exist (this zone is only optional. criminal jurisdiction with EXCEPTIONS 1. marine scientific research. and bays   TERRITORIAL SEAS An a djacent belt of s ea. in the territorial sea or in the internal waters of a State. though it exploring. doesn͛t form part of its exploiting. including parts of islands. or which historically have been regarded as such Archipelagic state͛s sovereignty extends to the archipelagic waters. sovereignty of a ny state Ships under the flag of 1 state s hall be subject to the exclusive jurisdiction of suc h state.

psychotropic substa nces To s uppress unauthorized broadcasting Punish the breaking of s ubmarine cables To c ooperate in cons ervation. pipelines Duties of Third States Ships and aircraft in archipelagic sea lanes passage s hall not deviate more than 25 miles to either side of the lanes during passage Respect applicable s ea lanes a nd traffic s eparation schemes To abide by the rules and regulations set by the coastal state Due regard to the rights & duties of the coastal state Comply with the laws. those carrying nuclear. management of living resources Rights of Third States NO right of innocent passage EXCEPT when the establishment of a straight baseline enclos es as internal waters thos e whic h had not previously been considered as suc h Right of innoc ent passage No charge may be levied on foreign vessels by reason only of their passage Submarines. other legitimate activities of adjacent neighboring states Respect existing submarine cables laid by other states & passing through its waters without making a windfall Allow the maintena nce and replacement of suc h cables Right of innoc ent passage Right of archipelagic sea lanes passage Conserve & ma nage the res ources Promote optimum utilization FOR ALL STATES: To fix c onditions for grant of nati onality to s hips (right to fly its flag) Exercise jurisdiction & control in administrative. s ocial matters over s hips flying its flag To render assistance To prevent. installations warships. technical. maintenance of cables. punish the trans port of slaves To repress piracy To s uppress illicit traffic in narcotic drugs. underwater vehicles must navigate on the s urface & s how their flag Comply with coastal state͛s rules. within its territorial sea Respect rights of third states under existing agreements Recog nize traditional fishing rights. to have due regard to thos e alrea dy in position Establish safety zones around artificial islands. foreign ships must use designated sea lanes. inherently dangerous/noxi ous substa nces. s hips owned or operated by a state & used only on gov ͛t noncommercial s ervice Duties of Coastal States Not to hamper the innoc ent passage of foreign s hips To give appropriate publicity to any da nger to navigation. to have due regard to thos e alrea dy in position IF BEYOND 200-MI. which is a net importer of mineral resourc es from its continental shelf . pipelines In laying cables/ pipelines. traffic separation schemes Foreign nuclear-powered ships.UP Law B2009 Reviewer (Karichi Edition)   traffic separation schemes immigration Punish infringement of the laws related to the 4 areas overflight Page 46 of 130 pipelines Exclusive right to authorize & regulate drilling on the shelf To exploit the s ubs oil via tunneling Not to infringe/interfere with rights & freedoms of other Sta tes. must carry doc uments & Right to innoc ent passage Right to transit passage To lay submarine cables & pipelines Freedoms of navigation & overflight To lay submarine cables and pipelines To repair existing cables.g. navigation Not to impede the laying. regulations relating to innoc ent passage When required. ZONE: The duty to make a nnual payments or contributions in kind after the first 5 years of production exc ept in case of a developing state. e. during innoc ent passage. of whic h it has knowledge. regulations of the coastal state Foreign ships must respect the safety zones established by the coastal State In laying cables/ pipelines.

UP Law B2009 Reviewer (Karichi Edition)   obs erve special precauti onary measures Page 47 of 130 .

As it is against all so may it be punished by all. The jurisdiction of the nation within its territory is necessarily exclusive and absolute. torture. are charged with violations of Articles of War for offenses committed in areas under the control of the US Army. and in the spirit and intention of universal hostility. the agreement for the stationing of the US Army or a part of its forces in the RP implies a waiver of all jurisdiction over their troops during the time covered by such agreement. piracy. which is robbery or forcible depredation on the high seas. jurisdiction to adjudicate (juridical jurisdiction) 5 traditional bases of jurisdiction over extraterritorial crimes under international law: 1. People v. RPC ʹ extraterritorial clauses now. The jurisdiction of piracy unlike all other crimes has no territorial limits. what nationality of victim or offender. An Introduction to International Law (for easier reading. The China Banking Corporation Sir Roque says: Acts of a belligerent military occupant is valid if it is not political. They can flow from no other legitimate source. and an investment of that sovereignty to the same extent in that power in which would impose such restriction. only ͞sequestration͟ which is a valid measure of prevention. Universal. 4. 5. & petitioners. wherein jurisdiction is based on whether jurisdiction is based on the place where the offense is committed (Lotus case). Universal jurisdiction over piracy. 3. CASES ON JURISDICTION Brownell v. wherein jurisdiction is based on whether the national interest is injured. Piracy is a crime not against any particular state but against all mankind. Kinds: 1. Thanks to Tin and Cathe for this part. Griess Petition against US prosecution for misappropriation. are not neutral to crimes. though neutral to war. and 477. ͞Confiscation͟ is not allowed. IL rule: a foreign army allowed to march through a friendly country or to be stationed in it. Act so offensive. int͛l order. Since such part of the US Army is stationed in the RP with permission of our government. restating cases. jurisdiction to enforce the norms prescribed (executive jurisdiction) 3. as well as by the enactment of RAs 7. under the Trading with the Enemy Act. would imply a diminution of its sovereignty to the extent of the restriction. It is susceptible of no limitation not imposed by itself. JURISDICTION AND IMMUNITIES9 Bernas. Alternative bases for exercise of jurisdiction: nationality ʹ offender (RP Civil Code) be implied from its conduct or from that of its authorized officers. a settled principle of international law gives said army jurisdiction over their person and the offenses charged. . crimes v. wherein jurisdiction is based on the nationality of the victim. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. Territorial. Passive Personal. Appeal against conviction for piracy. This consent may be either express or implied. without lawful authority and done animo ferendi. wherein jurisdiction is based on the nationality of the offender (Nottebohm case). wherein jurisdiction is conferred in any forum that obtains physical custody of the perpetuator of certain offenses considered particularly heinous and harmful to humanity (Eichmann v. deriving validity from an external source. Sir Roque says: Jurisdiction 1. Higgins & Brownlie articles are in the digest) > Jurisdiction ʹ authority to affect legal interests. crimes & crimes against humanity. Limit on sovereignty. Sunlife Action to compel payment on an endowment policy payable to a Japanese. The consent of a Senate to the operation of a foreign law within its territory does not need to be express. Ratification can be given tacitly as well as expressly. Pirates are in law hostes humani generis. can we use People v. 2. CFI has jurisdiction over the crime of piracy. Lollo? YES! The lack of domestic law does not make the act any more legal. Protective. US laws have no extraterritorial effect. Atty-General of Israel)." Tubb & Tedrow v. Lol-Lo And Saraw Sir Roque says: Even without domestic executing lawͶso why not for enforced disappearances? Extra-judicial killings? Against Osama. is exempt from the civil & criminal jurisdiction of the place. The application of said law in the RP is based concurrently on said act (Philippine Property Act of 1946) and on the tacit consent thereto and the conduct of the RP Government itself in receiving the benefits of its provisions. who has 2 Filipina wivesͶif he hides here. "for those limits. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state. & permits the allied general or commander-in-chief to retain that exclusive control & discipline which the government of his army may require. war crimes. All exceptions to the full and complete power of a nation within its own territories. Universal jurisdiction regardless of where. Ex. 8. must be traced up to the consent of the nation itself. Territorial jurisdiction 2. by permission of its government or sovereign. The ratification of or concurrence of the RP to the agreement for the extension of the Philippine Property Act of 1946 is clearly implied from the acts of the President of the RP and of the Secretary of Foreign Affairs. jurisdiction to prescribe norms of conduct (legislative jurisdiction) 2. who belong to the military personnel of that army. Protective. genocide 3. Exclusive jurisdiction. Tacit ratification takes place when a State begins the execution of a treaty without expressly ratifying it. it is enough that said consent 9 Haw Pia v. Any restriction upon it.UP Law B2009 Reviewer (Karichi Edition)   Page 48 of 130 3. Effective nationality link doctrine (Nationality Principle) ʹ determines which of two states of which a person is a national will be recognized as having the right to give diplomatic protection to holder of dual nationality (Nottebohm).

No functional immunity with respect to acts outside official duties. "immunity" is commonly understood as an exemption of the state and its organs from the judicial jurisdiction of another state.Cory waived immunity important since immunity could still be claimed. the case falls within the exception to the doctrine of state immunity. placing under custody. for example. Sovereign immunity: contract in discharge of governmental function. Wylie v. Under international law. a tort and a violation of international law. Note that RP filed a brief stating that its foreign relations with the US would not be adversely affected if claims against Marcos were litigated in the US. This is anchored on . Estate of Marcos Sir Roque says: . A suit against such as agency is a suit against the US Government. A public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith. for the protection of his rights. there was valid tender of payment to BOT which discharged Haw Pia͛s obligation.Normative value of law: even sovereign acts are not immune to make it unwise to commit the violation. The doctrine of Immunity is restricted to sovereign or governmental activities (jure imperil) and cannot be extended to commercial. with no nexus to the US (after Court found that Marcos was not immune. In international law. Bradford was sued in her private or personal capacity for acts allegedly done beyond the scope and even beyond her place of official functions.Nature of immunity: jurisdiction not application if sovereign act. NLRC Petition assailing Labor Arbiter͛s jurisdiction over termination of an employee of an agency of the US. the complaint against JUSMAG cannot not prosper. all that engage in torture deny it. The prohibition against official torture carries with it the force of jus cogens norm which enjoys the highest status in international law. Considering that the US has not waived or consented to the suit. Confiscation. This is based on [1] writings of well-known writers on International Law. the sovereign state cannot be deemed to have waived its immunity from suit. Public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is showing of bad faith. There was no confiscation here but a mere sequestration. . and an action against the officials or officers by one whose rights have been invaded or violated by such acts. sovereign acts can be prosecuted). Thus. No functional immunity WITH REGARD TO tortuous acts. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same. as freezing. and sequestrating the enemy private property. Does the US have jurisdiction over a case involving foreign sovereign for acts done in the RP. CASES ON SOVEREIGN IMMUNITIES Hilao v. . private and proprietary acts (jure gestionis) The contract was entered into in the discharge of its governmental functions. and no state claims a sovereign right to torture its own citizens. Libel case against US army personnel in charge of the publication. US Alien Tort Statute provides a forum for claims by aliens for torture that has occurred elsewhere. Immunity of State from suit is a universally recognized principle.No immunity because the act constituting quasi-delict (is this consistent with doctrine?) Coverage is not applicable to negligent or bad faith act. it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. Sequestration v. While the doctrine appears to prohibit only suits against the state without its consent. acts of torture violate customary int͛l law)? No sovereign immunity against charges of torture. . Rarang Doctrines: . is not a suit against the State within the rule of immunity of the State from suit. Measures of prevention are not repugnant to Hague Regulations. 31 of the Vienna Convention on Diplomatic Relations which admits of exceptions of the general rule of a diplomatic agent͛s immunity from criminal jurisdiction of the receiving state: (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. or beyond the scope of his authority or jurisdiction. All states believe that torture is wrong.UP Law B2009 Reviewer (Karichi Edition)   Page 49 of 130 Petition to compel cancellation of mortgage with sequestered bank. JUSMAG Philippines v. they had to resort to such measures of preventionͶwhich do not amount to a straight confiscation. and [3] Trading with the Enemy Acts of the US and other civilized countries. the occupying power can effect a liquidation that is in the form of a mere sequestration. any state that engages in official torture violates jus cogens. In the effort of occupying powers to control enemy property within their jurisdiction in order to avoid their use in aid of the enemy and to increase their own resources. the principle of the sovereign equality of states under which one state cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium (an equal has no power over an equal).Act in official capacity because of the nature of the publication (attached to the organization) or because of function/capacity in which you acted. the suit must be regarded as against the state itself although it has not been formally impleaded. It requires a claim by an alien.Victims of Japan͛s comfort women policyͶACTA claim for enslavement during wartime dismissed since Japan didn͛t waive immunity (if it did. blocking. Unauthorized acts of government officials or officers are not acts of the State. acts of torture are not acts of state. albeit it was not impleaded in the complaint. US v. under Art. Confiscation is not allowed under the Hague Regulations. [2] express authorization granted under the Army and Navy Manual of Military Government and Civil Affairs of US and of other civilized countries. such as the appropriation of the amount needed to pay the damages awarded against them. . Under international law. Reyes Sir Roque says: Jurisprudence in this regard is in flux (excess of authority means it is not within ambit of immunity) Discrimination case against store manager in an exchange in JUSMAG.

Aquino Sir Roque says: Case is authority for: WHO is not subject to local jurisdiction. contractual liability that that political entity may assume under the contract. our diplomats have multiple designations. whether as party or as attorney. In Shauf v. the restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign. An act or omission that is ultra vires cannot be part of official duty. USA Collection case under a stevedoring contract at the US Naval Base. Aquino was disregarded. In this case the projects are an integral part of the naval base which is devoted to the defense of both the US and the RP. ͞Bitch͟ oral defamation case against an ADB economist. The traditional rule of State immunity exempts a State from being sued in the courts of another State without its consent or waiver. his immunity would bar any suit against him in connection therewith and would prevent recovery of damages arising therefrom. Because the activities of states have multiplied. This situation usually arises where the public official acts without authority or in excess of the powers vested in WHO v. A State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. its commercial activities or economic affairs. State immunity not lost when state enters into sovereign contracts. Case dismissed for failure to exhaust administrative remedies but SC said. The doctrine cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. Invoking functional immunity: certification from DFA. But. Third Secretaries are also Vice Consuls. US v. No basis to give immunity to a DEA agent. generally. There is a procedure to invoke immunity from suit before local courts: submission to court of a certificate from the DFA characterizing the organization. Liang (Huefeng) v. without its consent and permission. Minucher v. DFA certification disregarded. DEA agent definitely not a diplomatic agent (under the Vienna convention). considering that the US Government. accredited (determines diplomat status). but rather for lack of a cause of action because even if he committed the imputed act and could have been otherwise made liable therefor. The certificate (Liang was entitled to immunity) required in WHO v. no legal basis for immunity. but is a tortious act. The MR focused on the diplomatic immunity of officials and staff of ADB from legal and juridical processes in the Philippines and the constitutional and political basis of that immunity. to which local courts should defer. commercial and proprietary acts (jure gestionis). indisputably a function of the government of the highest order. it has been necessary to distinguish themͶ between sovereign and governmental acts (jure imperii) and private. Lyons. under US authority who certifies that it is service-related). People Sir Roque says: Calling someone a ͞bitch͟ is not related to a sovereign function. entered into a contract with appellant for stevedoring & miscellaneous labor services within the Subic Bay area. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. The correct test for the application of state immunity is not the conclusion of a contract by a state but the legal nature of the act. SC disregarded the ͞office of protocol͟ from the DFA stating that Liang is covered by immunity from legal process under Section 45 of the Agreement between the ADB and th RP regarding the Headquarters of the ADB in the RP. Smuggling case involving a WHO official. the private respondent is clothed with diplomatic immunity.UP Law B2009 Reviewer (Karichi Edition)   Page 50 of 130 Immunity from suit. No functional immunity WITH REGARD TO personal acts. CA Sir Roque says: . a US Navy Reservation. it is evident that it can bring an action before our courts for any . RA 75. VFA is problematicͶlimits exercise of sovereignty over offenses by visiting forces in RP (offenses in unofficial acts. CA gravely abused its discretion in dismissing the civil case on the basis of an erroneous assumption that simply-because of the [self-serving] Diplomatic Note. . thereby divesting the trial court of jurisdiction over his person. The result is that State immunity now extends only to acts jure imperii. It does not apply where the contract relates to the exercise of its sovereign functions. This rule is a necessary consequence of the principles of independence and equality of States. CA: ͞Authorities state that the doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. no bases agreement. Judge Aquino should have quashed the search warrant application. or in any other. v.Whether such claim arises from criminal acts or from tort. through its agency at Subic Bay. Inc.MFR ruling is wrong. they are not utilized for nor dedicated to commercial or business purposes. there can be no question that private respondent was sued in his personal capacity for acts committed outside his official functions duties.There shouldn͛t be immunity. State immunity lost when state enters into proprietary contract. [twice asked in last 5 Bar exams] . declares as null and void writs or processes sued out or prosecuted whereby inter alia the person of an ambassador or public minister is arrested or imprisoned or his goods or chattels are seized or attached and makes it a penal offense for "every person by whom the same is obtained or prosecuted. the sovereign cannot be sued in its own courts. Court bound by DFA certification as to official capacity. It may at once be stated that even if the Calzo enjoys diplomatic immunity. even remotely. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied. a dismissal of the case cannot be ordered on the ground of lack of jurisdiction over his person. RP gets custody upon request. meant to safeguard the jurisdictional immunity of diplomatic officials in the Philippines. Iranian Labor Attache claims damages after he was ͞framed͟ of heroin trafficking by a US drug enforcement agent.In RP. specialized regime as to custody with respect to unofficial acts. Ruiz Action to compel US to award of harbor works contract. However. US can request custody pending litigation but after trial until decision. and every officer concerned in executing it" to obtain or enforce such writ or process.

Rosario Action for reconveyance & damages by first buyer against seller Holy See.International crime ʹ duty to prosecute. besides. with the Pope. SEAFDEC is an international agency enjoying diplomatic immunity.͟ Petition for Certification Election of rank and file members of the labor union in ICMC. for crimes committed. one of those rules which have a particular status. that it is immune from the legal writs & processes issued by the tribunals of the country where it is found. that the conduct should be a crime in the UK at the time it was committed. especially when it is not undertaken for gain or profit. acting in behalf of the international order. and the demands of its mission in the world. from political pressure or control by the host country to the prejudice of member States of the organization. Despite its size and object. The Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. it has an independent government of its own. Important: non-political purpose + autonomy. it is the Holy See that is the international person. one can conclude that in the Pope's own view. Torture is now an international crime on its own. Pinochet extradited by Spain while he was in London seeking medical treatment. Calleja). 1988 (date when Torture became a crime in the UK). If the foreign state is not engaged regularly in a business or trade. nonprofit & UN registered. The privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the DFA. who is also head of the Roman Catholic Church. ͞International Organization͟ is generally used to describe an organization set up by agreement between two or more states.e. Universal Jurisdiction over torture is justified by its jus cogens nature.Pinochet case ʹ but acts were committed while he was the sovereign of Chile & sovereigns have immunity from suits Extradition in UK ʹ criminal . Where the plea of immunity is recognized and affirmed by the executive branch.UP Law B2009 Reviewer (Karichi Edition)   Page 51 of 130 him. immunity pertains only to sovereign acts. which is to shield the affairs of international organizations. but SEAFDEC v. DFA certification confirms sovereign immunity. Remedy: a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels Sir Roque says: Involves a sovereign mini-state Ex Parte Pinochet Sir Roque says: . One of the basic immunities of an international organization is immunity from local jurisdiction. They are organized mainly as a means for conducting general international business in which the member states have an interest. so he does not enjoy immunity WITH REGARD TO these acts committed after 09-29-88. i. duties and powers. Pinochet can be extradited WITH REGARD TO charges after Sept. Double criminality doctrine. the Lords ruled that immunity extends only to sovereign acts. . .Without abandoning the customary norms on immunities. and not at the time the extradition was sought (request date). then it is an act jure imperii. so. after failure to complete payment. i. Not all the crimes as charged are extradition crimes.e. The exercise of jurisdiction by the DOLE would defeat the very purpose of immunity. Principle of Double Criminality requires that the conduct complained of must constitute a crime under the law of both Spain and of the UK. Functional immunity for IO. The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character and respective purposes. Functional immunity for international agency. Test: whether the foreign state is engaged in the activity in the regular course of business. ICMC v. or beyond the scope of his authority or jurisdiction. Pinochet as a former head of state enjoys immunity ratione materiae. Under contemporary international law. 29. and to ensure the unhampered performance of their functions. during his term as head of state of Chile (he became head of state after a successful coup).. A public official may be liable in his personal private capacity for whatever damage he may haw mused by his act done with malice and in bad faith. The property was donated to the Holy See for it to establish its diplomatic premises but was forced to sell after failure to evict squatters. IL prohibiting torture has the character of jus cogens or a peremptory norm. primarily in Chile. RP has accorded the Holy See the status of a foreign sovereign. sovereign & functional immunity. Aquino). not including commission of international crimesͶRome Statute: immunity is not a defense against charges of international crimes. or an incident thereof. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City. Important points from the torture convention: 1) Torture under the Convention can only be committed by "a public official or other person acting in an official capacity". in conformity with its traditions. Calleja . but torture as defined under the Torture convention cannot be a public function. The UN is an international organization dedicated to the propagation of world peace. such objection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states. such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights. Acosta Illegal termination case. The relevant date is the conduct dateͶmeaning.House of Lords ʹ reviewed the nature of his acts. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may interfere in their operations or even influence or control its policies and decisions of the organization. it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country's foreign relations (WHO v. Holy See v. The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (ICMC v. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity. as the Holy See or Head of State. enjoying functional independence and freedom from control of the state in whose territory its office is located. in accordance with international practice. a Vietnam War refugee processing center.

the ambassador's privileges shall be enjoyed from the moment he takes up post (2) ³When the functions of a person enjoying privileges and immunities have come to an end. . rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. There is no established rule of IL that requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime.UP Law B2009 Reviewer (Karichi Edition)   Page 52 of 130 these words include a head of state. 5(1) states) do not seek to extradite. and this surrender would͛ve been valid within the dominions of Peru. He shall continue to enjoy immunity with respect to acts performed in the exercise of his functions (Art. 4) There is no express provision dealing with state immunity of heads of state. so far as it regulates the right of asylum. US to face larceny & embezzlement charges. In this case. so that. it is necessary to provide that immunity is afforded to his official acts during his tenure in post. Chile ratified the Convention with effect from Oct." 10 -Under Art. -Since he no longer represents his state. However. or at any period of his residence there. the treaty does regulate or impose a restriction upon the right of the government of the country of the asylum to protect the criminal from removal.head of state is entitled to the same immunity as the state itself. ratione materiae). immunity shall continue to subsist. It isn͛t contended that Peru couldn͛t have ordered Ker out of the country on his arrival. .State immunity probably grew from the historical immunity of the person of the monarch. The treaty. This treaty (of extradition). For mere irregularities in manner in which he was brought into the custody of the law. A single act of official torture is "torture". . public or private. apparently. after his post. Spain and the UK are all parties to the Convention. ͚Due process of law͛ is complied with when the party is regularly indicted by the proper grand jury in the state court. 30. or any other treaty. have surrendered Ker to an agent of Illinois. the treaty wasn͛t called into operation or relied upon. is intended to limit this right in the case of one who is proved to be a criminal fleeing from justice. . or on expiry of a reasonable period in which to do so. 39 (1). 39(2). 8. enjoys immunity in relation to his official acts done while he was an official. 39(2). still in post. 2) Superior orders provide no defence. but shall subsist until that time. 5) Since Chile. And to this extent. limited immunity. even in case of armed conflict. an asylum in that country is quite a different thing from his right to demand and insist upon security in such an asylum.immunities & privileges the sovereign state (the forum Ambassador enjoyed ceases the state) does not adjudicate on moment he leaves the country the conduct of a foreign state. Immunity of Ambassadors The Vienna Convention on Diplomatic Relations. even in case of armed conflict.immunity extends to both criminal & civil liability. 1988. the government of the country of the asylum shall deliver him up to the country where the crime was committed. 3) If the states with the most obvious jurisdiction (the Art.immunity from criminal and civil jurisdiction Art. Such personal immunity of the head of state persists to the present day: the head of state is entitled to the same immunity as the state itself. the state where the alleged torturer is found must prosecute or. Irregularity in manner of getting custody does not affect jurisdiction. ambassadors or other officials. to preserve the integrity of the activities of the foreign state during the period when he was ambassador. Sir Roque says: Origin of the ͞Ma-and-Pa͟ doctrine. Ker v. has a trial according to the forms and modes prescribed for such trials. . he merits no particular privileges or immunities as a person. 31. on proper demand and proceedings had therein.immunity from arrest Art. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador's time. like any other official of the state. attaching to the person of the head of state or ambassador and is a complete immunity. 1988 and the UK with effect from Dec. The right of the Peruvian government to voluntarily give a party. of its own accord. they are bound under treaty by its provisions WON such provisions would apply in the absence of treaty obligation. Nor can it be doubted that Peru could. 196111 covers the immunity of the Ambassador. y After his post is over. -Basic Principle Of IL that one . Illinois Ker was kidnapped from Peru & brought to Cook County. -Immunity is ratione personae. ratione personae while he was immunity by reason of the subject-matter. But. 29. RATIONE PERSONAE RATIONE MATERIAE of the Ambassador Under the Vienna Convention 10 Immunity of Head of state: .foreign state is entitled to -This continuing partial immunity procedural immunity from the is different from that enjoyed processes of the forum state. he isn͛t entitled to say that he shouldn͛t be tried for the crime with which he is charged in a regular indictment. and when in that trial and proceedings he isn͛t deprived of rights to which he is lawfully entitled. without any demand from the US. but shall subsist until that time. the ambassador. extradite to another country (universal jurisdiction). with respect to acts performed by such a person in the exercise of his functions as a member of the mission. he shall still enjoy these privileges and immunity until he leaves the country or on expiry of a reasonable period in which to do so.diplomatic representative of the foreign state in the forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. This limited immunity is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities. such privileges and immunities shall normally cease at the moment when he leaves the country. attaches to the official acts of every acting or former State organ 11 Art. in Ker͛s condition. doesn͛t provide that a party fleeing from the US to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled. Bernas: Immunity from Jurisdiction General rule: the jurisdiction of a state within its territory is complete and absolute. It provides that: y the Ambassador shall enjoy his immunity and privileges from the moment he takes up post.

But. But the purpose of the immunities given is functional. ͞Actionable violations of IL must be of a norm that is specific. or to breach international law in doing so. there was no separate treaty with such a prohibition. ACTA only jurisdictional. & piracy. FTCA͛s foreign country exception bars all claims based on any injury suffered in a foreign country. Sosa v. That Congress may have intended the reach of a criminal statute to extend beyond our borders does not mean that Congress also intended to give federal law enforcement officers unlimited authority to violate the territorial sovereignty of any foreign nation to enforce those laws. Tendency: narrow construction of immunity: covers only sovereign acts Limits on Sovereignty: -US-RP Bases Agreement ʹ transitory provision: complete immunity to limited immunity (limited to sovereign acts as opposed to proprietary acts) -but when sovereign? Proprietary? What about when building bases? Or the ZTE contract (state enterpriseͶact of Chinese state? China has no concept of private entities)? When buying helicopters.͟ Consequently.͟ Because the primary tortious act was the initiation and planning of Alvarez's abduction by the DEA agents. violation of safe conducts. Because a human rights norm recognizing an individual's right to be free from transborder abductions has not reached a status of international accord sufficient to render it ͞obligatory͟ or ͞universal.Valid extradition under international law ʹ treaty and offense must satisfy rule of double criminality (both at time of happening or commission and at the time of request. Aspiration has not yet ripened into obligation. 2. etc. absent a clear directive. On the part of the receiving state there lie certain obligations to protect the representative and his property and office. the offense must be defined in both territories).) from a country notorious for violation of torture. private vessels commissioned by the state. [2007 Bar] . Alvarez's arrest. scheming. Diplomatic and consular immunities . we cannot conclude that Congress has given the DEA unlimited enforcement powers abroad. (including the death penalty) . express or implied. to enable them to perform their functions properly. which are personal (they benefit the person).͟ The DEA agents who orchestrated Alvarez's arrest are law enforcement officers as defined by the FTCA because they are ͞empowered by law to execute searches. Alvarez established a tort committed in violation of the law of nations. On the Alien Tort Claims Act: US does not recognize a prohibition against transborder kidnapping. Although we recognize that the kidnapping and murder of DEA agents abroad necessitates the exercise of extraterritorial criminal jurisdiction. the torturer has becomeʹlike the pirate & slave trader before himʹ hostis humani generis. Alvarez sues US & paid kidnapper after he was acquitted on charges for which he was brought to the US. Kidnapping not an actionable norm under ACTA. an enemy of all mankind͟) In re Estate of Marcos Human Rights Litigation. extraterritorial application does not automatically give rise to extraterritorial enforcement authority.) were done in the US. etc. (͞[F]or purposes of civil liability. universal. to seize evidence. Sosa (District Court) Sir Roque says: . Nor can we say that there is a ͞universal͟ consensus in the sense that we use that term to describe well-entrenched customs of international law. armaments (for defense)Ͷstill sovereign acts. when we agree to limit territorial jurisdiction via the Bases Agreement (among others). And although the waiver of sovereign immunity under the FTCA excludes intentional torts such as false arrest. if during on-going armed conflicts. nor can it be said that there is international acceptance of such a norm. or to make arrests for violations of Federal law. were arbitrary because they were not ͞pursuant to law. when they are within the territory of another state. Official representatives of a state are given immunities and privileges. this exclusion is followed by an important proviso: It does not apply if the intentional tort is committed by an ͞investigative or law enforcement officer. his claim falls squarely within this law enforcement proviso. Difficult cases: transportationͶcivilian and sovereign character.much of the law governing diplomatic relations is customary law. etc. and thus the intentional tort exclusion does not apply. The Alien Torts Statute is a jurisdictional statute creating no new causes of action.UP Law B2009 Reviewer (Karichi Edition)   Page 53 of 130 Categories of exceptions: Sovereign immunity. on the understanding that the common law would provide a cause of action for the modest number of IL violations thought to carry personal liability at the time: offenses against ambassadors. it suffices to look to the historical antecedents. Sir Roque says: Seeming difference between sovereign immunity and immunity of an IO: none really. be an asylum seeker. on the part of the US or its agents to refrain from transborder kidnapping.͟ it cannot qualify as an actionable norm under the ATCA. & obligatory.Political crimes are defined in Extradition Treaty as being nonextraditable. if there is no conflict? -RTC of Makati: no complete immunity Tests: 1. person accused for such may apply for refugee status. State immunity ʹ the principle that the state may not be sued without its consent found in the Philippine Constitution is both municipal law and also international law applicable to foreign states. employees are immune for both functional and full immunity. that is. Nature of act ʹ whether sovereign or proprietary. and hence his detention. Personality of contracting parties ʹ trumped by purpose test (armaments sold by private entities to state to be used for defense). Machain (Supreme Court) Alvarez-Machain v. which covers both a head of state and the state itself. & Immunity of the representative of states or diplomatic and consular immunities. which persuade this Court that federal courts should not recognize claims under federal common law for violations of any IL norm with less definite content & acceptance among civilized nations than the 18th-century paradigms familiar when the ATS was enacted. This is based on the principle of equality of states: par in parem non habet imperium. At the time of Alvarez's abduction. the proximate cause of such injuries (planning. no cause of action given. The reasonable inference from history & practice is that the ATS was intended to have practical effect the moment it became law. The immunity of the sovereign head is seen as also communicated to the sovereign state. On the Federal Torts Claims Act: Although the injuries were suffered in Mexico. Our review of the international authorities and literature reveals no specific binding obligation. In deriving a standard for assessing Alvarez's claim.͟ A single illegal . regardless of where the tortious act or omission occurred.You are not required to extradite (for torture. the US-Mexico Extradition Treaty did not extend to transborder abduction and Claimant seeks damages for illegal arrest & wrongful detention. and so it falls under the headquarters doctrine exception to the foreign activities exception.

It follows that the State which prosecutes and punishes a person for that offence acts solely as the organ and agent of the international community. Eichmann v. it functioned as an organ of international law and acted to enforce the provisions thereof through its own law.. and such waiver may be explicit or by acquiescence. and Minister for Foreign Affairs. Sir Roque says: SC: Show injury from an official act. Federal Court said: No control over Myanmar. slavery. (c) the aggrieved State may condone the violation of its sovereignty and waive its claims. Special Circuit Court: Reversed. John Doe v. originally from Ker v. . UNOCAL was invested in as a separate company (joint venture). Myanmar: controlling shares in local subsidiary. that subject to this restriction every State may exercise a wide discretion as to the application of its laws and the jurisdiction of its courts in respect of acts committed outside the State. court need not undertake separate standing inquiry for equitable relief. if served by summons in US. Sir Roque says: Pipeline in Myanmar. . it is immaterial that the crimes in question were committed when the State of Israel did not exist. Functional immunity violated. therefore. and to punish them therefor. torture) Is kidnapping an international crime? Appellant is a "fugitive from justice" from the point of view of the law of nations. For purposes of establishing standing to seek injunctive relief to halt American corporation's involvement in gas pipeline project in Myanmar because of alleged continuing violations of human rights. (b) This also applies if the offender's contention be that the abduction was carried out by the agents of the State prosecuting him. kidnapping is not included in the list of actionable crimes. On manner of arrest (kidnapping from Argentina): (a) In the absence of an extradition agreement between the State to which a "fugitive offender" has been brought for trial and the country of "asylum" . but the sovereign right of the State aggrieved. including the claim for the return of the offender to its territory. . but the offender was not extradited . held UNOCAL liable. UNOCAL Burmese citizens sue for enslavement under the ATCA. . enforced disappearances. Attorney-General of Israel Appeal of conviction for crimes against humanity during the Holocaust. followed by the transfer of custody to lawful authorities & a prompt arraignment. . That view was based on the following two grounds: (1) It is precisely the conception of State sovereignty which demands the preclusion of any presumption that there is a restriction on its independence. state responsibility. available only for torture (before. Successful ACTA claim. . even by non-state actors. and even if there existed such an agreement . Claim in Federal Court under ACTA. so as to embrace offences committed outside its territory. ACTA: amended by Bush. On jurisdiction: The principle of territorial sovereignty merely requires that the State exercise its power to punish within its own borders. Head of Government. certain high-ranking officials in a state. both civil and criminal. it must also be conceded that the Court is not bound to investigate the manner and legality of the [arrest and]͙detention. Belgium International arrest warrant against Congo Foreign Minister protested as violation of customary IL with respect to diplomat͛s absolute immunity. is a State prevented from exercising it. since the crimes that were attributed to him are of an international character and have been condemned publicly by the civilised world. indigenous people forced to leave and then work. and metes out punishment to the offender for his breach of the prohibition imposed by the law of nations. in bringing the appellant to trial. it is no less true that in almost all of such States criminal jurisdiction has been extended . After the ICJ considered the nature of the functions . This jurisdiction was automatically vested in the State of Israel on its establishment in 1948 as a sovereign State. . Issue: Why principal company was held liable? Even if they only had minority shares and the management was with the ruling junta. manner of arrest does not affect jurisdiction. in accordance therewith. no cause of action provided in the law. included violation of law of nationsͶwar crimes. Universal jurisdiction over crimes against humanity. & (2) Even if it is true that the principle of the territorial character of criminal law is firmly established in various States. On Sosa: ACTA is available for victims of international crimes. Therefore. since in such a case the right violated is not that of the offender. and operation of pipeline was within discretion of parties who were not parties to lawsuit. by virtue of the principle of universal jurisdiction. Minister has since left the government. ACTA does not applyͶjurisdiction-giving only. . it is the universal character of the crimes in question which vests in every State the power to try those who participated in the preparation of such crimes. where bulk of corporation's initial capital investment had already been made. and outside its territory The moment it is admitted that the State of Israel possesses criminal jurisdiction both according to local law and according to the law of nations. Burmese citizens living in refugee camps in Thailand demonstrated existence of credible threat that they would be subjected to human rights violations allegedly committed in furtherance of pipeline project by showing that they are in danger of being forcibly repatriated to Myanmar. If plaintiff establishes standing to seek damages. There is a relation of acts of junta and personality of the mother company (passive investor). Consequently. either as result of Burmese attacks on refugee camps or Thai refoulement actions. and that only in so far as it is possible to point to a specific rule prohibiting the exercise of this discretion . . . MarcosͶdamages for political murders. Illinois). Issuance of injunction to halt American corporation's involvement in gas pipeline project in Myanmar because of Burmese government's alleged continuing violations of human rights was not likely to halt alleged human rights violations. enjoy immunities from jurisdiction in other states. crimes against humanity. Congo v. the Court will not investigate the circumstances in which he was detained and brought to the area of jurisdiction (Sir: the ͞Ma-and-Pa͟ doctrine. Diplomatic and consular agents. .. However. . Immunities accorded to ministers of foreign affairs in customary IL are accorded to ensure the effective performance of their functions on behalf of their states and not for their personal benefit. ACTA: for Hilao v. such as the Head of State. alleging that private security guards forced them to dislocate and then make dams. Court: Enforced slavery prohibition. violates no norm of customary IL so well defined as to support the creation of a federal remedy. now. not outside them. .UP Law B2009 Reviewer (Karichi Edition)   Page 54 of 130 detention of less than a day. Requirement: no break in the causation of events (commission must be in the US territory). every country has the right to try him. . .

Attribution of Conduct: * Organ of state (Arts. throughout the duration of his office. consisting of acknowledgment of breach. 18: State coerces another State in committing an IWA.UP Law B2009 Reviewer (Karichi Edition)   Page 55 of 130 exercised by a minister of foreign affairs. The mere issue and the circulation of the a/w. in that it failed to respect the immunity of that Minister and. Having once escaped the jurisdiction of the requesting state. 30: obligations in case of IWA: a. attributable to the State under IL. 12: breach . Religious and political offenses are not extraditable. if no restitution possible. > Principles on Extradition: 1. INTERNATIONAL RESPONSIBILITY ILC Draft Articles on State Responsibility Art. & b. 29: legal consequences of IWA do not affect continued duty to perform the obligation breached. treaty. enjoys full immunity from criminal jurisdiction and inviolability. how due process requirements work in an extraditin case: Secretary of Justice v. b. complies with the Extradition Treaty and Law. 10. Art. Art. Purganan & Crespo). Potential extraditees do not have the right to a hearing for the issuance of a warrant of arrest nor the right to bail granted by the RTC. Art. RP is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner. 7). constitutes a breach of an int͛l obligation of the State. This immunity and inviolability protect the individual concerned from any act of authority of another state which would hinder him or her in the performance of his or her duties. 35: responsible State obliged to make restitution (re-establish situation before IWA) to the extent that restitution is not materially impossible & burden is not out of proportion to benefit of restitution rather than compensation. Art. formal apology. Art. It is more akin. * Individual or group (Arts. Alvarez-Machain. Bernas: > Extradition ʹ the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted a crime. 17: State directs & controls another State in committing an IWA. 31. By entering into an extradition treaty. No state is obliged to extradite unless there is a treaty 2. Art. Injury includes any damage. Art. if continuing. 24: done to save a life in distress. But a state may surrender a fugitive if surrendering him is not contrary to the state͛s constitution. no other reasonable means. an extradition case is not one in which the constitutional rights of the accused are necessarily available. Art. > procedure is normally through diplomatic channels (how extradition rules ca be bypassed: US v. Art. Extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined.act of the State is not in conformity with what is required by the obligation. Belgium violated the immunities of the then Minister of Foreign Affairs of the Congo. 8. 11). as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 36: responsible State obliged to compensate for damage caused. WON it significantly interfered with Yerodia͛s diplomatic activity. 26: no preclusion if wrongfulness is ICOW an obligation arising under a preemptory norm of general IL. Purganan & Crespo Jimenez contests arrest warrant issued against him ICOW an extradition request by the US. 9. Defenses against attribution: wrongfulness of the act precluded if done: Art. 25: in necessity. although the latter have never been precisely defined. 37: responsible State obliged to give satisfaction if no restitution or compensation possible. USA v. if at all. not out of proportion to injury. not in a way so as to humiliate the responsible State. State Practice also does not show the existence of exceptions to the ministers of foreign affairs͛ immunity under customary IL. Art. There can be no distinction from acts which were performed in an ͞official͟ capacity and in a ͞private͟ capacity. 5. Lantion. responsible State obliged to make reparation for injury caused. caused by the State͛s IWA. 2: Internationally wrongful act of a State when conduct consists of an action or omission: a. to a court͛s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. more particularly. ICJ is unable to conclude that there exist exceptions under customary IL in regard to national courts upon examination of the rules concerning immunity or criminal responsibility of persons having official capacity contained in the legal instruments creating international criminal tribunals. 22: as a countermeasure under these Draft Articles. 4. The decisions of the Nuremberg and Tokyo international Military Tribunals and of the International Criminal Tribunal for the Former Yugoslavia do not deal with the question of immunities incumbent ministers of foreign affairs before national courts where they are accused of war crimes or crimes against humanity. Art. which may cover specific crimes only or all offenses considered criminal by both states. he when abroad. it concluded that his functions are such that. 23: due to force majeure. USA v. supported by its annexes & the evidence that may be adduced during the hearing of the petition. Art. The legal right to . Extradition. the reasonable prima facie presumption is that the person would escape again if given the opportunity. offer assurances of non-repetition. Art. 4. 16: State aiding or assisting another State in committing an internationally wrongful act (IWA). Art. & whether the person sought is extraditable. expression of regret. constituted a violation of an obligation of Belgium towards Congo. infringed the immunity from criminal jurisdiction and the inviolability enjoyed by him under IL. whether material or moral. Most treaties exclude religious and political offenses. Consequently. The proceedings are intended merely to assist the requesting state in bringing the accusedͶor the fugitive who has illegally escapedͶ back to its territory. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition. 32: internal law can͛t justify failure to comply with obligations Art. 21: in lawful measure of self-defense under the UN Charter. It is a process that is governed by treaty. covering any financially assessable damage including loss of profit established. Art. so that the criminal process may proceed therein. Differences in legal system can be an obstacle to interpretation of what the crime is 3. demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty. 6. cease the act.

Bad: it the state is tyrannical and its municipal laws are harsh and violative of human rights even of its own citizens. specially affects the State ii. or int͛l community as a whole& the breach: i.successful insurrectional movement Art. 30-to cease & desist.acting upon instruction or control (Nicaragua v. 48: non-injured State invoking responsibility ʹ obligation breached is owed to group of states.empowered Art. Art. > Minimum standard for treatment of people in your territory: not fixed. Art.acts ratified by the State itself > Illustrations: Pinoys employed as security guards in US Bases in Iraq. When a state admits into its territory foreign investments or foreign nationals it is bound to extend to them the protection of the law and to assume obligations concerning the treatment afforded them. composed of experts (subsidiary source of IL) nominated by states but acts independently & representative of all legal regimes of the world. ͞Minimum international standard͟ ʹ however harsh the municipal laws might be against a state͛s own citizens. > Corporations and shareholders: Barcelona Traction case: Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain. Is this constitutional? No. so radically changes the position of other states WITH REGARD TO further performance of the obligation Art.11. 8. look at substantive law. Now. but not if (or suspend. Prove both elements: breach + attribution 2. had a compromise agreement but preliminary ruling was that US was liable for agency. including that State. new obligations arise -this article is the contentious article: what constitutes ͞breach͟ 2. Art. it only says when there is breach of a treaty or a norm. reflects or is evidence of customary law > Evidence of Customary Norms ILC codified the norms: 1. humanitarian obligations prohibiting reprisals & obligations under preemptory norms of general IL. Art. Privacy (number of kids)Ͷexpanded due process rights. demand fulfillment of obligation & notify responsible State of decision to take countermeasures & offer to negotiate. beyond the nationality principle.de facto Art. Taking countermeasures won͛t excuse from dispute settlement procedure & respecting inviolability of diplomatic/consular agents. 49: injured State taking countermeasures against responsible state to induce compliance with obligation. 40: rules apply WITH REGARD TO serious breach under an obligation arising under a preemptory norm of general IL. Good: same benefits. Art. 31-reparation to status quo ante > Who can engage state responsibility: 1. in such a way as to allow resumption of performance. Widely accepted standard but abstract. then aliens would also be subject to such harsh laws. Claim under first part: for cessation & promise of non-repetition. ͞Organs͟ under IL includes all branches & instrumentalities of the gov͛t as defined under constitutional or internal law. rights affected. In RP. Art. UNOCAL used security guards against indigenous peoples to drive them away from their ancestral domains and then to force them to build dams. for the injured State or of beneficiaries. attributable to state (attribution) > Source of the principle of SR: ILC Draft Articles on State Responsibility. there is no conclusion on SR because there is no Convention adopting it. 2-if there͛s a breach. limited to nonperformance at time of taking the countermeasures. 9. & reparation. 2007 Bar: Mayor͛s EO banning contraceptives in private clinics so poor people lost access to family planning technology. Is it being an ultra vires act a defense? No.(most problematic) Art. under IHL. 42: injured State invoking another͛s responsibility. new obligation arises: responsibility to cease and desist. & is established for protection of collective interest. private security guards used in cell sites against NPAs. based on circumstances. extinguish all consequencesͶChorzow Factory case) . US provided funds. opinion juris: not under any compulsion to codify norms under IL but only norms they feel are law. 4: always (least problematic). > Does the Draft Articles say when there is SR? Sir: no. documents.UP Law B2009 Reviewer (Karichi Edition)   Page 56 of 130 Art. The only way to finish the project was to leave the identification of SR to substantive law. 2): a. are the security guards combatants (for the state) in non-int͛l armed conflict? Bernas: > Standard for the protection of aliens: Doctrine of ͞national interest͟ or ͞equality of treatment͟ ʹ aliens are treated in the same manner as nationals of the state where they reside. aliens should be protected by certain minimum standards of humane protection. But . premises. take countermeasures. 51: commensurate countermeasures: gravity of IWA. 5. After 80 years of drafting. State organs . If necessary to protect rights. if already taken) IWA has ceased & dispute is pending in appropriate tribunal/court (restraint or suspension not required if responsible State fails to implement settlement procedures in good faith). 53: terminate countermeasures upon compliance with obligation. US) Art. Art. Sir Roque says: What if a RP Army private shot a US Army personnel while drunk? Could a foot soldier bring about state responsibility assuming attack against the state? The act will engage SR because he is an agent of the state so he acts as part of an organ of the state (army). group of State. Draft Articles: 1. To determine SR. if they engage in firefights. Art. & obligation owed to int͛l community as a whole. defense: for security. Is this a violation of int͛l law? Could Mayor engage SR in behalf of the state? Yes (even ultra vires acts).10. > When do you incur SR? Requisites (Art. Int͛l Tribunal: between State and person in its territory. to guarantee non-repetition 3. 2. Gives rise to breach of obligation WITH REGARD TO treatment of aliens and their property. the State individually b. including injured one. State practice: representative of decisions held by courts all over 2. The contras in Nicaragua (US funded but Court said that low level support is insufficient to engage SR). 50: countermeasures do not affect: obligation to refrain from threat or use of force. assurance of non-repetition & reparation (restoration to status quo ante or compensation if no restoration possible. claim was WITH REGARD TO slavery. Duty: due diligence in protection of aliens and their property in your territory. no distinction as to nationality. private individuals. fundamental human rights protection. if breach is owed to: a. Art. > State responsibility in a nutshell: 1. How binding? See North Sea Continental Shelf cases: ILC Articles (Continental Shelf Convention)Ͷmandate of ILC is to codify int͛l law.Art. 52: before countermeasures. archives. breach of int͛l obligation b. Are they acting as agents? In Burma.

Harrison purported to act upon instructions given to him. France) French agents destroyed a Greenpeace. failure to protect the premises of the embassy/diplomatic mission y International law breach: gross negligence in duty of protecting aliens y Standard (not a definitive formula): nationality. the Rainbow Warrior. But as to the second statement. without Union Bridge͛s consent. 4 Rainbow Warrior (New Zealand v. the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty. and he did so under instructions which fix liability on the British government. and it was within Harrison͛s duty. he committed two mistakes in as much as it 1) was neutral property. The laying of the minefield could not have been accomplished without the knowledge of Albania (location. no evidence to link mob͛s attack to Iran 2. guard posts as strategic places). The Court said that the initial take-over of the embassy was not attributable to the state. and not a railway bridge. and in its methods of execution. Act of state organ. Whenever a shareholder͛s interests are harmed by an act done to the company. 11 state acknowledges and adopts the conduct 1. The passage was innocent both in its principle. and its subsequent sale. Albania would have been justified in view of these exceptional circumstances. it is to the latter that he has to look to institute appropriate action. New Zealand prosecuted 2 captured French agents of the Directorate General of External Security. the storekeeper of the Cape Gov͛t Railways at Port Elizabeth.UP Law B2009 Reviewer (Karichi Edition)   Page 57 of 130 such obligations are not absolute. Sir Roque says: y Art. and minimum standard of treatment y Substantive norm: Neer Claim y In the RP. & promised reparation. to forward material by rail. & restitution or compensation). Albania claims that its sovereignty was violated when UK later swept the Strait for more mines. Attribution would . Certainly. The consignment of the material to Blomfontein was a wrongful interference with neutral property. Int͛l vessel. Nothing was attempted by Albania to prevent the disaster. but not in prohibiting such passage or in subjecting it to the requirement of special authorization. any breach of an engagement involves an obligation to make reparation (note: wipe out as much of the consequences & return to status quo ante. length of coast as to strait. of which it is the organ. US Diplomatic Staff and Consular Staff (US v Iran) US Embassy & staff in Iran were seized by protestors. Dispute over France͛s demand for release & New Zealand͛s claim for compensation. Acts of organs of state. by Harrison. and in doing so. since it was designed to affirm a right which had been unjustly denied. As regards the notion of self-help. which were not unreasonable in view of the firing from the Albanian battery on May 15th. But. is there ratification under Art. the showing of support and encouragement of the detention of the hostages made the militants͛ acts that of the Iranian State. The ruling also provided that Major Mafart and Captain Prieur were to be released into French custody but were to spend the next 3 years on an isolated French military base in the Pacific. Applicable ILC Draft article: Art. 22 of the danger to which they were exposed. The UN Secretary-General's ruling required France to pay US $7 million to New Zealand and to undertake not to take certain defined measures injurious to New Zealand trade with the European Communities. A communiqué from the Prime Minister of France confirmed that agents acted under its instructions. the Melo Commission said that there was command responsibility liability only as far as Palparan went. while in harbour in New Zealand. Prosecutor v Tadic Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories Bosnia Case Union Bridge Company Claim (US v. the Court recognises the Albanian Government͛s complete failure to carry out its duties after the explosions and the dilatory nature of its diplomatic Notes as extenuating circumstances for the action of the United Kingdom. This liability is NOT AFFECTED by the fact that this was done under a mistake. Bloemfontein. an agent of the British gov͛t. Failure to protect aliens in territory. in issuing regulations in respect of the passage. The first statements made by the Iranian government were not sufficient to make the militants the agents of the state. Great Britan) Union Bridge claims damages arising out of the removal of the material from Port Elizabeth to the Imperial Military Railways. as railway storekeeper. to ensure respect for international law. Poland has a positive duty to respect and afford protection to the property rights of aliens living in its territory. Ratification of private acts. Failure to protect alien͛s property rights. or that the British had no intention to appropriate the material. This gave rise to Iran͛s international responsibility for the acts. Corfu Channel Case UK claims against Albania͛s mines planted in the Corfu Channel. In order to bring a claim in respect of the breach of such an obligation. In international law. So if GMA praises Palparan in her SONA for a job well done. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on Oct. without Iranian authorities attempting to prevent such but with later statements of support by the Ayatollah. The Court can only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law. 11? DC Decision on UNOCAL Chorzow Factory Case Poland͛s alleged illegal expropriation liability to German owners. the Court is also unable to accept it: between independent States the respect for territorial sovereignty is an essential foundation for international relations. & these grave omissions involve her international responsibility. and 2) was intended for a road. a State must first establish its right to do so. be present only when it is established that the acts were carried out in response to SPECIFIC INSTRUCTIONS from a competent organ of the State.

Iran Zafiro Claim (Great Britain v. If the personal responsibility of Castro were the question for decision. it is not intended by the rule to say that no wrongful act of an official acting in the discharge of duties entrusted to him can impose responsibility on a government under international law because such wrongful act must be considered to be ͞outside the scope of his competency. The nation is responsible for the debts contracted by its titular government until the obligation is discharged. Mexico) A mob killed three US nationals and Mexican police͛s attempt to quell the mob. The nation is responsible for the obligations of a successful revolution from its beginning. The property interest taken by the Government of Iran must be deemed to comprise the physical property as well as the right to manage the Project and to complete the construction in accordance with the Basic Project Agreement Bolivar Railway Company Claim (Great Britain v. and the part chargeable to unknown wrongdoers cannot be identified. Act of state organ. or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. through the government. In this case it cannot be disregarded that Starrett has been requested to resume the Project. But interest is not allowed because a considerable. the neb were on duty under the immediate supervision and in the presence of a commanding officer. though unascertainable part of the damage is not chargeable to the Chinese crew of the Zafiro. Nations do not die when there is a change of government. to bad faith. The ruling in this case has been codified in ILC Draft Art. thus requiring compensation under international law.UP Law B2009 Reviewer (Karichi Edition)   Page 58 of 130 Youmans Claim (US v. in order to constitute an international delinquency. Starrett Housing Corp. Applicable ILC Draft articles: Arts. the absence of civil or military control ashore. such is not the ground on which successful revolutions are charged. Duty of the state: to exercise due diligence to protect the person and property of aliens. 4 & 7 These are but expressions of a change of national will. or 2) done in a private capacity. v. with responsibility.͟ If this were the meaning intended by the rule. Mexico is liable for the acts of the soldiers whether 1) outside the scope of their authority. Neer Claim (US v. 10. 4 Claimants contend that their property interests in the housing project have been unlawfully taken by the Government of Iran which has deprived them of the effective use. it is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated. Applicable ILC Draft article: Art. it represented ab initio a changing national will. failure to protect aliens in territory. Assumption of control over property by a government does NOT automatically and immediately justify a conclusion that the property has been taken by the government. under the Mayor͛s instructions. Act of state organ. were circumstances calling for diligence on the part of those in charge of the Chinese crew to see to it that they were under control when they went ashore in a body. The proprietary of governmental acts should be put to the test of international standards. Successful insurrectionists. crystallizing in the finally successful resultͶsuccess demonstrated that from the beginning it was registering the national will. a private ship commissioned by the US military. but claims incurred by an unsuccessful revolution against Castro were not allowed. It has been proved that at least by the end of January 1980 the Government of Iran had interfered with the claimants' property rights in the project to an extent that rendered these rights so useless that they must be deemed to have been taken. The soldiers͛ participation in the murder cannot be considered as acts in their private capacity when it is clear that at the time of the commission of these acts. because. and that the treatment of an alien. then no wrongful act committed by an official could ever be considered as acts for which the government could be held liable. There was no effective control of the Chinese crew at the time when the real damage took place. . Mexico) US claims damages for Mexico͛s failure to exercise due diligence in prosecuting the murderer of an American. US) Claim with regard to acts of a Chinese crew of the Zafiro. Whether the insufficiency proceeds from deficient execution of an intelligent law OR from the fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial. should amount to an outrage. led to the open firing upon the house & more killings. Expropriation even without nationalization law. US is liable for the whole damage as the Chinese crew of Zafiro are shown to have participated to a substantial extent. Clearly. Defense: soldiers on shore leave. after his assumption to power. The nature of the crew. have been deemed to comprise also rights of a contractual nature closely related to the physical property. The Court noted that the Government of Iran did not issue any law or decree according to which the Zomorod Project or Shah Goli expressly was nationalized or expropriated. In this case it appears from the very nature of the measures taken by the Government of Iran in January 1980 that these measures were aimed at the taking of Shah Goli. control and benefits of their property by means of various actions authorizing. to willful neglect of duty. Claimants rely on precedents in international law in which cases measures of expropriation or taking. and the situation of the neutral property. it might be possible to hold him responsible for the claims incurred by the 2nd revolution as growing out of the revolution he had led. in looting houses in Cavite during the Spanish-US War of 1898. Venezuela) Claims were brought by Bolivar arising out of the revolution in Venezuela that brought Castro to power and against Castro himself. even though the State does not purport to have expropriated them and the legal title to the property formally remains with the original owner. However. primarily aimed at physical property. Claims in respect of contractual obligations incurred by both the old and new governments were allowed. However. approving and ratifying acts and conditions that prevented Starrett from completing the Project. Standard of treatment of aliens in territory. Responsibility comes because it is the same nation.

as in the case of the UN. now illegal . Government took over. VCLOT] f. VCLOT] e. Do not confuse IOs with the persons authorized to enter into treaties. fraud and inducement e. Liechtenstein says that there was a breach since he is not German. no permanent residence or business in Liechtenstein. If the treaty codifies a customary norm. In the case of other y y y y 12 Latin for "pacts must be respected. 52. When treaties are invalid: a. IOs͛ powers and privileges are limited by the constituent instrument that created them (Advisory Opinion on the Use of Nuclear Weapons). Court: no breach. Thus. effect of signature authentication of text 5. it may be implied from the functions of the organization." This means that every treaty in force is binding upon the parties to it and must be performed by them in good faith. 36 ʹ assent prescribed. Vienna Convention the Law of Treaties [VCLOT]). Art. Only states can enter into treaties Convention which allowed IOs to enter into treaties never took effect states are still unwilling to vest IOs with the power to enter into treaties. VCLOT] d. IOs have international personality (Reparations case: international personality of the UN). b. new customary law in conflict (valid now invalid) (wars. can sue 13 Art. Rankin v. mere signature = intent to be bound 2. Cases for definition of treaties: Abaya and Vibal Treaties: 1. Revolutionary government of Iran declared the agreement null and void via 1980 Single Article Act for the nationalization of Iranian oil industry. arbitrary act (breach) & attribution. Sir Roque says: y No need for direct taking. 64. hasty application for citizenship). temporary visits only. 62 . Art. Breger͛s Case: No breach because he had been given six months to leave. applied for Liechtenstein citizenshipͶordinarily requires residence for 3 years. by threat or use of force. error of fact of situation 8. Grounds for non-compliance: a. 62. y AMOCO v. the charter itself might specifically endow it with international personality. y State organ: Which state must espouse before the ICJ? Nottebohm case: Claimant of Liechtenstein citizenship. only states are members of IOs (Advisory Opinion on the Use of Nuclear Weapons). he felt unsafe and freely decided to leave. 13 Latin for ³things thus standing. y y organizations. Error of Fact [Art. 48. there may be a serious interference in property rights so as to render them useless = creeping expropriation or ͞constructive expropriation͟ y US v. whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (Art. y Dr. Fraud in inducement [Art. 2. all aliens don͛t have the right to stay. allows all states to have standing. no compensation.rebus sic stantibus has never been formally invoked! Barcelona Traction Case: erga omnes obligation Ͷ remedial principle. coercion g. on whom? General Rule: Signatories only because of principle of autonomy under domestic law Exception: a.´ This is a doctrine in international treaty law that stands for the proposition that a treaty may become inapplicable owing to a fundamental change of circumstances. no proof that the Guards coerced him to leave. it binds all. He must prove wrongful. therefore no signing needed.61. 26 6. Art. pour autrui ʹ grant rights to third states 7. unless there͛s a specification that ratification is required. heart of a treaty = pacta sunt servanda12 . Coercion [on representative. Fundamental change [Art. Art. Iran Tribunal: Article 5 should not be strictly construed. Court: nationalization is not illegal per se but it is illegal if done to escape obligations entered into by the state. but he asked for dispensation of such without explanation.UP Law B2009 Reviewer (Karichi Edition)   Page 59 of 130 and related agreements. 35 ʹ express acceptance (pacta tertiis: intended to be binding on third states provided they accepted in writing) c. has lived in Guatemala and wants to stay. lack of full powers b. . Iran: 30-year-long Khemco Agreement. On the other hand. But if it does not. and if there is no prompt and adequate compensation (includes lucrum cessans). and to deliver the apartments and collect the proceeds of the sales as provided in the Apartment Purchase Agreements. WON they were injured. International Organizations (IOs) cannot enter into treaties. Court: State with genuine link with him was Germany (born there. Immunities ʹ basis is not sovereignty but the need for the effective exercise of their functions. Immunity of international organizations: International Organizations ʹ an organization that is set up by treaty among two or other states.crime of aggression) [Art. Basis of claim: failure to observe due diligence in protecting property rights of aliens. 51. Iran: US ex-pat left Iran and claims unearned y wages. corruption f. it must be with the consent of the state. VIENNA CONVENTION ON THE LAW OF TREATIES y   y y y y y ͞Treaty͟ means an international agreement concluded between States in written form and governed by international law. He said that Iran supported the expulsion of aliens. VCLOT] b. the Revolutionary Guards were not insurrectionists. VCLOT] c. even without a nationalization law. Liechtenstein can͛t espouse. VCLOT] Exception to consensuality of states: peremptory norm of general IL or jus cogens customary norm that is nonderogable = all countries. 49.Art. The merely treaty restates it. what agents must show to bind the state in a treaty: ͞FULL POWERS͟ 4. violation of jus cogens c. cancelled contracts & allowed general turmoil & disorder to propagate. Binding nature on parties. new customary law/emergence of new norm d. principle of autonomy= binding only upon signatories/ parties 3. Guatemala says that he is German so it confiscated his property as prize of war (as an Ally). Supervening impossibility of performance [Art. jus cogensͶ substantive/normative principle If treaty requires ratification? Overt act required to be manifested: deposit instrument of ratification with the body specified as depositary or to the UN Secretary General if none y y .

charters. There shall be taken into account.acceptance. either because of its speedy procedure. conventions. 27 Internal law and observance of treaties: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. 43 Obligations imposed by international law independently of a treaty: The invalidity. it conflicts with a peremptory norm of general international law. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. ART. (c) any relevant rules of international law applicable in the relations between the parties. . 1999 between the Japanese Government and the RP Government is an executive agreement. (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. withdrawing from or suspending the operation of a treaty: A State may no longer invoke a ground for invalidating. 4. terminating. after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation. The signatories of the letters may be government Ministers. Swiss Minister of Foreign Affairs) Effect of non-deposit with UN Secretary General? Can͛t be enforced in any UN agency. EO 40 expressly recognizes as an exception to its scope and application those government commitments with respect to bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources. The procurement process for the implementation of the CPI project is governed by EO 40 and its IRR. 2.approval or accession. Means of expressing consent to be bound by a treaty: The consent of a State to be bound by a treaty may be expressed by: . the withdrawal of a party from it. (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. y Loan Agreement + Exchange of Notes = Executive Agreement. ART. The agreement consists of the exchange of two documents. 3. y It is stated that "treaties.ratification. each of the parties being in the possession of the one signed by the representative of the other. or . acceptance or approval. shall not in any way impair the duty of any State to fulfill any obligation embodied in the treaty to which it DEFINITION OF ͞TREATY Abaya v. as the case may be.by any other means if so agreed. or (b) it has expressed its consent to be bound by the treaty. 45 Loss of a right to invoke a ground for invalidating. including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty. 53 Treaties conflicting with a peremptory norm of general international law (jus cogens): A treaty is void if. diplomats or departmental heads. A special meaning shall be given to a term if it is established that the parties so intended. 60 and 62 if." Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these . 46. including the ICJ. 46 to 50 or ARTs. . ART. Ebdane Petition challenging the award of a road project to a Japanese firm. 11. pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. ART. ART. in addition to the text. Under the usual procedure. . The technique of exchange of notes is frequently resorted to. This rule is without prejudice to Art. 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force: A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification. The context for the purpose of the interpretation of a treaty shall comprise. a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Some Principles in the VCLOT: would be subject under international law independently of the treaty. ART. termination or denunciation of a treaty. or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation. The Exchange of Notes expressed that the two governments have reached an understanding concerning Japanese loans to be extended to the Philippines and that these loans were aimed at promoting our country͛s economic stabilization and development efforts. terminating. not RA 9184. declarations.exchange of instruments constituting a treaty. the accepting State repeats the text of the offering State to record its assent. as the case may be. or. as a result of the application of the present Convention or of the provisions of the treaty. to avoid the process of legislative approval. . memoranda of understanding. 27. ART. modus vivendi and exchange of notes" all refer to "international instruments binding at international law. protocols. sometimes. withdrawing from or suspending the operation of a treaty under ARTs. or the suspension of its operation. together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions. PH-P204 taken in conjunction with the Exchange of Notes dated Dec. For the purposes of the present Convention.signature. at the time of its conclusion. 31 General rule of interpretation: 1. y Loan Agreement No. agreements. y An ͞exchange of notes͟ is a record of a routine agreement that has many similarities with the private law contract. ART.UP Law B2009 Reviewer (Karichi Edition)   Page 60 of 130 y is specified (Vienna Convention: in Bern. 26 Pacta sunt servanda: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. until it shall have made its intention clear not to become a party to the treaty.

their rules apply to all of those instruments as long as they meet the common requirements. in spite of earlier finding of conflict of interest. The first of these is the Mutual Defense Treaty (MDT). whether denominated executive agreements or exchange of notes or otherwise.͟ SC has the view that it was deliberately made that way to give both parties a certain leeway in negotiation. The determination thereof involves basically a question of fact. executive agreement. Under the doctrine of incorporation as applied in most countries.PH. which declared that the RPJBIC loan agreement was to be of governing application over the project and that the JBIC Procurement Guidelines. But since the terminology used in the VFA is ambiguous. the Philippines. or accord primacy to. does not matter. In Philip Morris v. though it nevertheless remains in effect as a valid source of international obligation. CA. et al. DepEd v. the Mutual Defense Treaty was concluded way before the present Charter. as borrower. It is the VFA which gives continued relevance to the MDT despite the passage of years. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments: treaties and conventions. But they cannot engage in combat. Zamora Constitutionality of the VFA. . There is no reason why the policy behind Section 55. The holding of ͞Balikatan 02-1͟ must be studied in the framework of the treaty antecedents to which the Philippines bound itself. Kolonwel (Abaya II) Petition contesting award of World Bank-ADB book project for the DepEd to Vibal. 9184. Thus. Kolonwel. Both the Mutual Defense Treaty and the Visiting Forces Agreement. On ͞activities. It is this treaty to which the VFA adverts and the obligations thereunder which it seeks to reaffirm. which is presumed to verbalize the parties' intentions. which it refers to as the context of the treaty. Instead. Hence. 4 of R. Executive Secretary Constitutionality of the Balikatan joint exercise by the US and RP military. 7118.͟ [But SC said that: A treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Under the fundamental international law principle of pacta sunt servanda. treaty. Sir Roque says: Regarding the protest requirements under Sec 55:this is not true! There was already an award Hence. as reported from the saturation coverage of the media. as in all other treaties and international agreements to which the Philippines is a party. "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith. and 3) the payment of a non-refundable protest fee. we refer to the Vienna Convention on the Law of Treaties. as stipulated in the loan agreement. Bayan v. not because of any issue as to their truth.UP Law B2009 Reviewer (Karichi Edition)   Page 61 of 130 y instruments. begin. Sir Roque says: Test in international law: whether the act is sovereign or proprietary in character DBM v. 7118-PH) partake of an executive or international agreement within the purview of the Sec. Kolonwel Trading. the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources. and whatever its particular designation. disaster relief operations. It is still binding because it͛s all the same. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". in the form of a verified position paper. As conceived. to national legislation. sea search-and-rescue operations to assist vessels in distress. may sometimes be difficult of ready ascertainment. rules of international law are given a standing equal. shall primarily govern the procurement of goods necessary to implement the main project." DEFINITION OF ͞RATIFICATION͟ Lim v. and the like. as well as other elements may be taken into account alongside the aforesaid context. The Convention likewise dictates what may be used as aids to deduce the meaning of terms. The question as to WON foreign loan agreements with international financial institutions (Loan No.1 on the procedure for protest cannot be applied to foreign-funded procurement projects & RA 9184 doesn͛t show that Congress intended such a variance in the protest procedure.͟ SC cannot take judicial notice of the events transpiring down south. No. In this manner. RA 9184 not only prohibits but also penalizes conflict of interest Why? Cos it defeats the purpose of competitive bidding! Binding Treaty. a party to a treaty is not allowed to ͞invoke the provisions of its internal law as justification for its failure to perform a treaty. Sir Roque says: Whatever you call it. The present subject matter is not a fit topic for a special civil action for certiorari. medical and humanitarian missions. A treaty is defined under Article 2 of the Vienna Convention on the Law of Treaties as "an international instrument concluded between States in written form and governed by international law. SC does not take cognizance of newspaper or electronic reports per se. no need to protest. 2) the protest must be submitted to the head of the procuring entity. civic action projects such as the building of school houses.͟ Further. must be read in the context of the 1987 Constitution. The point where ordinary correspondence between this and other governments ends and agreements. Vibal v. 4 has been answered in the affirmative in Abaya. it was stated that ͞the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. which contains provisos governing interpretations of international agreements (Article 31 & 32): the cardinal rule of interpretation must involve an examination of the text. or impartiality. embodied in Sec. but for the simple reason that facts must be established in accordance with the rules of evidence. bound itself to perform in good faith its duties and obligation under Loan No. SC said that RTC lacked jurisdiction due to the failure to comply with the protest mechanism: 1) the protest must be in writing. accuracy. As a rule. Valid Treaty despite treatment as EA only by the other state. The protest mechanism is a built-in administrative remedy embodied in the law itself. the WB Guidelines on the conduct and implementation of the bidding/procurement process in question. It was not prescribed by an administrative agency tasked with implementing a statute through the medium of interpretative circulars or bulletins. In particular.A. not superior. visiting US forces may sojourn in Philippine territory for purposes other than military. the IABAC was legally obliged to comply with. whether embodied in a single instrument or in 2 or more related instruments.

The consent to be bound is expressed by ratification when: [1] the treaty provides for such ratification. has stated that the US government has fully committed to living up to the terms of the VFA. The signature does not signify the final consent of the state to the treaty. US need not submit the VFA to the US Senate for concurrence pursuant to its Constitution. instead of Section 25. subject to the concurrence of the Senate. In any case. or concurrence.͟ which they exhibit to the other negotiators at the start of the formal discussions. Eastern Sea Trading states that EAs are binding even without concurrence of the Senate or Congress because ͞the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage͙The validity of these has never been seriously questioned by our courts. In fact.͟ Ratification is an executive act. In international law. Can͛t Compel Transmittal. and binds itself further to comply with its obligations under the treaty. there is a compliance with the mandate of the Constitution. the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification. and capricious manner. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests 4. Executive Secretary Mandamus petition to compel transmittal to the Senate the signed copy of the Rome Statute of the International Criminal Court (being held by the DFA) for ratification. foreign military bases. the instrument is deemed effective upon its signature. The role of the Senate is limited only to giving or withholding its consent. It is equivalent to final acceptance. but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. much less be adjudged guilty of committing an abuse of discretion in some patent. or concurrence. but. ͞Ratification. or [4] the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative. gross. as the case may be. there is no difference between treaties and EAs in their binding effect upon states. each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. that is. For as long as the US acknowledges the VFA as a treaty. The power to ratify is vested in the President. an EA is binding. Isagani Cruz on the treaty-making process: 1. Sir Roque says: y Issue: VFA-concurred in by our senate. under international law. becomes the basis of the subsequent negotiations. or facilities shall not be allowed in the Philippines except (1) under a treaty (2) duly concurred in by the Senate and. it does NOT indicate the final consent of the state in cases where ratification of the treaty is required.͟ which is the next step. Pimentel v. ͞Negotiation͟ may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. The role of the Senate in relation to treaties is essentially legislative in character. the requirement of ratification of treaties would be pointless and futile. the President has the discretion even after the signing of the treaty by the Philippine representative WON to ratify the same. [2] it is otherwise established that the negotiating States agreed that ratification should be required [3] the representative of the State has signed the treaty subject to ratification. 3. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. y SC: VFA still binding on us/is still a binding treaty because it is not our business to dwell into the domestic law of the other contracting party. The power to ratify is vested in the President and not in the legislature. but not by the US senate. The President acted within the confines and limits of the powers vested in him by the Constitution. troops. the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty. Article XVIII reads: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases. when the Congress so requires. or was expressed during the negotiation. as long as the negotiating functionaries have remained within their powers. we are satisfied with the Senator͛s pronouncement that the US will recognize it. It is standard practice for one of the parties to submit a draft of the proposed treaty which. an executive agreement is as binding as a treaty. and (3) recognized as a treaty by the other contracting State. The document is ordinarily signed in accordance with the alternat. Commissioner of Customs vs. through Ambassador Hubbard. the records reveal that the US Government. through which the formal acceptance of the treaty is proclaimed. It is the ratification that binds the state to the provisions thereof. The DFA signing is not equal to ratification. the President may not be faulted or scarred. together with the counter-proposals. 2. It is inconsequential whether the US treats the VFA merely as an executive agreement (EA) because. The role of the Senate is limited only to giving or withholding its consent. Thus. SC: no to both. . to the ratification. claiming that Senate has the power to ratify and the RP has a ministerial duty to ratify the treaty since we signed it already. acceptance or approval of the signatory states. Ratification Is Executive.͟ which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. a state expresses its willingness to be bound by the provisions of such treaty. If that were so. There is no legal obligation to ratify a treaty. still. undertaken by the head of the state or of the government. Even if he erred in submitting the VFA to the Senate for concurrence under Section 21.UP Law B2009 Reviewer (Karichi Edition)   Page 62 of 130 Section 25. is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. is the VFA a treaty? Yes. ͞Signing͟ is the step primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties. ͞Exchange of the instruments of ratification. These representatives are provided with credentials known as ͞full powers." Under this provision. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. because this is to accord too strict a meaning to the phrase. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. to the ratification. By ratifying a treaty signed in its behalf. Where ratification is dispensed with and no effectivity clause is embodied in the treaty. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State.

It is incumbent upon this Court to inquire as to the actual length of time US military personnel stay in the Philippines. VIII Sec. Romulo as binding on the Philippines and declaring the Smith petition moot ʹ see Constitutional requirements cited in Bayan v. 5. GADALEJ in entering into patently unconstitutional agreements with US Ambassador and transferring custody over Smith the US Authorities. if ratification is required. Sir Roque says: y Treaty-making Process: 1. that State cannot be . 4. that of the ICJ. bound not to defeat the spirit of the treaty & comply with requirement of ratificationͶtransmittal to Senate. since Nicaragua had not deposited its instrument of ratification and it was therefore not a party to the Statute. can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention. a party accept the reservation as being compatible with the object and purpose of the Convention. and it is not a ministerial act. VFA is unconstitutional as it violates Sec. Such presence could not. which cannot be encroached by SC via a writ of mandamus. arose. otherwise. An objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I only upon ratification. y Issue on procedure: EO 459. If a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention. All that Nicaragua need have done was to deposit its instrument of ratification. Issues: (1) WON the Mutual Defense Treaty (MDT) applies to the VFA There is no room for application of the MDT in the VFA as there is no external armed attack on the Philippines to speak of. Having been made ͞unconditionally͟ and being valid for an unlimited period. considering that: a. The Court notes that the Nicaraguan declaration was valid at the time when the question of the applicability of the new Statute. 5 1987 Constitution) b. VFA violates petitioners͛ rights to due process and equal protection ʹ on custody of Smith 3. Signing 4. MDT does not apply to the VFA/contrary to the clear intent of the VFA. no reservation on the norm Salonga Petition (2007) Challenge to RTC order transferring Daniel Smith from the Makati City Jail to US custody under an agreement based on the VFA. VFA derogates and infringes on the exclusive power of the SC to promulgate rules of procedure (Art. It follows that the declaration had a certain potential effect which could be maintained for many years.UP Law B2009 Reviewer (Karichi Edition)   Page 63 of 130 such decision is within the competence of the President alone.US military personnel are in the Philippines the whole year round. Sir Roque says: You can make reservations on provisions as long as they are not incompatible with the object and purpose of the Convention Hence. signing enough. SC has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. XVIII of the Constitution. US US contested jurisdiction since Nicaragua allegedly had not yet ratified the instruments relating to the compulsory jurisdiction of the PCIJ. and it could have done that at any time until the day on which the new Court came into existence. It further considers that the estoppel on which the US has relied and which would have barred Nicaragua from instituting proceedings against it. Zamora with regard to Art. an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so is without legal effect. it can in fact consider that the reserving State is not a party to the Convention. Nicaragua v. 7: ͞shall͟ (no discretion on submission for concurrence). Sec. Grounds 1. as applied in light of the understanding and the assurances made during the ratification by the Senate of the VFA and. it is not disputed that the 1929 declaration could have acquired binding force. 25 Art. under the guise of a visit pursuant to the VFA . especially those in Mindanao. on the other hand. Public respondents gravely abused their discretion when they transferred custody of Smith to US authorities without court authority. it had retained its potential effect at the moment when Nicaragua became a party to the Statute of the new Court. be considered as temporary visits. XVIII. since under the system of the PCIJ a declaration was valid only on condition that it had been made by a State which had signed the Protocol of Signature of the Statute. regarded as being a party to the Convention. CA͛s GADALEJ in recognizing the agreement between US Ambassador and Sec. if. having regard to the source and generality of statements to the effect that Nicaragua was bound by its 1929 declaration. However. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others. signing is only for authentication of the document and there arises another obligation: duty not to do anything to defeat the purpose of the treaty prior to ratification. Section 25. in the context of current practices of the US armed forces . lack thereof makes it void ab initio. 5 par. It had not become binding under that Statute. Sir Roque says: y Ratification is compliance with the process to make it binding: 1) signing of senate. it is right to conclude that the constant acquiescence of that State in those affirmations constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court. The Court considers that. US military forces do not merely visit the Philippines but stay on indefinitely ʹ see issue 1 2. Ratification y If ratification is not required. more importantly. Negotiations 3. y State agent must have authority to negotiate: FULL POWERS. Until that moment it merely serves as a notice to the other State of the eventual attitude of the signatory State. Preliminaries 2. it can in fact consider that the reserving State is a party to the Convention. 2) concurrence of senate y Senate concurrence: What triggers it? Transmittal by Executive. cannot be said to apply to it. But after signing. (2) Whether the word visit means what it says. by any stretch of imagination. without any geographical and time limitations. Valid declaration of intent to ratify. It cannot be used to justify the transfer of custody of Smith.

31. economic. 33. 41: duty to respect laws of receiving state. & reporting to the Gov ͛t of the SS. taking statements regarding the voyage. civil registrar. & developing their economic. 4). detention or prosecution Art. 2. 37. c ultural & scientific relations & promoting friendly relations between SS & RS (c) asc ertaining by all lawful mea ns c onditions & dev ͛ts in R S͛ commercial. 5 (a) protecting interests of SS. RS may at any time notify the sending state (SS) that the consular officer is persona non grata or that any other member of the consular staff is not acceptable. 42: notification of arrest. ec onomic. consuls. Art. Nothing here shall be construed as preventing the performanc e of consular functions by a diplomatic mission. 35: freedom of communication Art. 1: which diplomatic representatives enjoy immunities. cultural & scientific relations . 5. 2. reporting to SS & giving info to pers ons interested. 22. & performing certain functi ons of a n a dministrative nature. Household staff Art. per laws of RS (h) safeguarding. 27. repres enting or arranging repres entati on for SS nationals before R S tribunals & authorities. 30. an agrement must first be obtained. There is no prescribed form. degrees. RS is under no obligation to give reasons for refusing an agrement (Art. 42: prohibition on professional or commercial practice for personal profit in the RS. Ambassadors. > Consuls and consular immunities . 4. negotiating with R S͛ Government. (HLR: espionage. c onducting investigations into a ny incidents during the voyage. Vienna Conventions on Diplomatic Relations and Consular Relations Functions DIPLOMATI C RELATIONS Art. protecting in RS the interests of the SS & its nationals. 27. VIENNA CONVENTION ON DIPLOMATIC RELATIONS. cultural & scientific life. Before the head of mission is sent to the receiving state (RS). Art. Art. in similar capacities. allowed if not made available els ewhere). SS shall either recall or terminate his functions with the consular post.repres enting s ending Sta te (SS) in rec eiving State (RS). 29. per R S laws. archives and interests of the SS. interests of minors & persons lacking full capacity who are nationals of SS (i) per RS proc edure. 34: freedom of movement Art. CONSULAR RELATIONS Art. 24. without prejudic e to the powers of R S authorities. not prohibited by R S laws or not objected to by RS in the agreement . its nati onals. Vienna Convention on Consular Relations (1967). 43: immunity from jurisdiction Art. While in transit to and from the accredited state & the sending state/diplomatic station does not apply when he is on vacation! Bernas: > Act of State Doctrine ʹ arose from a series of cases in the US where the issue was whether US courts could consider the validity of acts of a foreign state alleged to be in violation of international law. 33: RS must protect the consular premises. Art. 38. 23. VIENNA CONVENTION ON CONSULAR RELATIONS AND OPTIONAL PROTOCOLS Sir Roque says: Diplomatic Immunities: 1. 34. etc 2. (f) acting as notary. asc ertaining by all lawful mea ns c onditions & dev͛ts in R S. & s ettling disputes of any kind between the master. 36: communication and contact with nationals of the sending state Art.Consuls attend to administrative and economic issues such as the issuance of visas. 32. 44: liability to give evidence Art. 3 1.UP Law B2009 Reviewer (Karichi Edition)   Page 64 of 130 6. To the accredited state 2. 39: rights and privileges of the diplomatic mission. codification of the law is the Vienna Convention on Diplomatic Relations (1961). both individuals & bodies corporate (b) furthering dev͛t of c ommercial. The head of a consular post is admitted to the exercise of his functions by an authorization from the RS termed an exequatur. Art. 36. > Diplomatic immunities ʹ WITH REGARD TO political relations of states. (d) issuing pass ports & travel documents to SS nationals & visas or doc uments to persons wishing to travel to SS. not contrary to R S laws (g) safeguarding interests of SS nationals in s ucc ession mortis causa in RS. offic ers & s eamen per SS laws (m) performing functions entrusted to a c ons ular post by SS. 5: Consular functions Art. promoting friendly relations between the SS & the R S. 45: waiver of privileges and immunities full immunities functional immunities Diplomatic immunity applies only: 1. &. Spouses and kids 3. 41: personal inviolability of consular officers Art. (e) helping & assisting nationals of SS. 31. Art: 3: functions of the diplomatic mission. Art. 3. examining & stamping the s hip's papers. to get provisional measures for preservation of rights & interests of absent nationals (j) trans mitting judicial & extrajudicial doc uments or executing letters rogatory or commissions to take evidenc e for SS c ourts (k) exercising rights of supervision & ins pection per laws of SS in respect of SS͛ vess els & aircraft & crew (l) extending assistanc e to vess els & aircraft in (k) & to their crews. Diplomatic relations are purely by mutual consent. Diplomatic staff 4. 9: persona non grata.

6. Par. charges d'affaires accredited to Ministers for Foreign Affairs. either by the head of the mission or. Hea ds s hall have prec edenc e over cons ular offic ers not having that status. Alterations in the credentials of a head of mission not involving any c hange of class s hall not affect his precedenc e. a c harge d'affaires ad interim shall act provisionally as head of the mission. 11 were pres ented to R S. an acting head of post may act provisionally as head of the consular post. notify SS that the head of the mission or any member of the diplomatic staff of the mission is persona Art.UP Law B2009 Reviewer (Karichi Edition) Classes of Heads   Page 65 of 130 Art. Except as c onc erns prec edence & etiquette. If the head of a consular post is unable to carry out his functions or the position of head of c ons ular post is va cant. 5 1. Art. his precedenc e shall be determined acc ording to the date of the provisional a dmission. in no way restricts the right of any of the Contracting Parties to fix the designation of c ons ular officers other than the heads of cons ular posts. a member of the administrative and tec hnical staff may. 2 of Art. with the consent of RS. In cas es where no member of the di ploma tic staff of the mission is present in the rec eiving State. The full name of the acting hea d of post s hall be notified either by the diplomatic mission of the SS or. RS may at any time & without having to explain its decision. Order of precedenc e as between 2 or more hea ds who obtained the exequatur or provisional a dmission on the same date s hall be determined per the dates on which their commissions or si milar instruments or the notifications referred to in par. This article is without prejudice to a ny practice accepted by the RS regarding the precedenc e of the repres entative of the Holy See. with the c ons ent of the RS. 1 of this Art. there shall be no differentiation between heads of mission by reason of their class. the provisions of the pres ent Conventi on shall apply to him on the same basis as to the hea d of the consular post conc erned. (c) vic e-c ons uls. 18 Two or more States may. Hea ds of mission are divided into 3 classes: 1. 15 1. ra nk acc ording to the dates they ass umed functi ons as acting hea ds per in the notifications given under par. 2. however. unless there is express objecti on by any of the RSs . 15. Art. 2. be designated by the SS to be in c harge of the current administrative affairs of the mission. Hea ds of mission s hall take precedenc e in their respective class es in the or der of the date a nd time of taking up their functions in accor danc e with Article 13. 19 1. If SS accredits a head of mission to 1 or more other States it may establish a diplomatic mission hea ded by a c harge d'affaires ad interim in eac h State where the head of mission has not his permanent sea t. RS shall not. in cas e he is unable to do s o. 3 of Art. . RS may make the a dmission as acting hea d of post of a person who is neither a diplomatic agent nor a consular officer of the SS in the R S c onditional on its consent. this precedenc e s hall be maintained after the granting of the exequatur. SS may. 3. Acting heads of posts s hall rank after all hea ds &. 3. 5. As a general rule. Hea ds of consular posts are divided into 4 classes: (a) c ons uls-general. (b) cons uls. 3. 3. 14 1. 2. 2. 16 1. minist ers & internunci os accredited to Hea ds of State. The name of the c harge d'affaires ad interim s hall be notified. if he is unable to do s o. be obliged to grant to a n acting hea d of post a ny facility. to the Ministry for Foreign Affairs of the R S or to the authority designated by that Ministry. Hea ds of consular posts shall rank in eac h class accor ding to the da te of the grant of the exequatur. RS may at any time notify SS that a c ons ular offic er is persona non grata or tha t a ny other member of the c onsular staff is not acc eptable. envoys. Art. 3. in the circumsta nces referred to in paragraph 1 of this Article. as between themselves. 9 1. 2. Art. A head of mission or a ny member of the diplomatic staff of the mission may act as repres enta tive of the SS to any IO. Precedence as to Heads Art. Temporary head Persona non grata Art. by the Ministry for Foreign Affairs of the SS to the Ministry for Foreign Affairs of the RS or suc h other ministry as may be agreed. 2. in the order & per rules laid dow n in the foregoing paragraphs. or if the hea d of the mission is unable to perform his functions. 4. accredit a head of mission or assign any member of the diplomatic staff to more than 1 State. by any competent authority of the SS. after it has given due notification to RSs conc erned. if the RS does not object thereto. Art. ambassadors or nuncios accredited to Hea ds of State. a member of the diplomatic staff of the diplomatic mission of the SS in the R S is designated by the SS as an acting head of post. The competent authorities of the RS s hall afford assistanc e and protection to the acting hea d of post. 6 Two or more States may accredit the same person as head of mission to a nother State. he shall. this notification s hall be given in adva nc e. 9 1. unless objecti on is offered by the RS. (d) cons ular agents . 4. If the head. or. & other hea ds of mission of equivalent rank. Art. SS s hall either recall the person or terminate his functions with the c ons ular post. if that State has no such mission in the RS. by the head of the c ons ular post. appoint the same person as a consular officer in that State. 16 1. 2. 23 1. Multiple Posts Art. privilege or immunity which the hea d of the consular post enjoys only s ubject to conditions not fulfilled by the acting hea d of post. 2. c ontinue to enjoy diplomatic privileges a nd immunities. before obtaining the exequatur is admitted to the exercise of his functions provisionally. When. Honorary c ons ular offic ers who are hea ds s hall rank in each class after career hea ds. While he is in charge of the post. If the post of head of the mission is vacant.

regional or municipal. unless he hol ds it on behalf of the SS for the purposes of the mission. national. articles for the personal us e of a diplomatic agent or members of his family forming part of his household. Personal baggage acc ompanying c ons ular offic ers & members of their families forming part of their hous eholds s hall be exempt from inspection. The nati onal flag of the SS may be flown & its c oat-of-arms dis played on the building occupied by the c ons ular post & at the entranc e door thereof. regulations and usages of the RS.. personal or real. 34 A diplomatic agent s hall be exempt from all dues & taxes. mortgage dues and stamp duty. registration. Art. Art. RS is not obliged to give to SS reasons for its decision. 4. 2.UP Law B2009 Reviewer (Karichi Edition)   Page 66 of 130 2. articles for the official us e of the mission. (b) dues or taxes on private immovable property situated in the territory of RS. 20 The mission a nd its hea d shall have the right to us e the flag and emblem of the sending State on the premises of the mission. In the exercise of this right. Suc h c ons ent may be assumed in case of fire or other disaster requiring prompt protective action. If SS refus es or fails within a reas onable period to carry out its obligations under par. WITH REGAR D TO immovable property. including the residence of the head of the mission. having its source in the RS a nd capital taxes relating to investments made in commercial or fina ncial undertakings RS. (e) c harges levied for specific s ervices rendered. s ubject to the provisions of paragraph (b) of Article 51. Use of SS͛ flag & emblem Inviolability of premises Art. Art. except with the cons ent of the hea d of the mission. levied by the RS. 4 of Article 39. 1 & 3 of this Article. SS shall either recall the person or terminate his functi ons with the mission. In cas es in pars. 1. regard s hall be had to the laws. The agents of the RS may not enter them. 2. RS authorities shall not enter that part of the c ons ular premises which is used exclusively for the purpos e of the work of the consular post except with the consent of the head of the consular post or of his designee or of the hea d of the diplomatic mission. 2. Such ins pection shall be carried out in the presence of the c ons ular offic er or member of his family conc erned. If SS refus es or fails within a reas onable time to carry out its obligations under par. (d) dues a nd taxes on private income. 2. Art. dues & taxes on private inc ome having its source in the RS & capital taxes on investments ma de in commercial undertakings in the RS. s ubject to the provisions of Article 32. other than suc h as represent pay ment for specific services rendered. 2. s uccession or inheritance duties levied by the R S. before entering on his duti es with the cons ular post. except: (a) indirect taxes of a kind which are normally inc orporated in the price of goods or services. a nd duties on transfers. subject to the provisions of Article 32. national. if alrea dy in RS. Consular officers a nd c ons ular employ ees a nd members of their families forming part of their hous eholds shall be exempt from all dues a nd taxes. 3. non grata or that any other member of the staff of the mission is not acceptable. 2. or articles the import or export of which is prohibited by the laws and regulations of the RS or which are subject to its quarantine laws and regulations. on: 1. 5. or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the R S. except: 1. This exemption s hall not apply to suc h dues & taxes payable under RS law by persons contracting with SS or the hea d of the mission. 50 1. 49 1. 3. 3. indirect taxes of a kind whic h are normally inc orporated in the price of goods or s ervices. 31 1. taxes. s uccession or inheritance duties. c ourt or record fees. including capital gains. Tax exemption Art. (c) estate. RS shall permit entry of & grant exemption from all customs duties. personal or real. . subject to the provisions of Article 23. estate. cartage & similar services. RS is under a special duty to take all appropriate steps to protect the premis es of the mission against a ny intrusion or damage and to prevent a ny disturba nce of the peac e of the Article 29 1. 3. regional or municipal dues & taxes in res pect of the premises of the mission. taxes. 2. regional or municipal. (f) registration. Members of the c ons ular post who employ pers ons whose wages or salaries are not exempt from income tax in the RS shall obs erve the obligations which the laws a nd regulations of tha t State impos e upon employ ers conc erning the levying of inc ome tax. A person may be declared non grata or not acceptable before arriving in RS͛ territory. Premises of the mission s hall be inviolable. A person appointed as a member of a consular post may be declared unacc eptable before arriving in the territory of RS or. 3. unless there are serious grounds for presuming that it c ontains articles not c overed by the exemptions mentioned in paragraph 1 of this Article. 23 1. charges levied for s pecific services rendered. 36 1. RS shall permit entry of & grant exemption from all customs duties. cartage and similar services. including articles intended for his establishment. (b) articles for the pers onal use of a cons ular offic er or members of his family forming part of his hous ehold. Consular premis es s hall be invi olable to extent herein provided. mortgage dues and stamp duties. 2. R S may either withdraw the exequatur from the person or c ease to c onsider him as a member of the consular staff. 2. whether owned or leased. including articles intended for his establishment. Such ins pection shall be conducted only in the pres ence of the diplomatic agent or of his authorized representative. SS & the hea d of the mission shall be exempt from all national. & related c harges other than c harges for storage. Consular employ ees shall enjoy the privileges & exemptions s pecified in paragraph 1 of this Article in respect of articles i mported at the time of first installation. 22 1. The SS shall have the right to the us e of its national flag & c oat-of-arms in the RS per provisions of this Article. c ourt or rec ord fees. dues & taxes on private immovable property in R S territory. on: (a) articles for the official use of the c ons ular post. Exemption from duties & customs Art. subject to par. on the residenc e of the hea d of the c onsular post & on his mea ns of transport when us ed on official business. SS shall withdraw his appointment. Art. and related c harges other than charges for storage. The articles intended for consumption shall not exc eed the quantities nec essary for direct utilization by the persons c onc erned. 4. 6. It may be ins pected only if there is s erious reason to believe tha t it c ontains articles other than thos e referred to in s ub-paragraph (b) of paragraph 1 of this Article. RS may refuse to rec ogniz e the person as a member of the mission. Members of the s ervice staff s hall be exempt from dues a nd taxes on the wages which they rec eive for their s ervices. The personal baggage of a diplomatic agent s hall be exempt from ins pecti on. 2. and on his mea ns of transport.

& prompt. & provided that suc h meas ures can be taken without infringing the inviolability of his person or residence. or of criminal proc eedings being instituted against him. of a member of the cons ular staff. Art. The provisions of par. 41 1. shall be exempt from all dues & taxes in the RS. property of the consular post & its means of tra nsport s hall be immune from any form of requisition for purpos es of national defenc e or public utility. in the circumsta nc es in par. 25 The functi ons of a member of a c ons ular post shall c ome to an end inter alia: (a) on notification by SS to RS that his functions have c ome to an end. consular officers s hall not be c ommitted to prison or liable to any other form of restriction on their personal freedom save in executi on of a judicial decision of final effect. 4. No measures of execution ma y be taken in respect of a diplomatic agent exc ept in the cases under herein s ub-par. freedom or dignity. however. 29 The person of a diplomatic agent s hall be inviolable. & the rec eipts for suc h fees & charges. Art. The receiving Sta te shall trea t him with due res pect a nd shall take all appropriate steps to prevent a ny atta ck on his person. His papers. 43 The functi on of a diplomatic agent comes to a n end. 2 of Article 9. Private residenc e of a diplomatic agent shall enjoy the same inviolability & protection as the premises of the mission. exceptions Art. 3. Consular officers & consular employ ees s hall not be amenable to the jurisdiction of the judicial or administrative authorities of RS in respect of acts performed in the exercise of c ons ular functions. administrator. 1 of this Article shall not. 2. 2 of this Article. A diplomatic agent is not obliged to give evidenc e as a witness. 2. fur nishings & other property thereon & the mea ns of transport of the mission s hall be immune from search. RS shall notify SS through the diplomatic channel. on notification by SS to R S that the function of the diplomatic agent has come to a n end. it has become nec essar y to detain a consular officer. 39 1. 3. R S shall promptly notify the hea d of the c ons ular post. unless he holds it on behalf of SS for purposes of the mission. Art. 3. 43 1. exc ept in the cas e of a grave crime and purs uant to a decision by the competent judicial authority. Consular officers s hall not be liable to arrest or detention pending trial. Nevertheless. 2. except in the cas e s pecified in par. He shall not be liable to any form of arrest or detention. End of function Tax exemption of fees & charges Inviolability of agent/officer Art. H e s hall also enjoy immunity from its civil and a dministrative jurisdiction. 2. the proc eedings shall be c onducted with the respect due to him by reason of his official position &. all possible steps s hall be taken to avoid i mpeding performa nc e of cons ular functions. Subject to par. a n a ction relating to succ ession in whic h the di plomatic agent is involved as exec utor.UP Law B2009 Reviewer (Karichi Edition)   Page 67 of 130 3. Consular premis es. Should the latter be himself the object of s uch meas ure. mission or i mpairment of its dignity. (b) & (c) of par. 30 1. If criminal proc eedings are instit uted against a c onsular officer. R S is under a s pecial duty to take all appropriate steps to protect the c onsular premises against any intrusion or damage and to prevent a ny disturba nce of the peac e of the c onsular post or impairment of its dignity. property.s (a). or (b) by a third party for damage arising from an accident in RS caus ed by a vehicle. vessel or aircraft. apply in res pect of a civil action either: (a) arising out of a c ontract concluded by a c ons ular offic er or a c ons ular employ ee in which he did not c ontract expressly or impliedly as an agent of the sending State. Art. The consular post may levy in RS territory the fees & c harges provided by SS laws for c ons ular acts. 28 The fees and c harges levied by the mission in the c ourse of its official duties shall be exempt from all dues and taxes . Premises of the mission. pending trial. 1. 31 1. Except in the cas e s pecified in par. s hall also enjoy inviolability. 2. The sums collected in the form of the fees & c harges in par. freedom or dignity. Art. (b) on withdrawal of the exequatur. 42 In the event of the arrest or detenti on. . Art. 2. 2. on notification by RS to SS that. it refuses to recogniz e the diplomatic agent as a member of the mission. adequate & effective c ompensation s hall be paid to the SS. in accorda nc e with par. 1 of this Article. requisition. in a manner which will hamper the exercise of c ons ular functions as little as possible. the proc eedings against him s hall be instituted with the mini mum of delay. If expropriation is nec essary for s uch purposes. inter alia: 1. attachment or exec ution. 1 of this Article. Immunity from jurisdiction. Art. Art. 1 of this Article. 1 of this Article. c orrespondence &. except as in par. When. (c) on notification by R S to SS tha t the RS has c eased to c onsider him as a member of the c ons ular staff. A diplomatic agent s hall enjoy immunity from the criminal jurisdiction of RS. 3. heir or legatee as a private person & not on behalf of SS. he must appear before the c ompetent authorities. 3 of Art. a real action relating to private i mmovable property situated in RS territory. 40 RS shall treat c onsular officers with due res pect & s hall take all appropriate steps to prevent any attack on their person. except in the case of: 1. a n a ction relating to any professional or commercial activity exercised by the di ploma tic agent in RS outside his official functions. furnis hings. Art. 31.

43 & 44. The waiver of immunity from jurisdiction for the purpos es of civil or administrative proc eedings shall not be deemed to imply the waiver of immunity from the measures of exec ution res ulting from the judicial decision. 4. In the event of the death of a member of the consular post. Every member of the c ons ular post s hall enjoy herein privileges & immunities from the moment he enters R S territory on proc eeding to take up his post or. RS shall permit the withdrawal of the movable property of the dec eased. Art. The initiation of proceedings by a consular officer or a consular employ ee in a matter where he might enjoy immunity from jurisdiction under Article 43 shall preclude him from invoking i mmunity from jurisdiction in respect of any c ounter-claim directly connected with the principal claim. 1 of this Article or from the date of their entry into R S territory or from the date of their bec oming a member of suc h family or private staff. Every person entitled to privileges & immunities s hall enjoy them from the moment he enters R S territory on proceeding to take up his post or. They also have a duty not to interfere in the internal affairs of that State. Art. even in case of armed c onflict. 3. In that event. a s eparate waiver s hall be nec essary. the member s of his family forming part of his hous ehold shall c ontinue to enjoy the privileges & immunities acc orded to them until they leave RS or until the expiry of a reas onable period enabling them to do so. 42 A diplomatic agent s hall not in RS practic e for personal profit a ny professional or commercial activity. it is the duty of all persons enjoying s uch privileges & immunities to res pect RS laws. & members of the families of s uch . 2.UP Law B2009 Reviewer (Karichi Edition)   Page 68 of 130 Waiver of immunity Start & end of immunities & privileges Respect for RS laws 4. 26 RS shall. his private staff͛s privileges & shall normally c ease at the moment when the person concer ned leaves RS or on the expiry of a reasonable period in which to do s o. WITH R EGARD TO acts performed by such a pers on in the exercise of his functions as a member of the mission. Without prejudic e to their privileges & i mmunities. 2. 3 of this Article. the members of his family shall c ontinue to enjoy the privileges & immunities to whic h they are entitled until the expiry of a reasonable period in which to leave the country. grant to members of the consular post & members of the private staff. 41. that if s uch persons intend leaving RS within a reas onable period thereafter. 55 1. 3. & shall be c ommunicated to RS in writing. 44 RS must. 57 1. Waiver of immunity from jurisdiction in res pect of civil or administrative proc eedings shall not be hel d to i mply waiver of i mmunity in respect of the exec ution of the judgment. But. Art. Art. 2 of this Article. Career consular officers s hall not carry on for personal profit a ny professional or c ommercial activity in R S. 53 1. Art. WITH REG ARD TO acts performed by a consular officer or a consular employ ee in the exercise of his functions. 2. 39 1. from the moment when his appointment is notified to the Ministry for Foreign Affairs or s uch other ministry as may be agreed. Such immunity from RS jurisdiction does not exempt him from SS jurisdiction. 41 1. (a) of this paragraph or to members of his private staff. Initiation of proceedings by a diplomatic agent or by a person enjoying i mmunity from jurisdiction under Article 37 shall preclude hi m from invoking immunity from jurisdiction in respect of a ny c ounter-claim directly c onnected with the principal claim. whichever is the latest. exc ept any property ac quired in the country the export of which was prohibited at the time of his dea th. 3. 2. Art. Privileges & i mmunities shall not be accor ded: (a) to c ons ular employees or to members of the s ervice staff who carry on any private gainful occupation in RS. No profit Armed conflict Art. Members of the family of a member of the consular post forming part of his hous ehold & members of his private staff s hall receive the privileges & immunities from the date from whic h he enjoys privileges & immunities per par. All official business with RS entrusted to the mission by SS shall be c onducted with or through the Ministry for Foreign Affairs of RS or s uc h other ministry as may be agreed. (b) to members of the family of a person referred to in s ub-par. whic hever is the sooner. 4. 32 1. whichever is the sooner. 2. (c) to members of the family of a member of a consular post who themselves carry on any private gainful occ upation in RS. SS may waive. the said offices shall not be c onsidered to form part of the c ons ular premises. privileges & i mmunities s hall come to an end when they c ease to belong to the household or to be in the s ervice of a member of the c ons ular post. When the functions of a person enjoying privileges & immunities have c ome to an end. provided that the premis es assigned to them are separate from thos e us ed by the cons ular post. But. other than RS nationals. In the cas e of the persons in par. In cas e of the death of a member of the mission. 4. Premises of the mission must not be us ed in any ma nner incompatible with functions of the mission per the Convention. 2 of this Article shall not exclude the possibility of offices of other institutions or agencies being installed in part of the building in which the consular premises are situa ted. The consular premises s hall not be used in any manner incompa tible with the exercise of c ons ular functions. if already in its territory. Without prejudic e to their privileges & i mmunities. for which a separate waiver shall be nec essary. from the moment when he enters on his duties with the c ons ular post. When the functions of a member of the c ons ular post have c ome to an end. The waiver shall in all cases be express. Par. immunity s hall continue to s ubsist. Art. other tha n R S nationals. but s hall subsist until that time. Art. any of the privileges & immunities provided for in Arts. their privileges & i mmunities s hall subsist until the ti me of their departure. 4. grant facilities in order to enable persons enjoying privileges & i mmunities. or on expiry of a reas onable period in which to do s o. s uch privileges & immunities shall normally c ease at the moment when he leaves the c ountry. 5. his family͛s. Esta te. i mmunity from jurisdiction shall continue to s ubsist without limitation of ti me. exc ept as in par. it is the duty of all persons enjoying suc h privileges & immunities to res pect the laws & regulations of RS. even in cas e of armed conflict. in respect of s uch meas ures. WITH REGAR D TO a member of the c ons ular post. if already in its territory. 2. 3. but s hall subsist until that time. even in case of armed c onflict. even in cas e of armed c onflict. successi on & inheritanc e duti es s hall not be levi ed on movable property the pres enc e of which in RS was due solely to the pres enc e there of the dec eas ed as a member of the mission or as a member of the family of a member of the mission. Art. 45 1. & to members of their families forming part of their hous eholds irrespective of nati onality. In the event of the death of a member of the mission not a national of or perma nently resident in R S or a member of his family forming part of his hous ehold. The immunity from jurisdiction of diplomatic agents & of persons enjoying immunity under Article 37 may be waived by SS. They have a duty not to interfere in the inter nal affairs of that State. 2. rules of general IL or special agreements between the SS & RS. his. 3. 3. Waiver must always be express . provided.

If criminal proc eedings are instituted against s uch a consular officer. 45 If diplomatic relations are broken off between 2 States. in respect of official acts performed in the exercise of his functi ons . 2. Art. In the event of the temporary or permanent closure of a consular post. 38 1. Other members of the consular post who are na tionals of or permanently resident in RS & members of their families. In the event of the severanc e of consular relations between 2 Sta tes: (a) RS shall. &. res pect & protect the premises of the mission. shall enjoy facilities. sub-pars/ (b) & (c) of par.UP Law B2009 Reviewer (Karichi Edition)   Page 69 of 130 nec essary time & facilities to enable them to prepare their departure & to leave at the earliest possible moment after the terminati on of the functions of the members. 27 1. SS may entrust the c ustody of the premises of the mission. respect & protect the consular premis es. 1 of this Article. It must. Thos e members of the families of members of the c ons ular post & thos e members of the private staff who are thems elves nationals of or permanently resident in R S shall likewise enjoy facilities. It shall. that c onsular post may be entrusted with the custody of the premises of the consular post which has been clos ed. Other members of the staff of the mission & private servants who are nati onals of or permanently resident in RS shall enjoy privileges & i mmunities only to the extent admitted by RS. c ons ular offic ers who are nationals of or permanently resident in RS shall enjoy only immunity from jurisdiction & pers onal inviolability in res pect of official acts performed in the exercise of their functi ons. SS may entrust the protection of its interests & of its nationals to a third State acc eptable to RS. with the property contained therein & the c onsular archives. Agent/officer who is a RS national/ permanent resident Art. plac e at their dis posal necessary means of tra nsport for themselves & their property other tha n property acquired in RS the export of which is prohibited at the time of departure. & members of the families of c onsular officers in par. if needed. exc ept when he is under arrest or detention. 2. sub-par. . although not repres ented in RS by a diplomatic mission. even in cas e of armed conflict. Art. (a) of herein par. End of relations Art. Except insofar as additional privileges & immunities may be granted by R S. even in cas e of armed c onflict. Except in s o far as a dditional facilities. or (b) if SS has no di ploma tic mission & no other c onsular post in R S. (b) SS may entrust the custody of the c ons ular premises. be conducted in a manner which will hamper the exercise of cons ular functions as little as possible. with the exercise of c ons ular functions in the district of that consular post. RS must exercise its jurisdiction over those persons s o as not to interfere unduly with the performanc e of the functions of the mission. 2. RS must. with its property & arc hives. 1 of this Article shall apply. RS s hall also be bound by the obligation laid down in Article 42. RS s hall exercise its jurisdiction over thos e persons in s uch a way as not to hinder unduly the performance of the functi ons of the cons ular post. privileges & immunities may be granted by RS. place at their disposal necessary means of trans port for themselves & their property. 3 of Article 44. a diplomatic agent who is a national of or perma nently resident in R S s hall enjoy only immunity from jurisdiction. 71 1. (c) SS may entrust the protection of its interests & of its nationals to a third State acceptable to RS. together with the property of the consular post & the c ons ular archives. has a nother cons ular post in the territory of that State. In a ddition. to a third Sta te acceptable to RS. the proc eedings s hall. to leave at the earliest possible moment. with the consent of RS. or if a mission is permanently or temporarily recalled: 1. privileges & immunities only in s o far as thes e are granted to them by R S. 2. persons irrespective of their nationality. (a) if SS. H owever. privileges & immunities only in s o far as thes e are granted to them by RS. 1 shall apply. to a third State acceptable to RS. 3. with the property contained therein & the c ons ular archives. with its property & arc hives. & inviolability. & the privilege in par. So far as thes e c ons ular officers are c onc erned. if needed.

Official correspondence means all correspondence relating to the mission [consular post] and its functions. 12). 2. If this request is refused by the authorities of SS. 30): RS shall either facilitate acquisition on its territory by SS of premises necessary for _____ or assist the latter in obtaining some other accommodation. They may not be appointed from among persons having the nationality of RS. consular post (Art. A consular post may be established in the territory of the RS only with that State's consent. the diplomatic [consular] post may send one of its members to take possession of the bag directly & freely from the captain of the ship or of the aircraft. within similar bounds & on a nondiscriminatory basis.͟ Freedom of communication of the͙mission (Art. the diplomatic missions & other consulates [consular posts]. 1[a-d] & 2): ͞1. SS. 34): ͞Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security. RS Ministry for Foreign Affairs. par. He shall enjoy personal inviolability & shall not be liable to any form of arrest or detention. the bag shall be returned to its place of origin. 4 of this Article. except with the consent of that State which may be withdrawn at any time.͟ Assistance/accommodation in getting facilities of the mission (Art. The seat of the consular post. they may request that the bag be opened in their presence by an authorized representative of SS. as to members of consular posts. The prior express consent of the RS shall also be required for the opening of an office forming part of an existing consular post elsewhere than at the seat thereof. the mission [consular post] may employ all appropriate means. RS shall permit & protect freedom of communication on the part of the mission [consular post] for all official purposes. engagement & discharge of persons resident in RS as members ______ or private servants [staff] entitled to privileges & immunities. 2.Art. of the consular post (Art. A diplomatic [consular] bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorized port of entry.͟ ͞Art. 1. The packages constituting the diplomatic [consular] bag shall bear visible external marks of their character & may contain only official correspondence & documents or articles intended exclusively for official use. The establishment of diplomatic relations between States. of consular officers (Art. family member forming part of his household. Consular Staff: DR . arrival & final departure or termination of functions with the mission.͟ . the RS shall ensure freedom of movement & travel in its territory to all members of the ______. where appropriate. RS may reserve the same right WITH REGARD TO nationals of a third State who are not also nationals of SS.͟ Establishment of mission (Art. consular post (Art. private staff (Art. if the competent authorities of RS have serious reason to believe that the bag contains something other than the correspondence. The official correspondence of the mission [consular post] shall be inviolable. He shall be provided with an official document indicating the number of packages constituting the bag. Freedom of movement of members of the mission (Art. 8). wherever they are Full facilities͙of the mission (Art. takes place by mutual consent. CR . having regard to circumstances & conditions in RS & to the needs of the particular mission. Notification as to members of mission. 21). 22): should in principle be of the nationality of SS. appointment of _________. The diplomatic [consular] courier shall be provided with an official document indicating his status & the number of packages constituting the diplomatic [consular] bag. prior notification of arrival & final departure shall also be given. 26). In the performance of his functions he shall be protected by the RS. wherever situated. In communicating with the Government. but he shall not be considered to be a diplomatic [consular] courier. 11. However. 5 of this Article shall also apply except that the immunities mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic [consular] bag in his charge. 3. (a) of this paragraph &. 7. its classification and the consular district shall be established by the SS and shall be subject to the approval of the RS. arrival & final departure of ________ of persons in par. 20: subject to agreement. refuse to accept officials of a particular category. documents or articles referred to in par. 5. its diplomatic missions [its consular posts] may designate diplomatic [consular] couriers ad hoc. the mission [consular post] may install & use a wireless transmitter only with the consent of RS. 27). 4. 2. & of permanent diplomatic missions. nor. 4. The diplomatic [consular] bag shall be neither opened nor detained. including diplomatic [or consular couriers]. 4. In such cases. consular post (Art. The consent of the RS shall also be required if a consulate-general or a consulate desires to open a vice-consulate or a consular agency in a locality other than that in which it is itself established. fact that a person becomes or ceases to be a member of the family of a member of the mission. & RS may equally. arrival & final departure of a person belonging to the __________ &. 35): ͞1. Size of Mission. of the sending State. or other ministry as may be agreed. family of a member of mission. unless he is a SS national. 5. a permanent RS resident. Nationality of members of diplomatic staff of mission (Art.Art. 3. 28): RS shall accord full facilities for the performance of the functions of the _________. diplomatic [or consular bags] and messages in code or cipher. Where possible. or consular post (Art. Except with RS͛ consent he shall be neither a RS national. Inviolability of archives & documents of mission (Art. 2. 2. Nevertheless. Consular Relations Articles 1: Definitions Establishment by mutual consent: ͞Art. its classification or the consular district may be made by the SS only with the consent of the RS. 24. consular post (Art. 25). 3. fact that they are leaving such employ. 4. including those for its members.UP Law B2009 Reviewer (Karichi Edition)   Page 70 of 130 Commonalities ʹ Diplomatic Relations. 6): must be with consent of the RS (which may allow consular officer to exercise functions outside his post). 6. private servants (Art. 24). 33): at any time. RS may require that the size of a mission be kept within limits considered by it to be reasonable & normal. Subsequent changes in the seat of the consular post. 10). shall be notified of: 1. where appropriate. By arrangement with the appropriate local authorities.

1 of this Article shall apply also to members of the private servants [staff] who are in the sole employ of a _________. military contributions & billeting. . 3. be exempt from dues & taxes on the emoluments received due to their employment. 2. & from military obligations such as those connected with requisitioning. 2. RS may require their names to be submitted beforehand. & to official communications & to diplomatic [consular] bags. & to consular bags in transit. from all public service of any kind whatsoever. except that immunity from civil & administrative jurisdiction of the RS in Art. Art 46 SS may with the prior consent of RS. Members of the administrative & technical staff. ________ who employ persons to whom the exemption in par. including messages in code or cipher. members of the consular post (Art. The exemption in par. they may enjoy privileges & immunities only to the extent admitted by the RS. the third State shall accord to him inviolability & all immunities provided for by the other Articles of the present Convention as may be required to ensure his transit or return. 4. with family members forming part of their households." Provisions specific to each: Diplomatic Relations: Art 4 1. 2. 3 of this Article. while proceeding to take up or return to his post or when returning to the SS. entrust a consular post established in a particular State with the exercise of consular functions in another State. Heads of consular posts are appointed by SS & are admitted to the exercise of their functions by RS. The same shall apply in the case of any member of his family [forming part of his household] enjoying such privileges & immunities who are accompanying the _______ or traveling separately to join him or to return to the SS. if they are not nationals of or permanently resident in the RS.] shall be exempt from social security provisions which may be in force in the RS. as to articles imported at the time of first installation. whose presence in the territory of the third State is due to force majeure. Order of presentation of credentials or of a true copy will be determined by date & time of the arrival of the head. Subject to par. Head of the mission takes up his functions in the RS either when he has presented his credentials or when he has notified his arrival & a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the RS. Third States shall accord to official correspondence & to other official communications in transit. through their territories. a consular post of SS may. which has granted him a visa if a visa was necessary. Subject to Arts 5. 5 is not in CR] Exemption from military service of diplomatic agents (Art. naval or air attaches. Consular Relations Art 7 SS may. whatever the form of this authorization. 5. 2. undertake the temporary protection of the interests of the third State & of its nationals. on condition: (a) that they are not nationals of or permanently resident in the RS. 52): RS shall exempt _______ from all personal services. 3. if they are not nationals of the RS. They shall also enjoy the privileges in Art 36. Head of a consular post is admitted to the exercise of his functions by an authorization from RS termed an exequatur. 2 of this Article does not apply shall observe the obligations which the social security provisions of the RS impose upon employers. The exemption in pars. SS may freely appoint the members of the staff of the mission. 13 & 15. 40). Family members of a DA forming part of his household shall. & at the request of a third State not represented in RS. 4. Members of the service staff who are not nationals of or permanently resident in the RS enjoy immunity as to acts performed in the course of their duties. for its approval. Art 12 1. 2. after notifying States concerned. Inviolability in a Third State of a diplomatic agent (Art. unless there is express objection by one of the States concerned. exercise consular functions in RS on behalf of a third State. 54) 1. or such ministry as may be agreed. 4. Private servants of members of the mission shall. 31. [& members of their families forming part of their households.1. provided that such participation is permitted by that State. per the practice in the RS which shall be applied in a uniform manner.1 shall not extend to acts performed outside the course of their duties. 2. Art 37 1. 48): ͞1. enjoy the privileges & immunities in Arts 29 to 35. consular officer (Art. 1 & 2 of this Article shall not preclude voluntary participation in the social security system of the RS. 35). 8. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously & shall not prevent the conclusion of such agreements in the future. 33). head of a consular post shall not enter upon his duties until he has received an exequatur. Art 13 1. Subject to Arts. exemption from dues & taxes on the emoluments received due to their employment & the exemption contained in Article 33. Art 8. A State which refuses to grant an exequatur is not obliged to give to the SS reasons for such refusal. RS must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. In other respects. members of the consular post & members of the families forming part of their households (Art. unless RS objects. if a visa was necessary. Formalities for appointment & admission of the head of a consular post are determined by the laws. _______ WITH REGARD TO services rendered by them for the SS. 2 & 3 shall also apply to the persons mentioned respectively in those paragraphs. If a ______ passes through or is in the territory of a third State. the same freedom and protection as the RS is bound to accord under the present Convention. Art 10 1. Art 7. regulations & usages of SS & of RS respectively. 3. enjoy the privileges & immunities in Arts 29 to 36. 2. third States shall not hinder the transit through their territory of other members of the administrative & technical or service staff of a mission [consular post] or of members of their families [forming part of their households]. SS must ensure that the agrément of RS has been given for the person it proposes to accredit as head of the mission to that State. In the case of military. if not nationals of or permanently resident in RS. the same inviolability & protection as the RS is bound to accord under the present Convention. & (b) that they are covered by the social security provisions which are in force in the SS or a third State. In circumstances similar to those specified in paragraph 1 of this Article. The obligations of third States under pars 1. They shall accord to diplomatic [consular] couriers who have been granted a visa. Upon appropriate notification to RS. 3.͟ [par.UP Law B2009 Reviewer (Karichi Edition)   Page 71 of 130 Social security exemption for a diplomatic agent (Art. RS is not obliged to give reasons to the SS for a refusal of agrément. 9 & 11.

(c) if a vessel. with RS͛ consent. Arts. 1 shall be exercised in conformity with RS laws.UP Law B2009 Reviewer (Karichi Edition)   Page 72 of 130 Art 14 As soon as the head is admitted even provisionally to exercise of his functions. (US v. be exempt from any obligations in regard to work permits imposed by RS laws concerning the employment of foreign labour. competent authorities of RS shall. 4. The authority requiring the evidence of a consular officer shall avoid interference with the performance of functions. If relevant information is available to competent authorities of RS. Herein privileges & immunities shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer. With a view to facilitating the exercise of consular functions relating to SS nationals: (a) consular officers shall be free to communicate with SS nationals & to have access to them. RS shall immediately notify competent authorities of the consular district & ensure that necessary measures are taken to enable the head of a consular post to carry out the duties of his office & to have the benefit of the Convention. inform the consular post of SS if. he shall not be entitled to any greater immunity from jurisdiction than that to which a consular officer is entitled under the Convention. The rights in par. 3. to converse & correspond with him & to arrange for his legal representation. Art 46 1. (b) if he so requests. Facilities. under RS law. 45 & 53 & 55. A consular employee or a member of the service staff shall not. Chapter III . 29. a consular officer may. Art 32 1. 2. 2.1 shall apply to honorary consular officers.3. subject to the proviso that said laws must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. 1 shall not apply to such dues & taxes if. Art 44 1. Tax exemption in par. (c) consular officers shall have the right to visit a SS national who is in prison. WITH REGARD TO services rendered for SS. except in par. 34Ͷ39. (b) not levy national. be exempt from the obligations in par. Consular officers shall refrain from taking action on behalf of a national who is in prison. 54. 3. He shall be entitled to enjoy privileges & immunities accorded to such a representative by customary IL or by int͛l agreements. SS nationals shall have the same freedom WITH REGARD TO communication with & access to consular officers of SS. regional or municipal estate.Regime Relating to Honorary Consular Officers & Consular Posts headed by such Officers Art 58 1. The giving of this information shall be without prejudice to the operation of RS laws concerning such appointments. custody or detention if he expressly opposes such action. except property acquired in RS the export of which was prohibited at the time of his death. take such evidence at his residence or at the consular post or accept a statement from him in writing. Article 36. custody or detention in pursuance of a judgment. 28. Art 37. they are payable by the person who contracted with SS or with the person acting on its behalf. 43. & without affecting his consular status. is wrecked or runs aground in RS territorial sea or internal waters. & are entitled to decline to give evidence as expert witnesses WITH REGARD TO SS law. no coercive measure or penalty may be applied to him. 42. Art 17 1. 44. act as representative of SS to any inter-governmental organization. Any communication addressed to the consular post by such person shall also be forwarded by said authorities without delay. privileges & immunities of such consular posts shall be governed by Arts. 30. if they do not carry on any other gainful occupation in the RS. 1 shall not apply to any consular employee who is not a permanent employee of SS or who carries on any private gainful occupation in RS or to any member of the family of any such employee. Par. 2. a SS national is arrested or committed to prison or to custody pending trial or is detained.3 & 55. RS: (a) permit export of the movable property of the deceased. without Iranian authorities attempting to prevent such but with later statements of support by the Ayatollah. regional or municipal dues & taxes. on movable property the presence of which in the RS was due solely to the presence in that State of the deceased as a member of the consular post or as a member of the family of a member of the consular post. 2. having the nationality of SS. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. Members of the consular post shall. Exchange of consular bags between 2 consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the 2 RSs concerned. (b) inform competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a SS national. Consular officers & consular employees & family members forming part of their households shall be exempt from all obligations under RS laws in regard to the registration of aliens & residence permits. such authorities shall have the duty: (a) death of a SS national: inform without delay the consular post in whose district the death occurred. They shall also have the right to visit any SS national who is in prison. in respect of the performance by him of any consular function. Arts. If a consular officer should decline to do so. 63Ͷ67. custody or detention. privileges & immunities of such consular officers shall be governed by Arts. be authorized to perform diplomatic acts. When possible. The facilities. Art 47 1. Such performance by a consular officer shall not confer any right to claim diplomatic privileges & immunities. Said authorities shall inform the person concerned without delay of his rights under this sub-paragraph. 59Ͷ62. or if an aircraft registered in SS suffers an accident on RS territory: inform without delay the consular post nearest to the scene of the occurrence. succession or inheritance duties. US Diplomatic Staff and Consular Staff (US v Iran) US Embassy and staff in Iran were seized by protestors. Consular officer may. without delay. 2. Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence & documents.2 & 3 shall apply to consular posts headed by an honorary consular officer. . Art 51 Death of a member of the consular post or of family member forming part of his household. & duties on transfers. Members of the private staff of consular officers & of consular employees shall. In a State where SS has no diplomatic mission & is not represented by a diplomatic mission of a third State. within its consular district. 2. Consular premises & residence of the career head of which SS or any person acting on its behalf is the owner or lessee shall be exempt from all national. 3. 2. decline to give evidence. 1. other than such as represent payment for specific services rendered. after notification addressed to RS. Avena) 1.

in carrying on its duties under this responsibility the Security Council acts on their behalf. On notice. the contra force. or once there are grounds to think that the person is probably a foreign national. If a State breaches its obligation under Art. 36 (1b). UN Charter In order to ensure prompt and effective action by the United Nations. . necessity. The Republic of China. provided that. apply IHL. 36 (1a) because it precluded the consular officers of the other State to communicate with and have access to their nationals. it should take account of the violation of the rights set forth in the Vienna Convention and guarantee that the violation and the possible prejudice caused by the violation will be fully examined and taken into account in the review and reconsideration process.UP Law B2009 Reviewer (Karichi Edition)   Page 73 of 130 Failure to Protect Embassy and Staff. nor can it be interpreted to signify that the provision of the notice must necessarily precede any interrogation. irregulars or mercenaries. but also the sending by or on behalf of a state of armed banks. US was in breach of its obligations to 51 individuals. UN Charter) (b) when allowed by the Security Council (Art. and proportionality requirements. the inherent right which any state possesses in the event of an armed 14 Thanks to Tif and Eps for this part. B. But the Court observes that there is still a duty upon the arresting authorities to give the information to an arrested person as soon as it is realized that the person is a foreign national. UN Charter Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members. The failure of the Iranian security forces to protect the Embassy or take any step to liberate the staff members amounted to a violation of Iran͛s duties under the Vienna Convention on Diplomatic Relations to take all appropriate steps to protect the embassy premises and staff. UN Charter) y If there͛s already armed conflict. 36. so that the commencement of interrogation before the notification would be a breach of Art. The US claimed collective self defense in behalf of El Salvador as justification for its actions. The general rule prohibiting force allows for certain exceptions. There are three elements in Art. Thus. and the United States of America shall be permanent members of the Security Council. Article 25. in decisions under Chapter VI. UN Charter) Exception: (a) inherent right to individual or collective self-defense (Art. Nicaragua vs. a party to a dispute shall refrain from voting. US (1986) The US allegedly planned and undertook activities directed against the new government of Nicaragua. ͞without delay͟ is not necessarily to be interpreted as ͞immediately͟ upon arrest. in the first instance of the [1] contribution of Members of the United Nations to the [a] maintenance of international peace and security and to the [b] other purposes of the Organization. Lastly. through the use of one͛s own forces OR indirectly through armed bands or irregulars. operations against oil installations and naval base. its Members [1] confer on the Security Council primary responsibility for the maintenance of international peace and security. specifically the mining of ports and waters. with a view to ascertaining whether in each case the violation of Art. and under paragraph 3 of Article 52. France. UN Charter The Security Council shall consist of fifteen members of the United Nations. Article 24(1). it also breaches Art. First. 36 committed by the competent authorities caused actual prejudice to the defendant in the process of administration of criminal justice. infringement of air space. UN Charter The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. The armed attack. the Union of Soviet Socialist Republics. in general use. 36 (1c) because it precluded the consular officers of the other State from visiting their detained nationals and from arranging for legal representation of their nationals. and [2] agree that. Failure to Notify of Rights. US) Mexico claims breaches of the Vienna Convention on Consular Relations (with regard to communication) in the treatment of 52 Mexicans convicted and sentenced to death in the US. 42.͟ Case Concerning Avena & Other Mexican Nationals (Mexico v. US ʹ ͞It could include not merely action by the regular armed forces across and international border. 36 (1b) in not notifying the Consular Post of the other state of the detention of the latter͛s nationals. THE UN CHARTER AND THE USE OF FORCE Article 2(3). which carry out acts of armed force against another state͙ It could take place directly. and justice. UN Charter All members shall settle their international disputes by peaceful means in such a manner that international peace and security. Article 27(3). as well as Art. UN Charter y Until when can you allege self-defense ʹ until the SC has taken cognizance of the matter (thus. 51. Article 23(1). due regard being specially paid. are not endangered. INTERNATIONAL ORGANIZATIONS14 1. The REMEDY to make good these violations of its obligations should consist in requiring the US to permit effective review and reconsideration of these nationals͛ cases by the US courts. self defense cannot be forever) y ͞Armed attack͟ is determined in Nicaragua vs. Sir Roque says: y General Rule: The UN Charter prohibits the THREAT OR USE OF FORCE between members against their territorial integrity or political independence (Art. review and reconsideration should be both of the sentence and of the conviction. UN Charter All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. groups. or in any other manner inconsistent with the Purposes of the United Nations. 2[4]. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council. Article 2(4). and also to [2] equitable geographical distribution. The key is SCALE OF ACTIVITY. and support for the mercenary army. the United Kingdom of Great Britain and Northern Ireland.

US (1999) Yugoslavia applied for provisional measures to stop the US from using force against it. on the inherent right of individual or collective self defense if an armed attack occurs. the exercise of this right is subject to the state concerned having been a victim of an armed attack. Whether a signaled intention to use force if certain events occur is or is not a ͞threat͟ within Art. Costa Rica). Honduras. did nothing unreasonable or excessive. It cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein. even supposing the necessity of the moment authorized them to enter the territories of the United States at all. that the local authorities of Canada. Anticipatory self defense. If it is to be lawful. and no moment for deliberation. and what rules of national law. the declared readiness to use force must be a use of force that is in conformity with the Charter. which defines. is particularly obvious in the case of an intervention which uses force. Said reservation had the effect of excluding that Article from the provisions of the Convention in force between the parties. instant. the stated readiness to use it would be a threat prohibited under Art. Caroline Case (1842) SS Caroline was set on fire by British assailing forces while moored in New York. along with other NATO-member countries bombed various targets in Yugoslavia. by the principle of State sovereignty. Principle of Non-intervention.͟ Legality of the Use by a State of Nuclear Weapons (1996) The UN General Assembly requested the ICJ͛s Advisory Opinion on the question: ͞Is the threat or use of nuclear weapons in any circumstance permitted under international law?͟ Prohibition is subject to exceptions. Whether this is a ͞threat͟ depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State. The requirement of a request is additional to the requirement that such a State should have declared itself to have been attacked. US Secretary of State Daniel Webster wrote to Lord Ashburton: ͞[I]t will be for Her Majesty͛s Government to show. since the act justified by the necessity of self defense. This prohibition of the use of force (Art. These provisions do not refer to specific weapons. 4 of the Charter depends upon various factors. They could not justify counter-measures taken by a third State (the US) and particularly could not justify intervention involving the use of force. US forces retaliated by burning a British steamer while in US waters. Genocide Convention does not prohibit reservations. overwhelming. These are therefore wrongful in the light of both the principle of non-use of force. regardless of the weapons employed. Art IX cannot found the jurisdiction of the Court to entertain a dispute between Yugoslavia and the US alleged to fall within its provisions. If the envisaged use of force is in itself unlawful. A prohibited interference must accordingly be one bearing on matters in which each State is permitted. which the US ratified but made a reservation. the destruction of the ͞Caroline͟ is to be defended. par 4. to decide freely. and indeed forms the very essence of prohibited intervention. There is NO rule in customary international law permitting another state to exercise the right of collective self defense on the basis of its OWN ASSESSMENT of the situation. could only have justified proportionate counter-measures on the part of the victim States (El Salvador. submission to which is a rule in customary international law). whereby the Security Council may take military enforcement measures in conformity with Chapter VII). IX. Collective counter-measure in response to conduct not amounting to an armed attack. 2. must be limited by that necessity. para 4. par. covers both collective and individual self defense.UP Law B2009 Reviewer (Karichi Edition)   Page 74 of 130 attack. 2. nor permits. a use of force of a lesser degree of gravity cannot produce any entitlement to take collective counter-measures involving the use of force. or in the indirect form of support to subversive or terrorist armed activities within another State. IX of the Genocide Convention. 51. 2. The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference. Request for exercise of collective self defense also needed. Art. either in the direct from of military action. the use of any specific weapon. Yugoslavia did not object to the US reservations to Art. leaving no choice of means. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. The US. including nuclear weapons. Thus. Legality of the Use of Force ʹ Yugoslavia vs. The element of coercion. ͞Signaled͟ intention to use force. It will be for it to show. in self defense. in customary international law. The acts of which Nicaragua is accused. Sir Roque says : ICJ rejected the US͛s self defense argument and held that the US infringed the prohibition on the use of force due to some of its activities. It will be for that Government to show a necessity of self defense. 42. While an armed attack would give rise to an entitlement to collective self defense. UN Charter does not refer to a specific weapon. or against the Purposes of the UN or whether it would necessarily violate the principles of necessity and proportionality. They apply to any use of force. ICJ has no jurisdiction because US did not consent to the submission of the dispute. Reliance on collective self defense of course does not remove the need for this. also. even assuming them to have been established and imputable to that State. there is no rule permitting the exercise of collective self defense in the absence of a request by the State which regards itself as the victim of an armed attack. upon what state of facts. and kept clearly within it. . The parties agree that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self defense. It suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self defense in accordance with the requirements of proportionality. claiming that the destruction was a public act of force. UN Charter) is to be considered in the light of other relevant provisions of the Charter (Art. Yugoslavia based the ICJ͛s jurisdiction On Art. Resort to self defense under Art. The Charter neither expressly prohibits. and that of intervention. The Caroline was used by American sympathizers of Canadian rebels against the British to provide arms and ammunitions. 51 is subject to certain restraints (the conditions of necessity and proportionality. In consequence. Additional considerations. The proportionality principle may thus not in itself exclude the use of nuclear weapons in self defense in all circumstances. In the case of individual self defense.

Article 1. Article 96. but in no case shall such conditions place the parties in a position of inequality before the Court. ICJ Statute The decision of the Court has no binding force EXCEPT between the parties and in respect of that particular case. However. UN Charter The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. XX. UN Charter Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. A. A State which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. Sir Roque says: The Court had not decided on whether unilateral use of force is valid in this instance. the United States has to show that attacks had been made upon it for which Iran was responsible. upon recommendation of the Security Council y States not Parties to the ICJ Statute (Art. to protect US interests as the reason for the attacks. d. note that the Court held that US actions cannot be justified as measures necessary to protect the essential security interests of the US under the Treaty. ICJ Statute 1. Article 93. which may at any time be so authorized by the General Assembly. b. Serving as backdrop for these attacks is the conflict between Iran and Iraq in the 1980s. c. ICJ Statute): Court shall be open to such States under conditions laid down by the Security Council. which may make recommendations or decide upon measures to be taken to give effect to the judgment States not UN Members may become a party on conditions determined in each case by the GA. Only States may be parties in cases before the Court. if it deems necessary. whose function is to decide in accordance with international law such disputes as are submitted to it. Article 59. the general principles of law recognized by civilized nations. and that the platforms were a legitimate military target open to attack in the exercise of self-defense. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono.UP Law B2009 Reviewer (Karichi Edition)   Page 75 of 130 Oil Platforms Case (Iran v. establishing rules expressly recognized by the contesting States. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court. par 1(d) of the Treaty. It shall function in accordance with the annexed Statute. Other organs of the United Nations and specialized agencies. make recommendations or decide upon measures to be taken to give effect to the judgment. 35. judicial decisions and the teachings of the most highly qualified publicists of the various nations. laid down by the Security Council. subject to the provisions of Article 59. if there is failure to comply. international custom. may also request advisory opinions of the Court on legal questions arising within the scope of their activities. the other party may have recourse to the Security Council. as evidence of a general practice accepted as law. Notes: y The ICJ was established by the UN Charter y The ICJ is the principal judicial organ of the UN y The ICJ Statute forms an integral part of the UN Charter y States Parties to the ICJ Statute: o UN members are ipso facto parties each UN member undertakes to comply with the decision of the ICJ in any case to which it is a party. The conditions under which the Court shall be open to other States shall. as well as of international law. if the parties agree thereto. Article 94. contemplated under Art. The United States must also show that its actions were necessary and proportional to the armed attack made on it. Evidence failed to support the contentions of the US. shall apply: a. the other party may have recourse to the Security Council. Applicable Law Article 38. subject to special provisions contained in treaties in force y International Organizations may initiate a proceeding as long as States are still the parties. which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. ICJ Statute The Court shall be open to the States Parties to the present Statute. as interpreted in the light of international law on the use of force. Economic Relations and Consular Rights between the US and Iran. INTERNATIONAL COURT OF JUSTICE Article 92. UN Charter The International Court of Justice shall be the principal judicial organ of the United Nations. The US claimed that the acts are self defense measures. whether general or particular. Article 35 (1). and that those attacks were of such a nature as to be qualified as ͞armed attacks͟ within the meaning of that expression in Article 51 of the UN Charter. in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defense. as subsidiary means for the determination of rules of law. The Court points out that the US has not claimed to have been exercising collective self-defense on behalf of the neutral States engaged in shipping in the Persian Gulf. and as understood in customary law on the use of force. US) Iran instituted proceedings against the US. which may. claiming that attacks on Iranian offshore oil production complexes by the US Navy constituted a ͞fundamental breach͟ of various provisions of the Treaty of Amity. international conventions. ICJ Statute The Court. ICJ Statute The International Court of Justice established by the Charter of the United Nations as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the provisions of the present Statute. . UN Charter All members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. subject to special provisions contained in treaties in force. Therefore. Article 34 (1).

Moreover. would constitute a breach of an international obligation. Scotland. said notification to take effect immediately. treaties or conventions (c) legal disputes concerning: . the UN Security Council Resolutions which required Libya to surrender the two accused prevailed over the provisions of the Montreal Convention. provided notice is given to the other party within a reasonable time (Nicaragua vs. ICJ Statute) (or parties recognize the jurisdiction as compulsory in a separate declaration) y Jurisdiction over a State is compulsory ipso facto and without special agreement. if established. b. a conflict of legal views of interests between two persons. no actual breach or harm is necessary. The US contended that the Court lacked jurisdiction on the following grounds: (1) that Nicaragua͛s acceptance of the compulsory jurisdiction of the PCIJ was not in force in 1945. any question of international law. a conflict of legal views or of interest between two persons. the reservation of the US prevented the Court from entertaining the claims based on violations of multilateral treaties such as the UN Charter and the OAS Charter. were excluded from the jurisdiction of the Court. Finally. Notes: rd y 3 party intervening need not be an indispensable party y Requisite: a legal interest in the subject matter of the case which may be affected by the decision.Nicaragua v. y Can you withdraw unilaterally from such declaration? Yes. for failure to ratify the Statute of the PCIJ.the interpretation of a treaty. and that (3) US had made a reservation in its Optional Clause whereby rd disputes arising under a multilateral treaty. A declaration under the Optional Clause was a unilateral and voluntary act. which could affect 3 states which are parties to the treaty but are not participating in the proceedings before the Court. Therefore. under which Libya had the right to investigate the alleged offense and exercise domestic jurisdiction. where parties refer the dispute to the Court) (b) parties recognize the jurisdiction as compulsory in a treaty (c) Optional Clause (Art. however. the interpretation of a treaty. It HOWEVER found that the effect of the reservation did NOT exclude the application of principles of international customary law. Advisory Opinions B. A ͞dispute͟ is defined as a disagreement on a point of law or fact. the US had filed a notification stating that the compulsory jurisdiction shall not apply to disputes with any Central American State. the nature or extent of the reparation to be made for the breach of an international obligation.any question of international law. such that Art. US) y What is the ͞subject matter jurisdiction͟ of the ICJ? (Art. the UN SC . in relation to any other State accepting the same obligation y Period of effectivity may be either: (a) indefinite (b) for a fixed period of years (c) upon notification of termination (see Nicaragua vs. . In its application. The UK maintained that the Court lacked jurisdiction because there was no dispute concerning the interpretation or application of the Convention. the jurisdiction of the Court in all legal disputes concerning: a. US) y Reservations may be made: (a) ratione personae ʹ reservations relating to other parties (b) ratione temporis ʹ reservations relating to time (c) ratione materiae ʹ reservations as to subject matter y Such reservations do not limit the discretion of the Court to determine its own competence since ultimately the ICJ can decide to take cognizance of the dispute. . ICJ held that it had jurisdiction. .the nature or extent of the reparation to be made for the breach of an international obligation y ͞Dispute͟ means disagreement on a point of law or fact. US (1986) In this case. Nicaragua asserted that the Court had jurisdiction over its application because both Nicaragua and the US had accepted the compulsory jurisdiction of the Court under the Optional Clause. Once made. the US declaration could only be terminated on REASONABLE NOTICE. 36 (2). and even if such dispute existed. or for a certain time. In this case. the existence of any fact which. Notes: How does Court acquire jurisdiction? By consent of the parties y y How does a State manifest its consent? (a) ad hoc basis (or voluntary appearance. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain States.the existence of any fact which. ICJ Statute The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations OR in treaties or conventions in force. UK .UP Law B2009 Reviewer (Karichi Edition)   Page 76 of 130 C. the parties differed on the question of whether the destruction of the aircraft was governed by the Montreal Convention.1988) A bomb exploded on board a Pan Am plane over Lockerbie. The States Parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement. (2) three days before the application had been filed. (much lower threshold than the requirement in ordinary civil cases) CASES ON JURISDICTION Military and Paramilitary Activities In and Against Nicaragua . to constitute a dispute. Lockerbie Case (Libya v. Libya seeks to enforce the obligations of the States under the Montreal Convention. UK and US accused two Libyan nationals of placing the bomb aboard the plane and issued a declaration enjoining Libya to surrender the two men. The ratification of the ICJ Statute by Nicaragua gave its previous declaration under the PCIJ Statute the binding force which it previously lacked. d. the ICJ concluded that it would be impossible for a ruling not to affect third parties such as El Salvador. 36 (5) of the ICJ Statute did not apply to it. which were enshrined in treaty law provisions. Jurisdiction Article 36. c. The Court held that it had jurisdiction. in relation to any other State accepting the same obligation. if established. Moreover. it created a legal obligation binding upon the State which made it. 36) (a) any matter which the parties may refer to it (b) matters provided by the UN Charter. would constitute a breach of an international obligation.

Sir Roque says: y The doctrine of exhaustion of local remedies is available when a state brings a case in the exercise of its diplomatic protection of its nationals/ espouses a claim of its national. st ELSI Case (US v. since Italy failed to establish that a remedy existed under municipal law which was available to the US corporations. in which it maintained that by concluding an agreement and continuing negotiations with Indonesia over the delimitation of the continental shelf between Australia and East Timor. which determination could not be made without the consent of Indonesia. South-West Africa Cases (Ethiopia and Liberia vs. Australia claimed that the termination of the trusteeship should be considered as ͞recourse to some other method of peaceful settlement. Court held that the individual member States of the League of Nations had no right of direct intervention relative to the mandatories since this was the prerogative of the League organs. the interests of New Zealand and the UK are protected by Article 59 of the ICJ Statute (decision only binds the parties). Australia claimed lack of jurisdiction on two grounds: 1) since the case involved the responsibility of third States which had not consented to the Court͛s jurisdiction. It also submitted that the doctrine of exhaustion of local remedies was not applicable to an action brought under the said treaty due to lack of reference to such doctrine. Sir Roque says: Doctrine applies both to advisory opinion and contentious cases.1995) Portugal commenced proceedings against Australia. because the obligation of South Africa to submit to compulsory jurisdiction had effectively transferred to the ICJ.1989) The application made by the US concerned the allegedly illegal requisition by Italy of two US corporations. The Court stated the doctrine of exhaustion of local remedies was a fundamental rule of customary international law and was not rendered inapplicable simply because of the absence of words making it specifically applicable to a certain type of action. As to the 2nd ground. South Africa had bound itself to accept the compulsory jurisdiction of the ICJ in lieu of the PCIJ. . with Australia. and 2) it made a reservation in its declaration that jurisdiction does not apply to any dispute where the parties have agreed or shall agree to have ͞recourse to some other method of peaceful settlement. The Court held that it had jurisdiction. Since admissibility had to be determined as at the date on which the application was filed. However. Australia infringed the rights of the people of East Timor to selfdetermination and permanent sovereignty over their natural resources and the rights of Portugal as administering power. The Court refrained from exercising jurisdiction.͟ ICJ held that Australia͛s declaration expressly provided that this limitation on jurisdiction applies to disputes between States.UP Law B2009 Reviewer (Karichi Edition)   Page 77 of 130 Resolutions were adopted after Libya filed its application. which Nauru was not prior to its independence. South Africa however challenged the jurisdiction of the Court by contending that since the League of Nations and PCIJ were dissolved then the rights and obligations under the Mandate relating to the administrative supervision by the League and submission to the PCIJ had become extinct.1966) Ethiopia and Liberia instituted applications alleging contravention of duties by South Africa as mandatory under the League of Nations Mandate for South West Africa. Although the League ceased to exist in April 1946. maintains that the claims should have been brought before Italian municipal courts. The very subject matter of the decision would necessarily be a determination of whether Indonesia acquired power to conclude treaties on behalf of East Timor. y It is not required when the state brings a case as the injured party (i. Australia . 92 and 93 of the UN Charter and Art. Court held that the fact that New Zealand and the UK were not parties to the proceedings did not render the application inadmissible. South Africa . the UN Charter had entered into force in November 1945. the Court rejected the claims of Ethiopia and Liberia. the claim is admissible. Nauru instituted proceedings against Australia.͟ ICJ held that it had jurisdiction. administration and jurisdiction over Nauru on behalf of the Administering Authority. Australia was to exercise full powers of legislation. Italy . Case Concerning East Timor (Portugal v.e. The present case differed from the Monetary Gold case since the interests of New Zealand and the UK did not constitute the very subject matter of the decision which the Court would give. on the other hand. which had not consented to the jurisdiction of the Court. And though States retained the rights which they possessed as members of the League of Nations despite the dissolution of the organization. ICJ had no jurisdiction. and the three parties had ratified such Charter and become UN members. its jurisdiction being based upon the Statute of the Court and the FCN Treaty. New Zealand and the UK as joint Administering Authority. Phosphates Case (Nauru v. the injury is caused to the state itself such as in the US Diplomatic and Consular Staff case). notwithstanding the dissolution. 37 of the ICJ Statute. Australia contended that the Court could not rule upon the application without ruling on the rights and obligations of Indonesia. maintaining that it had breached its trusteeship obligations by failing to rehabilitate parts of Nauru from which phosphates had been extracted. Italy. subsequent cognizance of the SC and the issuance of said resolutions could not remove any jurisdiction which the Court possessed at the date of filing of the application. Australia . Case is authority for the definition of erga omnes obligation of states to respect the right to self-determination. A finding by the Court regarding the responsibility attributed to Australia by Nauru might have implications for the legal situation of the two other States concerned but no finding in respect of that legal situation would be needed as a basis for the Court͛s decision in this case. Deciding on the merits. Commerce and Navigation (FCN) Treaty between the two. Every mandate contained a jurisdictional clause providing for a reference of disputes to the PCIJ. Moreover. as it could not rule upon the dispute between Australia and Portugal without having to rule upon whether Indonesia͛s entry into East Timor was lawful. US claimed that Italy violated the provisions of the Friendship.1992) Nauru was placed under UN Trusteeship. it did not mean that by and upon such dissolution they acquired rights which they never did individually possess. The Court held that it had jurisdiction. By the effect of Art. As to the 1 ground. now the ICJ by virtue of Article 37 of the ICJ Statute.

Bosnia v. loving. the Court is not concerned with the political motives. the UN SecGen said that a dispute existed between the US and UN and invoked the dispute settlement procedure in Sec. it is the function of the Court to determine if there is a dispute based on the facts of the case and not on the assertions of the parties. The Court defined a ͞dispute͟ as a disagreement on a point of law or fact. France claims that by virtue of the Peace Treaty of Versailles. Years later. a Greek national. the court said that there was no abrogation because the text itself of the Special Arbitration Agreement states that the countries are to settle between themselves the status of the free zones because of an inconsistency. 2) peace- . Application of the Convention on Prevention and Punishment of Genocide . the US Government passed a law making unlawful the establishment or maintenance within the US of a PLO office. the State is the sole claimant. Questions were raised as to: a) whether there was a dispute between the Mandatory and another member of the League of Nations. the Court could only indicate provisional measures to be taken by the parties but not rd by 3 States who would not be bound by the eventual judgment. 21 of the Headquarters Agreement.1998) Libya requested the Court for provisional measures to enjoin the US from the use of any force against Libya. Previous to this. Interpretation of a treaty provision is an essentially judicial task. 4 of UN Charter set sufficient conditions for UN membership. When assurance was not given by the US. the Court ruled that the question was a purely legal one. Also. The Court denied the request for provisional measures. Dealing with the question. The Court took cognizance of the case despite the fact the matters addressed to it were of great economic importance. UK (1924) Greece brought suit against Britain in its capacity as Mandatory of Palestine to determine the validity of certain concessions for public works in the Jordan Valley granted by the Ottoman authorities to Mavrommatis. the Security Council adopted Resolution 748 determining the failure of Libya to surrender the two accused as a threat to international peace and security. as the matters arose in the context of legal questions to be answered. Deciding on the merits. in the eyes of the latter. It reasoned that since Libya and the US are UN members. These are not merely the necessary but also the sufficient conditions for membership. to afford a basis on which the jurisdiction of the Court might be established. It said that the conditions stated in Art. before an international tribunal. US . US countered that there was no dispute. they are obliged to accept and carry out the decisions of the Security Council. 4) must be able to carry out these obligations. Free Zones Case ʹ France vs. Dealing with the preliminary objection.UP Law B2009 Reviewer (Karichi Edition)   Page 78 of 130 CASES ON PROVISIONAL MEASURES Bosnia Case (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) This case has been decided again in 2007. It stated that it should not indicate such measures unless the provisions invoked by the applicant or found in the ICJ Statute appeared. Once a State has taken up a case on behalf of one of its subject. It was contended by some States that the Court should not give its opinion for the reason that the subject matter of the request was political. PCIJ defined a dispute as a ͞disagreement on a point of law or fact. Such obligation prevails over the duty of the parties under the Montreal Convention. Dispute defined. in accordance with the Headquarters Agreement. The object of the power to indicate provisional measures of protection was to ensure that irreparable prejudice should not be caused to rights which might subsequently be adjudged to belong to one of the parties. An indication of the measures requested by Libya would be likely to impair the rights. Art. namely: a candidate must be 1) a state. the regime of free zones had been abrogated. Subsequently. since only States or members of the League of Nations may appear before it and b) whether there was a dispute even if one of the parties denies the existence of the dispute. that Yugoslavia cease all acts of genocide and cease providing support for any group engaging in military or paramilitary activities against Bosnia. the dispute was between a private person and a State. Lockerbie Case (Libya v. At first. The legal dispute here is essentially France͛s right to withdraw unilaterally from a treaty. which may have inspired the request at hand. a conflict of legal views or of interest between 2 persons. Yugoslavia (1993) Bosnia and Herzegovina instituted proceedings against Yugoslavia accusing it of responsibility for the commission of genocide in Bosnia. Moreover. prima facie. Switzerland (1932) A series of treaties between France and Switzerland established customs-free zones. 3) must accept the obligations of the charter. the Court answered in the negative. 4 are EXHAUSTIVE. An inconsistency does not automatically operate to involve the abolition of the free zones. 5) must be willing to do so. The Court granted the request for provisional measures. It also requested that the Court indicate that Bosnia had the right to seek and receive assistance in defending itself. which appear prima facie to be enjoyed by the United States by virtue of the Security Council Resolution. however. Whether there exists an international dispute is a matter for objective determination. Greece took up the case. UN Headquarters Advisory Opinion (1988) PLO established an observer mission in New York upon invitation by the UN. Given its legal nature. as provisional measures. At the time it filed its application. Bosnia asked the Court to grant. The UN Sec-Gen pointed out that the US is under obligation to permit PLO personnel to enter and remain in the US to carry out their official UN functions. CASES ON DISPUTE Admissions Case (1948) The General Assembly requested the Court to give an advisory opinion on whether a UN member may make its consent to admission of other States dependent on conditions not expressly provided by Article 4 of the UN Charter. which it is entitled to protect under international law. Mavrommatis Case ʹ Greece vs. Opposing attitudes of the parties clearly establish the existence of a dispute. a conflict of legal views or of interests between two persons.

it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions. In exercising this discretion. The Court cannot decide such a dispute (WON Albania committed a wrong against Italy and must compensate) without the consent of Albania. both of them consider Art. Whatever those effects might be. once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and. Albania. being a Court of Justice. In any event. In short. The Court has further said that only ͞compelling reasons͟ should lead it to refuse to give an advisory opinion. signed at Dorpat. 31 of the Convention as applicable in interpreting the Anglo-German Treaty inasmuch as Art. par 1 is permissive and. depart from the essential rules guiding their activity as a Court. under it. constitute engagements of an international character which place Russia under an obligation to Finland as to the carrying out of the provisions contained therein?͟ Russia and Finland are in dispute regarding the Declaration. The request was made through a Special Agreement between the 2 states to submit the dispute to the ICJ. an opinion given by the Court will furnish the GA with elements of a legal character relevant to the future treatment of the decolonization of Western Sahara. not for the Court͛s competence. Certain Expenses in the UN (1962) The expenses involved are those relating to UN operations in Congo and the Middle East in pursuance of Security Council and General Assembly Resolutions. The function of the Court is to give an opinion based on law. 65. The UN GA requested an advisory opinion on whether these are expenses of the Organization with the meaning of Art 17. Botswana v. Eastern Carelia Case (1923) The Council of the League of Nations requested the PCIJ to give an advisory opinion upon this question: ͞Do Arts. The Court. in the circumstances of a given case. the Court can give an advisory opinion only on a legal question. 31 reflect customary international law. but to the legality of the use of such weapons in view of their health and environmental effects. It has been argued that the question put to the Court is intertwined with political questions. however. Art. ͞What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?͟ The ICJ finds no compelling reason to deny the request. In general. the consent of an interested State continues to be relevant. like the PCIJ. to what extent or degree its opinion will have an impact on the action of the GA is not for the Court to decide. But even if the question is a legal one. cannot attribute a political character to a request which invites it to undertake an essential judicial task. Neither Botswana nor Namibia is a party to the Vienna Convention on the Law of Treaties. as a judicial body. Albania͛s legal interest would not only be affected by a decision. UK was claiming the gold in satisfaction of the Corfu Channel decision. considerations of judicial propriety should oblige the Court to refuse an opinion. Sir Roque says: The ICJ acquired jurisdiction because the parties consented to the ICJ͛s jurisdiction and acknowledged that the Anglo-German Treaty is binding on them. the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the island. To ascribe to the WHO the competence to address the legality of the use of nuclear weapons ʹ even in view of their health and environment effects ʹ would be tantamount to disregarding the principle of speciality. The Court finds no ͞compelling reason͟ why it should not give the advisory opinion requested. par 2 of the UN Charter. refrained from making any application to the dispute. The ICJ agreed to give an advisory opinion. the interpretation of a treaty provision.UP Law B2009 Reviewer (Karichi Edition)   Page 79 of 130 CASES ON ADVISORY OPINION Western Sahara Case (1975) The UN GA requested an advisory opinion on the following questions: ͞Was Western Sahara at the time of colonization by Spain a territory belonging to no one (terra nullius)?͟ and. Legality of the Use by a State of Nuclear Weapons WHO Request (1996) The WHO Dir-Gen submitted the following question to the ICJ for an advisory opinion: ͞In view of the health and environmental effects. 65 of the Statute. with Finland saying that it forms part of the contract and that the Treaty was signed on the terms that the Declaration was as binding as the . The Court. UK and USA . It has been said in previous opinions that the reply of the Court represents its participation in the activities of the UN and. Namibia (1999) The ICJ was requested to determine. cannot. saying that the power of the Court to give advisory opinion is derived from Art. 10 and 11 of the Treaty of Peace between Finland and Russia. The power granted is of a discretionary character. on the basis of the AngloGerman Treaty of 1890 and the rules and principles of international law. the limits of which are a function of the common interests whose promotion those States entrust to them. Here. namely. None of the WHO͛s functions has a sufficient connection with the question before it for that question to be capable of being considered as arising ͞within the scope of [the] activities͟ of the WHO. who had not accepted the Courts͛ jurisdiction. International organizations are governed by the ͞principle of speciality͟ ʹ they are invested by the States which create them with powers. the WHO͛s competence to deal with them is not dependent on the legality of the acts that caused them. if yes. and that for this reason the Court should refuse to give an opinion. the Court said that it recognized that lack of consent might constitute a ground for declining to give the opinion requested if. consequently are not devoid of object or purpose. it may nonetheless decline to do so. in principle. and the annexed Declaration of the Russian Delegation regarding the autonomy of Eastern Carelia. but for the appreciation of the propriety of giving an opinion. Therefore. the ICJ. should not be refused. As to lack of consent. even by giving advisory opinions. The question in this case relates not to the effects of the use of nuclear weapons on health. France. has always been guided by the principle that. that power is of a discretionary character. Monetary Gold Case (Italy v. would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?͟ The ICJ refused to give an advisory opinion.1954) UK and Italy lay claim to gold taken by Germans from Rome. Italy claims the gold under the allegation that Albania has committed an international wrong against Italy and must thus pay compensation. but would form the very subject-matter of the decision.

breach of the peace. the Court observes that this question is directed to the legal consequences arising from a given factual situation considering the rules and principles of international law. 65. Answering the question would be substantially equivalent to deciding the dispute between the parties. the latter shall be invited to accept the obligations of membership for the purpose of such dispute. . in seeking an advisory opinion from the Court. whether a Member of the United Nations or not. can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court refused to give an advisory opinion. Rather. the Court would emphasize that Article 24 refers to a primary. competence. it has on several occasions clearly declared that it accepts no intervention by the League of Nations. Lack of clarity in drafting does not deprive the Court of Jurisdiction. abstract or otherwise" That a party to the contentious dispute did not give its consent does not divest the Court of jurisdiction to give an advisory opinion. The Court is accordingly of the view that the General Assembly. It appears to the Court that that there are other cogent reasons which render it very inexpedient that the Court should attempt to deal with the present question. Resolution 377 A (V) States that: "if the Security Council. is consistent with Article 12. 17 of the Covenant (in the event of dispute between a member and a nonmember. fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace. had never been given by Russia. and such necessary clarifications of interpretation have frequently been given by the Court. under Chapter VII" and can. as it has evolved. The Court concludes that it has jurisdiction.". Even when the matter was raised as an issue of propriety rather than one of jurisdiction. but was merely declaratory of an existing situation. paragraph 1. to use the Court's phrase in Western Sahara. "[The only limitation which Article 14 imposes on the General Assembly is the restriction found in Article 12. the case is one under Art. In the view of the Court. represents its participation in the activities of the Organization. 12 to 16 shall be applied with modifications). SC failed to act on the matter. to "recommend measures for the peaceful adjustment" of various situations. Art. it is indeed a question of a legal character͟. such uncertainty will require clarification in interpretation. in principle. "The consent of States. it is by its very nature susceptible of a reply based on law. Under Article 24 the Security Council has "primary responsibility for the maintenance of international peace and security". The question submitted by the GA has thus. but to the organ which is entitled to request it. However." As regards the practice of the UN. The request for an advisory opinion was on a ͞legal question͟ within the meaning of Art. including the Fourth Geneva Convention and relevant SC and GA resolutions. striking down all arguments questioning its power to give advisory opinion. . The Court would point out that lack of clarity in the drafting of a question does not deprive the Court of jurisdiction." The Court did however examine the opposition of certain interested States to the request Palestinian Wall Case (2004) The UN GA requested the ICJ to give an advisory opinion on the legal consequences rising from the Israel͛s construction of the wall in the Occupied Palestinian Territory. The Court considers that the accepted practice of the General Assembly. in the case concerning the Legality of the Threat or Use of Nuclear Weapons. Article 12. The Court's reply is only of an advisory character: as such. and. 96. the Court took the position that to contend that it should not deal with a question couched in abstract terms is "a mere affirmation devoid of any justification" and that "the Court may give an advisory opinion on any legal question. this interpretation has evolved subsequently. par 1 was not violated. Russia argued that the Declaration was not by way of contract. As Russia is not a member of the League of Nations. but concerns directly the main point of the controversy and can only be decided by an investigation into the facts underlying the case. . par 1 of the UN Charter and Art. Court may give an opinion even on an abstract legal question. paragraph 1. The Court observes that the lack of consent (by Israel) to the Court's contentious jurisdiction by interested States has no bearing on the Court's jurisdiction to give an advisory opinion. under Article 14. should not be refused. inter alia. both the GA and the SC initially interpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on a question concerning the maintenance of international peace and security while the matter remained on the Council's agenda. including in and around East Jerusalem. it is doubtful if sufficient materials would be available to allow any judicial conclusion on whether Finland and Russia contracted on the terms of the Declaration as to the nature of Eastern Carelia͛s autonomy. considering the rules and principles of international law. refused to take part. however. thus the GA acted properly in requesting for the advisory opinion. the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures . The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States.UP Law B2009 Reviewer (Karichi Edition)   Page 80 of 130 Treaty itself. As regards the alleged lack of clarity of the terms of the GA's request and its effect on the "legal nature" of the question referred to the Court. because of lack of unanimity of the . the Court notes that there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security. The Court observes that twice the Security Council failed to act as contemplated in resolution 377 A(V). and if accepted. parties to a dispute. "require enforcement by coercive action". par 1 of the ICJ Statute. to that end. including the 4th Geneva Convention of 1949. The Court's Opinion is given not to the States. indeed it is scarcely susceptible of a reply otherwise than on the basis of law. permanent members. . is the basis of the Court's jurisdiction in contentious cases. it has no binding force. but not necessarily exclusive. It does not appear to the Court that the situation in this regard changed between 20 October 2003 and 8 December 2003. and relevant GA and Security Council Resolutions. of the Charter. itself an 'organ of the United Nations'. did not contravene the provisions of Article 12. On the contrary. Such CONSENT. It follows that no State. However. The Court does not consider that what is contended to be the abstract nature of the question posed to it raises an issue of jurisdiction. In that regard it can impose on States "an explicit obligation of compliance if for example it issues an order or command . Indeed. "been framed in terms of law and raise[s] problems of international law". the reply of the Court. A request for an advisory opinion is not in itself a "recommendation" by the General Assembly "with regard to [a] dispute or situation". As Russia. The question put to the Court is not one of abstract law. or act of aggression. The General Assembly does have the power.

and in any event. Human rights are also inviolable. That the Court does not have at its disposal requisite facts and evidence to enable it to reach its conclusions will also not prevent the giving of advisory opinion.and the Security Council may then draw conclusions from the Court's findings. The Court has at its disposal the report of the Secretary-General. while the General Assembly . we use human rights as the rights of every human being. i. The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs. Furthermore. or cannot be either disposed of or taken away voluntarily or involuntarily. Any denial or transgression of these rights constitutes a continuing violation. They are also imprescriptible. they would have relevance for the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. a residual core of an entire system of rights that cannot further be reduced. and it would take this circumstance carefully into account in any opinion it might give. the Court would recall. The Court does not however consider this a reason for it to decline to reply to the question asked. This is because criminal laws are defined by legislation. In the case of human rights. regardless of what each legal system defines as a ³person´. written statements submitted by numerous other participants which contain information relevant to a response to the question put by the General Assembly. Human rights abuses. and therefore the existence of a crime is a function of how one legal system defines the circumstances in which the crime is considered to have arisen. 17 There is debate. The Court finds that it has before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly. The Court observes that the question whether the evidence available to it is sufficient to give an advisory opinion must be decided in each particular instance. The Court's task would be to determine in a comprehensive manner the legal consequences of the construction of the wall. for example. At the same time. there may be justifications for these. There is therefore in the present case no lack of information such as to constitute a compelling reason for the Court to decline to give the requested opinion. With regard to the argument that the General Assembly has not made it clear what use it would make of an advisory opinion on the wall. since they do not arise from any legislation but are inherent in every civilization¶s notion of justice. In essence.e. One 15 16 Thanks to Ceejay. of course. no matter what might be its conclusions in any opinion it might give. these are the rights that every aspect of human civilization recognize as the barest minimum that every human being is entitled to without further qualifications.   Page 81 of 130 The issue is not a bilateral matter between Israel and Palestine and it cannot deny giving an opinion on that ground. As a logical extension of the inherent character of human rights. as well as a voluminous dossier submitted by him to the Court. which constitutes a negotiating framework for the resolution of the conflict. This recognition based on absolute consensus of the international community makes human rights universal in character. Giving of advisory opinion will not impede resolution of the IsraeliPalestinian conflict. The Court is conscious that the "Roadmap". The circumstance that others may evaluate and interpret these facts in a subjective or political manner can be no argument for a court of law to abdicate its judicial task. it is the Court's view that the construction of the wall must be deemed to be directly of concern to the United Nations. The Court cannot regard this factor as a compelling reason to decline to exercise its jurisdiction. what it stated in its Opinion on the Legality of the Threat or Use of Nuclear Weapons: "Certain States have observed that the General Assembly has not explained to the Court for what precise purposes it seeks the advisory opinion. WON the advisory opinion would serve a useful purpose is not important since it is the requesting which has the right to decide on its usefulness. The Court cannot substitute its assessment of the usefulness of the opinion requested for that of the organ that seeks such opinion. but this is a different matter of debate altogether. Beyond that. INTERNATIONAL ORGANIZATIONS15 1. it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions.UP Law B2009 Reviewer (Karichi Edition) by the General Assembly in the context of issues of judicial propriety. but this does not change the fact that there has been a violation18. Dave. Marco. The Court is aware that. 18 Contrast this to the modifying circumstances of criminal law where a person may not only be exempt from liability. human rights are also considered inalienable. Given the powers and responsibilities of the United Nations in questions relating to international peace and security. and MJ for this part. but there may also be a pronouncement that no crime has been committed in the first place. The Court has heard contrary positions advanced and there are no evident criteria by which it can prefer one assessment to another. the question that the General Assembly has chosen to ask of the Court is confined to the legal consequences of the construction of the wall. Nevertheless. That the construction of the wall is but one aspect of the conflict will also not prevent the giving of advisory opinion. It is not clear. C. HUMAN RIGHTS Crash Course in Basic International Human Rights Law What is the notion of human rights? The concept of human rights refers to that corpus of internationally and universally-recognized rights that are inherent in every human being. the effect of the opinion is a matter of appreciation.. For our purposes. if the recognized human right to life would apply to the ³unborn´ or the human fetus at the time of conception. The Court is indeed aware that the question of the wall is part of a greater whole. Thanks to Ceejay Balisacan for this portion. which would in certain cases be sufficient to exempt the perpetrators from any legal consequence. they are inextricably attached to every person from the time that person becomes a human being17." It follows that the Court cannot decline to answer the question posed based on the ground that its opinion would lack any useful purpose. and the Court would only examine other issues to the extent that they might be necessary to its consideration of the question put to it. what influence the Court's opinion might have on those negotiations: participants in the present proceedings have expressed differing views in this regard. a written statement updating his report. meaning they cannot be understood as having been waived or forgone by the mere failure to assert or vindicate them through the passage of time. the Court considers that the General Assembly has not yet determined all the possible consequences of its own resolution. their violation will always be considered violations although liability 16 . however. could go on for a number of years in one state without any ostensible opposition but such fact cannot be used to argue that the people of that state have already surrendered or waived vindication of their rights at any time in the future.

as embodied in the UDHR. the reserving party may be deemed as not having been a signatory at all. where legal systems have evolved their own laws punishing the violation of human rights23. sex. The UN Charter͛s reference to ͞fundamental human rights͟ found an authoritative expression in 1948 when the General Assembly adopted the Universal Declaration of Human Rights. Does human rights law apply during armed conflicts? YES. a compilation of 31 articles articulating what the international community believes are the most basic and fundamental rights that every human being is entitled to. therefore. the right to life is undeniable. therefore.UP Law B2009 Reviewer (Karichi Edition)   Page 82 of 130 characterization of human rights that has spurred a lot of debates that are ongoing until now is that human rights are indivisible. 24 Velasquez Rodriguez Case. In sum. the ICJ held Iran liable for the ³wrongful deprivation of liberty and the imposition of physical constraint in conditions of hardship´ towards the American hostages in the US Embassy. It can also consider emergency situations of human rights violations and make the same recommendations to the GA. or the normative 21 character of the content of the resolution . this argument proposes that the right to a fair trial. they can never be modified by contextual realities. and the European Court of Human Rights under the European Convention on Human Rights. but only if all other available local remedies have been exhausted. Human rights conventions have put in place mechanisms for the redress of human rights violations that can be brought even by individuals (no need for espousal by their states. The HRC. cultural. would be subjected to inhumane conditions of confinement can claim a violation of human rights nevertheless. in the dignity and worth of every human person. Any reservation to the convention. The express purposes of the United Nations include achieving ͞international cooperation in solving international problems of an economic. In essence. human rights violations may be addressed in the UN Human Rights Council. If the human rights abuse becomes so widespread and systematic as to constitute a threat to the peace or a breach of the peace. faith is reaffirmed ͞in fundamental human rights. Ultimately. then. the ICJ recognized that the Convention on Genocide was approved unanimously by the UN GA. UN Charter. we can validly may also be modified in a certain limited number of cases to be discussed infra. the violation of which would constitute a breach of a state¶s international obligation. In default of such laws. can only act on cases by investigation and recommendation. and provided further that such state espousing would have sufficient legal interest in the dispute. It undertakes a periodic review of all UN members͛ human rights records ʹ no country can be spared from the review ʹ and make recommendations to the General Assembly accordingly. human rights are enforced domestically. . then the Security Council can step into the picture provided all the requisites are present and all procedures are complied with as provided in Chapter 7 of the UN Charter. according to the Court. How are human rights enforced? Ideally. 20 Article 1 (3). However. it cannot modify its treaty obligation through domestic legislation. in the equal rights of men and women and of nations large and small͟19. however. human rights enforcement very largely is centered on domestic legislation and international treaty obligations. being the irreducible core of a system of rights. social. are legally binding in character. given their inherent and universal nature. What is the legal status of the UDHR? A General Assembly Resolution of the UN may be evidentiary of the existence of a customary norm of international law that is binding on all states. 19 Preambular Clause. Particularly. In contrast. A case can therefore be brought before the ICJ provided that the cause would be espoused by a state. further measures need to be sanctioned by the GA. or humanitarian character. 23 Obligations to protect and promote human rights may be embodied in domestic legislation to give it full force and effect. should only be confined to the non-normative provisions. However. Ideally. Since human rights are inviolable and inherent. or religion͟20. Iran or the Hostages Case. but those that fall within the rubric of the international legal system are those which originated from the Charter of the United Nations and the Universal Declaration of Human Rights. for example. however. If an act is properly attributable to a state under international law. In default of both. in the UN Charter. a human rights 24 violation would entail the international responsibility of that state . therefore. it can only enact domestic legislation to implement the treaty. An accused. even of armed conflict. Human rights will follow Such rights. if a state has ratified a human rights convention. Inter-American Court of Human Rights (1988). 22 In US v. On such basis. this notion presupposes that human rights. especially if the state itself is accused of the violation) ʹ examples of these are the Inter-American Court of Human Rights established under the American Convention on Human Rights. or the number of states-signatories. The ICJ. is not a legally binding instrument per se just like all other UN GA Resolutions. international human rights law applies at all times and at all places. Article 27 of the Vienna Convention on the Law of Treaties provides that ³a State may not invoke the provisions of its internal law as justification for its failure to perform a treaty´. therefore. therefore. has made a categorical pronouncement that the content of the UDHR already embodies 22 principles that are legally binding . The UN can only step in to bring a case before international attention. when found guilty. In the absence of such international mechanisms (as the case is in Asia. The UDHR. The enshrinement of human rights in these instruments was motivated by the desire to prevent the repetition of the atrocities committed during World War II. Once a state signs a treaty. argue that the UDHR principles have already been elevated to the status of customary law. but the right to education remains a matter of financial capacity. who has been given all the due process requirements of an impartial trial but who. cannot be subdivided so that one portion can be denied and the other granted. What is the position of international human rights law vis-à-vis international humanitarian law? Both of these bodies of international law aim at protecting the interests of every individual. Otherwise. or even afford more protection than what the treaty provides. The problematique comes in when certain human rights coincide with those that are perceived to be ͞hard to attain͟ ʹ for example. However. an individual would find it hard to litigate a case of violation. language. such customary status would depend on many factors like the existence of opinio juris to the contrary. one can have resort to international law. Where do we find human rights in the present international legal system? The concept of human rights can be found in numerous treatises and other scholarly works. UN Charter. cannot be granted only to be nullified by the subsequent denial of the right against cruel and unusual punishment. 21 In the 1951 ICJ Advisory Opinion on Reservations to the Convention on Genocide. where the only human rights court established was the one in the Arab conference). international humanitarian law becomes applicable only during instances of armed conflict. and so its normative content is necessarily binding on all states. but it can never lower the standards of obligation embodied in the treaty. and in promoting and encouraging respect for human rights and for fundamental freedoms for all without discrimination as to race.

This universalism-cultural relativism debate owes to the fact that developed Western states maintain that civil and political rights must be afforded protection alongside economic. can be validly given notice of such limitations.8). assembly. the single human rights document formerly prepared by the UN Commission on Human Rights were split into two after much debate. For such limitations to be lawful.. What are the current existing human rights instruments? MANY. In the meantime. national or social origin. Common Article 1 of the two conventions recognize the Right to Self-Determination. In armed conflicts. Asian communities do not find it objectionable to sacrifice a measure of their civil and political rights in favor of economic rights . Social. (2) THE TEST OF PURPOSE. and Degrading Treatment or Punishment. inhuman or degrading treatment or punishment. schools. The notable adherents of this view (mainly the strongman rulers of Asia like Mahathir and Lee Kuan-Yew) believe that.7). Aside from the UN Charter and the UDHR. Why is there a seeming dichotomy between civil and political rights on one hand and economic. the nature and extent of the limitations on the exercise of human rights must be adequately proportional to the purposes for which they were imposed. there are multifarious instruments. the Convention on the Rights of the Child. The limitations must be embodied in the law so that citizens. ICCPR and ICESCR. hence the refusal to derogate civil and political rights even for the sake of collective development). the military. Using these standards. while the ICESCR (which prescribes as human rights such rights as education. was more palatable to all concerned states because it contains absolute rules that are easily concretized. the right to freedom from forced and compulsory labor [art. treaties. language. The legal duty to ensure enjoyment of these rights implies an obligation to take positive steps to see to it first. for example. The most popular ones are the International Covenant on Civil and Political Rights (ICCPR). social and cultural rights on the other? The split between the ICCPR and the ICESCR is reflective of the ongoing debates between those who believe that human rights ought to be universal and those who say that they are culturally relative. prosecutors. they should pass the three-fold test of lawfulness: (1) THE TEST OF LEGALITY. ICCPR and ICESCR. the Optional Protocols to these two. and adequate standard of living) was viewed as heavily contingent on the level of economic development of the state. and the West have made many pronouncements that the cultural relativist argument is being used merely to justify strong state measures aimed at economic development but entailing sacrifices of civil and political rights. including freedom from arbitrary arrest and detention (art 9. and exploitation to a denial of human rights and a violation of the UN 27 Charter . 8(1) and (2)]. What do states undertake upon being parties to the ICCPR? Each State party ͞undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the. and religion) may be subject to certain lawful limitations.UP Law B2009 Reviewer (Karichi Edition)   Page 83 of 130 every human being wherever and whenever. both human rights and humanitarian law would apply simultaneously. and second. by virtue of which all peoples have the right to determine their political status and freely pursue their 25 economic. and such standard must be the same all over the world. the right to freedom from torture or cruel. 28 Article 2. Further. the Convention Against Torture and Other Cruel. therefore. but whether there is a clear and compelling social purpose that will be served by such act of limitation. and Cultural Rights (ICESCR). the right to freedom from slavery. the International Convention on the Elimination of all Forms of Racial Discrimination. including one͛s own [art. expression. who have every right to exercise their human rights to the fullest extent. the right to liberty and security of person. The limitations must be imposed for one or more specified legitimate purposes. 12(2)]. par. including a prohibition on being subjected to medical or scientific experimentation without one͛s free consent (art. The exercise of human rights is always presumed to be undertaken in a democratic society. ICCPR. sex. Cultural relativists. Declaration on the Granting of Independence to Colonial Countries and Peoples (1960). Is the exercise of human rights absolute in character? NO. and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. however. liberty of movement and freedom to choose one͛s residence [art. 10. the International Covenant on Economic.2. property. 12(1)]. the Convention on the Elimination of All Forms of Discrimination Against Women. for their own ends freely dispose of their natural wealth and resources and that in no case may a people be deprived of its own means of subsistence26. the slave-trade and servitude [art. and such purposes should also be known to the public. political or other opinion. liberty of movement. on the other hand. employment. The recognition of the right to selfdetermination arose from a UN GA Resolution which equated the subjection of peoples to alien subjugation. International human rights instruments. are communitarian in nature while Westerners are individualist in orientation. birth or other status͟28. police officers. The test is not whether the limitations are desirable or not harmful. The ICCPR. prison officials. such as race. believe that the protection of rights is a matter relative to the culture of a particular society.1. hospitals and the like. par. social and cultural development . we will tackle the two most widely-recognized instruments embodying the most comprehensive list of human rights ʹ the ICCPR and the ICESCR. Inhuman. For our purposes.. all peoples may.Covenant. recognize that the exercise of fundamental human rights (like speech. Common Article 1. notably. the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (art. the right not to be arbitrarily deprived of the right to enter Common Article 1. Are there common provisions to the ICCPR and ICESCR? YES. 11).10). social and cultural rights. they argue. religion. which are the concrete codifications of the human rights embodied in the UDHR. prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation (art. What are the rights guaranteed under ICCPR? These are the right to life (art. 7. the right to be free to leave any country. such as the courts (including administrative tribunals). domination. The debate is still ongoing. without distinction of any kind. (3) THE TEST OF PROPORTIONALITY. 26 27 25 .9). 6. and protocols regarding human rights. conventions. that domestic laws are modified when necessary in order to comply with the State͛s international legal obligations. especially if economic development would result to benefits accruing to the entire community (Asians. 8(3)]. colour. that these laws are indeed effectively implemented in practice by all public organs and officials.

secondly. para. the right to freedom from slavery.16). the right to vote in periodic elections by universal and equal suffrage and secret ballot. 15). 16. 6). 19. the right to a fair hearing in criminal and civil cases by an independent and impartial tribunal (art. 26. 16) and. the right to marry freely. the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation. 7). such as the right to a fair trial for persons threatened with the death penalty. the slave-trade and servitude (art. the right to freedom of opinion and of expression (art. there are three procedures for implementing the provisions of the ICCPR: (1) the 31 reportorial procedure . the reasons by which it was actuated͟. This condition means that the State party can only take measures derogating from its ͞obligations under the . Cassin of France. (6) the condition of non-discrimination. The strict conditions that govern the right of the States parties to resort to derogations from their legal obligations under said Article are: (1) the condition of a public emergency which threatens the life of the nation.14). sex. language. also fulfill the conditions set out in article 4(3) of the Covenant.13).195. Can states derogate from their legal obligations under the ICCPR? Are there non-derogable rights? YES. (4) the condition of strict necessity. the right to freedom of thought. and (3) the individual communications procedure . provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race. thus excluding minor or even more serious disturbances that do not affect the functioning of the State͛s democratic institutions or people͛s lives in general. This is an important condition since it is particularly in emergency situations that there is a risk of imposing discriminatory measures which have no objective and reasonable justification. 18). (2) the inter-State communications 32 33 procedure . for instance. On the basis of this condition. conscience and religion (art. 21). Covenant to the extent strictly required by the exigencies of the situation͟. The measures of derogation may not ͞involve discrimination solely on the ground of race. 16). colour. 30 UN doc. the right to be registered upon birth and the right to a nationality (art. the purpose thereof was ͞to prevent States from derogating arbitrarily from their obligations under the Covenant when such an action was not warranted by events͟30. How are the provisions of the ICCPR implemented? Under the ICCPR and its Optional Protocol. the right to freedom from torture or cruel. The State party envisaging a derogation must be facing a situation of exceptional threat that jeopardizes the nation͛s life.. it follows from the work of the Human Rights Committee that it is not possible to conclude a contrario that. other treaties for the protection of the individual or even international humanitarian law or customary international law. lastly. 23. as well as the right to have access to public service (art.15). language. In this notification it must describe ͞the provisions from which it has derogated and . others may also be non-derogable because they are indispensable to the effective enjoyment of the rights that are explicitly listed in article 4(2). in that the legislative measures taken must as such be strictly required by the exigencies of the emergency situation. hostility or violence (art. 12(4)]. Article 4(2) of the Covenant enumerates some rights from which no derogation can ever be made even in the direst of situations.4/SR. religion or social origin. one such example is the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4).. or religious hatred constituting incitement to discrimination. the right to freedom of association (art. 22). colour. Article 40 (1) The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the . The Committee has further held under the Optional Protocol to the ICCPR that ͞the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception͟. lastly. 82.11). (2): No derogation from articles 6. As was explained during the drafting of article 4. home or correspondence or to unlawful attacks on one͛s honor and reputation (art. (3) the condition of non-derogability of certain obligations. prohibition of war propaganda and of advocacy of national. 13. 17. the right to recognition as a person before the law (art. sex. 4(1) in fine). 8 (paragraphs 1 and 2). 11). explanation given by Mr. 16 and 18 may be made under this provision.. as compared to the ordinary limitation provisions dealt with above. religion and language (art. during marriage and at its dissolution (art. 27. the right to equality before the law and the equal protection of the law (art. religion or social origin͟ (art. because a specific right is not listed in article 4(2). 29 8(1) and (2)). to found a family and to equal rights and responsibilities of spouses as to marriage. In order to avail itself of the right of derogation. freedom from ex post facto laws and the retroactive application of heavier penalties than those that could be imposed when the crime was committed (art. ICCPR. inhuman or degrading treatment or punishment (art. the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation (art. p. 7. a State party must.17). A second notification must be submitted ͞on the date on which it terminates such derogation͟. racial. the right not to be subjected to arbitrary or unlawful interference with one͛s privacy.. 11. 31 Article 4 (1): In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed. 15. It is thus necessary to consider whether the measures concerned are strictly required in order to deal with the emergency situation. the right to popular participation in public affairs. certain legal safeguards against unlawful expulsions of aliens lawfully in the territory of a State party (art.UP Law B2009 Reviewer (Karichi Edition)   Page 84 of 130 one͛s own country [art. the prohibition of ex post facto laws (art. 15). Consequently. (7) the condition of international notification. some rights may not be derogated from because they are considered to be ͞inherent to the Covenant as a whole͟. and the right of minorities to enjoy their own culture. it can necessarily be derogated from. 20. 24. the right to legal personality (art. conscience and religion (art. such as. the right to freedom of thought. in principle. 25. 18. any individual measure taken on the basis of that legislation must likewise be strictly proportionate. However. the right of the child to special protection without discrimination. E/CN.20). authorized to examine whether measures of derogation might be unlawful as being inconsistent with other international treaties. and. (2) the condition of official proclamation: the existence of a public emergency which threatens the life of the nation must be ͞officially proclaimed͟. Article 4 of the ICCPR is known as the Derogation 29 Clause . by immediately submitting a notification of derogation to the other States parties through the Secretary-General.12). family. (5) the condition of consistency with other international legal obligations.19). the Human Rights Committee is.21).18). the condition of strict necessity compels a narrow construction of the principle of proportionality. These rights are: the right to life (art. the right to peaceful assembly (art. 14.

it may. Is the exercise of the rights under the ICESCR absolute in character? NO. (f) In any matter referred to it. the right to take part in cultural life. 33 Optional Protocol to the ICCPR. which in itself. including fair remuneration for work of equal value without distinction of any kind (art. either State shall have the right to refer the matter to the Committee. literary or artistic production of which one is the author (art. Furthermore. the undertaking to develop detailed plans of action where compulsory primary education is not yet secured (art. This shall not be the rule where application of the remedies is unreasonably prolonged. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation. 2(1)). the Committee on Economic. 32 ICCPR.35). to the maximum of its available resources. no further communication by any State Party shall be received after the notification of withdrawal of the declaration has been received by the Secretary-General. 11). may. Social and Cultural Rights ͞undertakes to take steps. after consultation with the Committee. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol. if any. (3) The Secretary-General of the United Nations. 6). Social and Cultural Rights emphasized in General Comment No. In other words. the Committee shall confine its report to a brief statement of the facts. the Committee shall confine its report to a brief statement of the facts and of the solution reached. and second. Article 41 (1) A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. (4) The Committee shall study the reports submitted by the States Parties to the present Covenant. limitations relating to the exercise of specific rights are also contained in article 8(1)(a) and (c). maternity protection. marriage to be freely entered into. with a view to achieving progressively the full realization of the rights recognized in the . the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant. including adequate food. A declaration may be withdrawn at any time by notification to the SecretaryGeneral. by notice given to the Committee and to the other State. submit a report: (i) If a solution within the terms of subparagraph (e) is reached. by written communication.UP Law B2009 Reviewer (Karichi Edition)   Page 85 of 130 What do states undertake upon being parties to the ICESCR? rights recognized herein and on the progress made in the enjoyment of those rights: (a) Within one year of the entry into force of the present Covenant for the State Parties concerned. pending. It shall transmit its reports. (2) All reports shall be submitted to the Secretary-General of the United Nations. 8). who shall transmit them to the Committee for consideration. clothing and housing. whereby the State may subject the enjoyment of the rights guaranteed by the Covenant ͞only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society͟. the undertaking in article 2(2) ͞to guarantee that the rights enunciated in the . including the right to gain one͛s living by work freely chosen or accepted (art. the right to form trade unions and join the trade union of one͛s choice (art. who shall transmit copies thereof to the other States Parties. where the exercise of the right to form and join trade to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. (2) The provisions of this article shall come into force when ten States Parties to the present Covenant have made declarations under paragraph 1 of this article. 13. unless the State Party concerned has made a new declaration. In every matter. referred to in subparagraph (b). 3 that ͞it also imposes various obligations which are of immediate effect͟. reference to domestic procedures and remedies taken. (b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication. protection and assistance to children and young persons (art. namely: first. in conformity with the generally recognized principles of international law. (g) The States Parties concerned. (c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter. to supply any relevant information. the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. (d) The Committee shall hold closed meetings when examining communications under this article. or available in the matter. Covenant will be exercised without discrimination͟ on certain specific grounds. individually and through international assistance and co-operation. two of these are of particular importance. especially economic and technical. transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence. ͞while the full realization of the relevant rights may be achieved progressively. (b) Thereafter whenever the Committee so requests.. 9). protection and assistance to the family. Covenant by all appropriate means.. or any other statement in writing clarifying the matter which should include. (ii) If a solution within the terms of subparagraph (e) is not reached. to the extent possible and pertinent. affecting the implementation of the present Covenant. In the view of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. including particularly the adoption of legislative measures͟ (art. Such steps should be deliberate. steps towards that goal must be taken within a reasonably short time after the Covenant͛s entry into force for the States concerned. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant. the right to education (art. shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/or in writing. the Committee may call upon the States Parties concerned. right to an adequate standard of living. and such general comments as it may consider appropriate. including social insurance (art. bring the matter to the attention of that State Party. the right to the highest attainable standard of physical and mental health (art. Communications received under this article shall be dealt with in accordance with the following procedure: (a) If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant.36). Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations. concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant͟. within twelve months after the date of receipt of notice under subparagraph (b). (5) States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article. and to the continuous improvement of living conditions (art. 7). 15). Article 1: A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject Each State party to the International Covenant on Economic. the right to enjoy just and favorable conditions of work. 14. (h) The Committee shall. What are the rights guaranteed under the ICESCR? These are the right to work. 10). The ICESCR contains a general limitation in article 4. the report shall be communicated to the States Parties concerned. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article. Although the Covenant thus ͞provides for progressive realization and acknowledges the constraints due to limits of available resources͟. is not qualified or limited by other considerations͟. Reports shall indicate the factors and difficulties. the right to social security. 12). . the undertaking in article 2(1) ͚͞to take steps͛. referred to in subparagraph (b). to enjoy the benefits of scientific progress and to benefit from the protection of the moral and material interests resulting from any scientific. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee... (e) Subject to the provisions of subparagraph (c). to the States Parties.

the Committee on Economic. THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (THE TADIC CASE) On 30 April 1992. Military posts were erected all over the city and the Serbian flag with four Cyrillic S's was flown from the City Hall. explained on the radio what had happened and the SDS's intentions with regard to Prijedor municipality. Unlike the ICCPR. many more civilians were beaten. or demanded the handing over of any possessions prisoners had managed to retain as the price of an open window or a plastic jar of water. The actual take-over was conducted in the early hours of the morning when armed Serbs took up positions at checkpoints throughout Prijedor. the Trial Chamber rendered its judgment. by being forced to spit on the Muslim flag.UP Law B2009 Reviewer (Karichi Edition)   Page 86 of 130 unions.cruel treatment). that is to say. robbed and murdered by Bosnian Serb paramilitary and military forces. Keraterm and Trnopolje camps. The attack on the nearby town of Kozarac on 24 May 1992. Social and Cultural Rights as an organ of independent experts parallel to the Human Rights Committee set up under the ICCPR. which included two days of artillery barrage and an assault by a mechanised brigade of troops. and sometimes risked being beaten if they asked to use them. The Committee consists of eighteen members who serve in their individual capacity. As the refugees were herded down the old Prijedor-Banja Luka road in the direction of Kozaruša. in 1985. After the take-over of Prijedor and the outlying areas. Yugoslav People͛s Army (͞JNA͟) soldiers. During the occupation of Kozarac. both male and female prisoners were subjected to severe mistreatment. However. otherwise. The crowded rooms were stifling in the summer heat and often guards refused to open windows in rooms crowded to overflowing. When the town had been captured. Milomir Stakić. many of them were singled out and. once removed from the column. unsuitable for human consumption. which will be discussed below: ISSUES OF INTERNATIONAL LAW RAISED BY THE PROSECUTION ON APPEAL Whether or not the victims were ͞protected persons͟ under Article 2 of the Tribunal͛s Statute (Trial Chamber held that some of them were not. as well as the right of trade unions to function freely. During the course of the ethnic cleansing of Kozarac. may be subjected to no restrictions other than ͞those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others͟. Prisoners were often forced to defecate and urinate in their rooms. The establishment of these camps was part of the ͞Greater Serbia plan͟ to expel nonSerbs from the Prijedor Municipality. How are the provisions of the ICESCR implemented? Under article 16 of the ICESCR. convicting Duško Tadić on the basis of individual criminal responsibility (Article 7(1) of the Statute of the Tribunal) with (1) Crimes against humanity (Article 5 of the Statute . They were also subjected to degrading psychological abuse. the Council created. it was suggested. in any event. inhumane acts). 16(2)(a)). the Serb forces confined thousands of Muslim and Croat civilians in the Omarska. INTERNATIONAL CRIMINAL LAW International Criminal Tribunals34 A. the Editor-in-Chief of Radio Prijedor at the time. On 7 May 1997. The discussion ͞is designed to achieve a constructive and mutually rewarding dialogue͟ so that the Committee members can get a fuller picture of the situation prevailing in the country concerned. as were acute cases of diarrhoea and dysentery. was summoned to the radio station in the early morning of 30 April 34 Thanks to Ceejay Balisacan for this portion . sing Serbian nationalist songs or to give the Serbian three-fingered salute. medical centre and bank. with soldiers and snipers on the roofs of the main buildings. 1992. torture and executions. which included beatings. ͞a society based on respect for the rights and freedoms of others͟. were shot by members of the Bosnian Serb forces. resulted in the killing of some 800 civilians out of a population of around 4. Can states derogate from their legal obligations under the ICESCR? NO. the radio station was surrounded by soldiers. sexual assaults. who before the take-over had been Vice Chairman of the Municipal Assembly and afterwards became the Chairman of the Serb Municipal Assembly. racial and/or religious grounds. Drinking water at Omarska was often denied to the prisoners for long periods and was. They entered buildings. Both the Defense and the Prosecution appealed the Trial Chamber͛s Decision on different grounds. From the travaux préparatoires relating to article 4 it is clear that it was considered important to include the condition that limitations had to be compatible with a democratic society. wearing a variety of uniforms. and it is the UN Economic and Social Council that is formally entrusted with monitoring compliance with the terms thereof (art. The Prosecution raises issues of international law. thereby enabling them to make ͞the comments they believe most appropriate for the most effective implementation of the obligations contained in the Covenant͟. the ICESCR does not contain any provision permitting derogations from the legal obligations incurred thereunder. Duško Tadić participated in the collection and forced transfer of civilians. the text might instead ͞very well serve the ends of dictatorship͟. declared that they had taken power and announced their decision to rename the Prijedor Municipality ͞Srpska opština Prijedor͟ (Serb Municipality of Prijedor). the parties undertake to submit ͞reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized͟ therein.000. The Defense relies on the argument that there has been a denial of the right to a fair trial and that there has been a mistake of facts. and men and their clothes quickly became filthy and skin diseases were prevalent. During confinement. the Serb Democratic Party (͞SDS͟) conducted a bloodless take-over of the town of Prijedor with the aid of the military and police forces. There was very little in the way of lavatories.persecutions on political. since the early arrangements for examining the periodic reports were not satisfactory. There were no effective washing facilities. Muharem Nezirević. causing sickness. and so the convictions of Tadic were increased) 2. As is the case with the Human Rights Committee. the Bosnian Serb forces proceeded to round up and drive out of the area on foot the entire non-Serb population. Appeals Court found that the victims are protected persons. prisoners had to wait hours before being allowed to use them. He was meted out a prison sentence of 20 years. When he arrived. and (2) Violations of the laws or customs of war (Article 3 thereof . the reports submitted by the States parties are considered in public meetings and in the presence of representatives of the State party concerned. occupied all of the prominent institutions such as the radio station.

The first caveat was ³that the act be linked geographically as well as temporally with the armed conflict´. from among the elements which had to be satisfied before a conviction for crimes against humanity could be recorded. at least. the Trial Chamber identified. subject to two caveats. The control required by international law may be deemed to exist when a State (or. It therefore does NOT make its applicability dependent on formal bonds and purely legal relations. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them. it may become international if [1] another State intervenes in that conflict through its troops. while having the nationality of the Party to the conflict in whose hands they find themselves. the act must not have been carried out for the purely personal motives of the perpetrator. Its primary purpose is to ensure the safeguards afforded by the Convention to those civilians who do not enjoy the diplomatic protection. It might be argued that before 6 October 1992. namely. the perpetrator must know of the broader context in which the act occurs. does not go so far as to include the issuing of specific orders by the State. they were nationals of Bosnia and Herzegovina. First. In other words. Thus the requirements set out in Article 4 of Geneva Convention IV are met: the victims were ͞protected persons͟ as they found themselves in the hands of armed forces of a State of which they were not nationals. and correlatively are not subject to the allegiance and control. the Party to the conflict) has a role in organising. even if in the circumstances of the case the perpetrators and the victims were to be regarded as possessing the same nationality. In other words. Hence. control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). the Convention intends to protect civilians (in enemy territory. or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The Trial Chamber further held that the requirement that the act must ³not be unrelated´ to the armed conflict involved two aspects. Who are ͞protected persons͟? Article 4(1) of Geneva Convention IV (protection of civilians). the need to prove the existence of an armed conflict and a nexus between the acts in question and the armed conflict. in the context of an armed conflict. In addition. Whether or not crimes against humanity can be committed for purely personal motives (Trial Chamber held in the negative35. or who are stateless persons. the victims did not owe allegiance to (and did not receive the diplomatic protection of) the State (the FRY) on whose behalf the Bosnian Serb armed forces had been fighting. choose their targets. the Convention automatically grants them the status of ͞protected persons͟. the nationals of the FRY had the same nationality as the citizens of Bosnia and Herzegovina. In addition. 2. Were the victims in this case protected persons? YES. it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question. training and equipping or providing operational support to that group. Article 4 of Geneva Convention IV. As to the nature of the nexus required. In the instant case the Bosnian Serbs. However. The second caveat was that the act and the conflict must be related or. Article 4 intends to look to the substance of relations. the Trial Chamber found that. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts. the Convention also intends to protect those civilians in occupied territory who. namely the nationality of the Socialist Federal Republic of Yugoslavia. Secondly. This requirement. or its direction of each individual operation. Indeed. subject to the provisions of Article 4(2). Appeals Court held that motives are an irrelevant factor to consider in dealing with crimes against humanity) 1. What is the extent of control necessary to conclude that a group is a de facto organ of a state? International rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. By contrast. . it has been shown that the Bosnian Serb forces acted as de facto organs of another State. in case of an internal armed conflict breaking out on the territory of a State. of the State in whose hands they may find themselves. in addition to financing. that the act must ³not be unrelated to the armed conflict´. those nationals are not ͞protected persons͟ as long as they benefit from the normal diplomatic protection of their State. Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act. Article 4 would still be applicable. applicable to the case at issue. alternatively. Nationals of a neutral State or a cobelligerent State are not treated as ͞protected persons͟ unless they are deprived of or do not enjoy diplomatic protection. not to their legal characterization as such. when a ͞Citizenship Act͟ was passed in Bosnia and Herzegovina. It may be inferred from the words ͞directed against any civilian population͟ in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of 35 In the Judgment. The extent of the requisite State control varies.UP Law B2009 Reviewer (Karichi Edition)   Page 87 of 130 1. it is sufficient for the purposes of crimes against humanity that the act occurred ³in the course or duration of an armed conflict´. [2] alternatively if some of the participants in the internal armed conflict act on behalf of that other State 3. as is apparent from the preparatory work. if interpreted in the light of its object and purpose. Even assuming that this proposition is correct. When can a conflict be considered as international in character? An armed conflict is international if it takes place between two or more States. defines ͞protected persons͟ . arguably had the same nationality as the victims. the FRY. In granting its protection. when they lose it or in any event do not enjoy it. including Tadic. Is mens rea relevant in crimes against humanity? ONLY TO A CERTAIN EXTENT. however. that is. is directed to the protection of civilians to the maximum extent possible.hence possible victims of grave breaches ʹ as those "in the hands of a Party to the conflict or Occupying Power of which they are not nationals". 5. occupied territory or the combat zone) who do not have the nationality of the belligerent in whose hands they find themselves. are refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic protection. coordinating or planning the military actions of the military group. 4. the position would not alter from a legal point of view. When can there be grave breaches of international humanitarian law under Article 2 of the Tribunal͛s Statute? When the [1] conflict is international in character AND [2] victims were ͞protected persons͟. it must be established whether the unlawful act had been publicly endorsed or approved ex post facto by the State at issue.

an occurrence that took place in times of peace. THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (TOKYO WAR CRIMES TRIBUNAL) The trial resulted from numerous war crimes attributed to the Empire of Japan (the entire list of atrocities was cited in the decision and it is long. together with their corresponding sources. a discriminatory intent requirement would prevent the penalization of random and indiscriminate violence intended to spread terror among a civilian population as a crime against humanity. however. It is an elementary rule of interpretation that one should not construe a provision or part of a provision as if it were superfluous and hence pointless: the presumption is warranted that law-makers enact or agree upon rules that are well thought out and meaningful in all their elements. the extermination of ͞class enemies͟ in the Soviet Union during the 1930s (admittedly. However. Obligations to preserve the territorial and administrative independence of China. racial or religious grounds as specified in paragraph (h) of Article 5. the object and purpose of Article 5 would be thwarted were it to be suggested that the discriminatory grounds required are limited to the five grounds put forth by the Secretary-General in his Report and taken up (with the addition. United States Declaration of 1901 Identic Notes of 1908 Nine-Power Treaty of 1922 Covenant of the League of Nations of 1920 2. generally speaking.UP Law B2009 Reviewer (Karichi Edition)   Page 88 of 130 widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern. racial and religious grounds͟? This specification would be illogical and superfluous. are: 1. Consequently. In light of the humanitarian goals of the framers of the Statute. in the opinion of the Appeals Chamber. The ordinary meaning of Article 5 makes it clear that this provision does not require all crimes against humanity to have been perpetrated with a discriminatory intent. The judgment of the Tribunal first lists down all the sources of international legal obligations of Japan towards the Allied Powers and all nations that they occupied during the war. The interpretation of Article 5 in the light of its object and purpose bears out the above propositions. or sexual preference. if it were otherwise. ͞fitted into such a pattern͟ ʹ are met. Does a textual interpretation of the Tribunal͛s Statute warrant the conclusion that discriminatory intent is necessary for all crimes against humanity? NO. United States Declaration of 1900 to 1901 Identic Notes of 1908 Nine-Power Treaty of 1922 . Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. The aim of those drafting the Statute was to make all crimes against humanity punishable. one fails to see why they should have seriously restricted the class of offences coming within the purview of ͞crimes against humanity͟. which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons. not in times of armed conflict) and the deportation of the urban educated of Cambodia under the Khmer Rouge between 1975-1979. thus leaving outside this class all the possible instances of serious and widespread or systematic crimes against civilians on account only of their lacking a discriminatory intent. provided it is understood that the two aforementioned conditions ʹ that the crimes must be committed in the context of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts. For example. The weight of authority supports the proposition that crimes against humanity can be committed for purely personal reasons. including those which. The conclusion is therefore warranted that the relevant case-law and the spirit of international rules concerning crimes against humanity make it clear that under customary law. or to require proof of the accused͛s motives. namely ͞persecutions͟ provided for in Article 5 (h). of the further ground of gender) in the statements made in the Security Council by three of its members. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. the socalled "Open Door Policy". age or infirmity. while fulfilling all the conditions required by the notion of such crimes. the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal͛s Statute. it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related. Such an interpretation of Article 5 would create significant lacunae by failing to protect victim groups not covered by the listed discriminatory grounds. There is nothing in the Statute. the Appeals Chamber does not consider it necessary to further require. a nexus between the specific acts allegedly committed by the accused and the armed conflict. declaring that discriminatory intent is not a requirement for crimes against humanity) 1. may not have been perpetrated on political. The experience of Nazi Germany demonstrated that crimes against humanity may be committed on discriminatory grounds other than those enumerated in Article 5 (h). this requirement is not laid down for all crimes against humanity. B. why should Article 5(h) specify that ͞persecutions͟ fall under the Tribunal͛s jurisdiction if carried out ͞on political. Such intent is only made necessary for one sub-category of those crimes. ͞purely personal motives͟ do not acquire any relevance for establishing whether or not a crime against humanity has been perpetrated. Very long. Appeals Court reversed the decision. such obligations having been found to have been breached. A logical construction of Article 5 also leads to the conclusion that. A fortiori. These obligations. in the words of the Trial Chamber. EXCEPT to the extent that this condition is a consequence or a restatement of the other two conditions mentioned. such as physical or mental disability. Similarly. Whether or not all crimes against humanity require a discriminatory intent (Trial Chamber held in the affirmative. Obligations to preserve for the world the principle of equal and impartial trade with all parts of China. 2. Indeed. Can crimes against humanity be committed for purely personal reasons? YES.) as having been committed during the entire period immediately preceding. in one case. the World War II. as a substantive element of mens rea. Thus to convict an accused of crimes against humanity. provide other instances which would not fall under the ambit of crimes against humanity based on the strict enumeration of discriminatory grounds suggested by the Secretary-General in his Report. and during. as in the case of Nazi conduct before the Second World War.

To these defenses the Tribunal quotes the same passage in the Nuremberg Tribunal decision before which the same challenges were raised by German war officials. Obligations to suppress the manufacture. Opium Convention of 1912 League of Nations of 1925 Opium Convention of 1931 4. Hague III of 1907 9. are committing a crime in so doing. The principle of international law which under certain circumstances protects the representative of a state cannot be applied to acts which are condemned as criminal by international law. War is the act of a nation for which there is no individual responsibility under international law. it would be unjust if his wrong were allowed to go unpunished. Obligations relative to humane conduct in warfare. Hague of 1899 Hague of 1907 Pact of Paris of 1928 8. Obligations to solve disputes between nations by diplomatic means. and so far from it being unjust to punish him. Hague V of 1907 6. or arbitration. Aggressive war is not per se illegal and the Pact of Paris of 1928 renouncing war as an instrument of national policy does not enlarge the meaning of war crimes nor constitute war a crime. . with its inevitable and terrible consequences. The Instrument of Surrender which provides that the Declaration of Potsdam will be given effect imposes the condition that Conventional War Crimes as recognized by international law at the date of the Declaration (26 July. Identic Notes of 1908 Four-Power Treaty of 1921 Nine-Power Treaty of 1922 Hague of 1907 Pact of Paris of 1928 7. Several of the accused being prisoners of war are triable by court martial as provide by the Geneva Convention 1929 and not by this Tribunal. Obligations to respect the territory of Powers interested in the Pacific. . the Tribunal ratiocinated: . Obligations designed to ensure the pacific settlement of international disputes. The Tribunal also established the rationale for holding responsible government officials for the ill-treatment of prisoners during the war. 2. Killings in the course of belligerent operations except in so far as they constitute violations of the rules of warfare or the laws and customs of war are the normal incidents of war and are not murder. of 1919 In addition. . 1945) would be the only crimes prosecuted. . or mediation. The maxim 'nullum crimen sine lege' is not a limitation of sovereignty but is in general a principle of justice. 3. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue for in such circumstances the attacker must know that he is doing wrong. the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law. 'the fact that a defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment.' This provision is in conformity with the laws of all nations . The passage reads: ͞The Charter [referring to the Charter creating the Tribunal] is not an arbitrary exercise of power on the part of the victorious nations but is the expression of international law existing at the time of its creation. These jurisdictional defenses are: 1. 5. the relevant principles of international law enunciated in the decision of the Tribunal were those made in response to the jurisdictional challenge posed by the accused Japanese war officials. Four-Power Treaty of 1921 Notes to Netherlands and Portugal of 1926 Covenant of the League of Nations of 1920 5. In placing the burden of ensuring the proper treatment of prisoners upon the government (rather than merely the military officers actually engaged in war in the field) of the state holding them in detention. In the opinion of the Tribunal.UP Law B2009 Reviewer (Karichi Edition)   Page 89 of 130 3. Obligations to keep inviolate the territory of neutral Powers. 4. Hague IV of 1907. After the signing of the pact any nation resorting to war as an instrument of national policy breaks the pact. traffic in. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Geneva Red Cross of 1929 Geneva P. 1928)? The Nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy and expressly renounced it. and use of opium and analogous drugs. The question is what was the legal effect of this pact (Pact of Paris August 27. The Allied Powers acting through the Supreme Commander have no authority to include in the Charter of the Tribunal and to designate as justiciable "Crimes against Peace" (Article 5(a)). 6.W. The true test which is found in varying degrees in the criminal law of most nations is not the existence of the order but whether moral choice was in fact possible͟. The Charter specifically provides . 7.O. The provisions of the Charter are "ex post facto" legislation and therefore illegal. and that those who plan and wage such a war. Obligation to give previous warning before commencing hostilities.

2. as one of the principal organs of the Government. Officials. they fail to secure its continued and efficient working. They had knowledge that such crimes were being committed. In the case of the duty of Governments to prisoners held by them in time of war those persons who constitute the Government have the principal and continuing responsibility for their prisoners. is responsible for the care of prisoners is not absolved from responsibility if. it be shown that within the units under his command conventional war crimes have been committed of which he knew or should have known. or naval. In particular. A Cabinet member may resign. are those persons who direct and control the functions of Government. Officials in those departments which were concerned with the well-being of prisoners. or should. If having established such a system. Such persons fail in this duty and become responsible for ill-treatment of prisoners if: 1. 3. . So can Ministers of War and of the Navy. must be at the same pains to ensure obedience to his orders in this respect as he would in respect of other orders he has issued on matters of the first importance.UP Law B2009 Reviewer (Karichi Edition)   Page 90 of 130 ͞Prisoners taken in war and civilian internees are in the power of the Government which captures them. 2. they are responsible for those crimes. Nevertheless. even though they delegate the duties of maintenance and protection to others. This responsibility is not limited to the duty of mere maintenance but extends to the prevention of mistreatment. A member of a Cabinet which collectively. such persons are not responsible if a proper system and its continuous efficient functioning be provided for and conventional war crimes be committed unless: 1. In the multitude of duties and tasks involved in modern government there is of necessity an elaborate system of subdivision and delegation of duties. have had such knowledge he is not excused for inaction if his Office required or permitted him to take any action to prevent such crimes. Each of such persons has a duty to ascertain that the system is working and if he neglects to do so he is responsible. by order. It is the duty of all those on whom responsibility rests to secure proper treatment of prisoners and to prevent their ill-treatment by establishing and securing the continuous and efficient working of a system appropriate for these purposes. secure proper treatment and prevent ill-treatment of prisoners. if crimes are committed against prisoners under their control. for example. That crimes are notorious. in this sense. IV in 1907 and repeated in the Geneva Prisoner of War Convention of 1929. however. If he has knowledge of ill-treatment of prisoners. he elects to continue as a member of the Cabinet. This is the position even though the Department of which he has the charge is not directly concerned with the care of prisoners. but elects to remain in the Cabinet thereby continuing to participate in its collective responsibility for protection of prisoners he willingly assumes responsibility for any ill-treatment in the future. They fail to establish such a system. military. whether civilian. to the frequency of reports of such crimes. Indeed the Governments responsible. They are at fault in having railed to acquire such knowledge. Responsibility for the care of prisoners of war and of civilian internees (all of who we will refer to as "prisoners") rests therefore with the Government having them in possession. having direct and immediate control of prisoners. having knowledge of the commission of the crimes in the sense already discussed. If. For the last two centuries. of the likely occurance of which they had. numerous and widespread as to time and place are matters to be considered in imputing knowledge. 4. this position has been recognised and the customary law to this effect was formally embodied in the Hague Convention No. or 2. This was not always the case. otherwise responsible. Military or Naval Officers in command of formations having prisoners in their possession. for example. or to any other circumstances he should have been put upon further enquiry as to whether those assurances were true or untrue. The duty to prisoners is not a meaningless obligation cast upon a political abstraction. If. and omitting or failing to secure the taking of measures to prevent the commission of such crimes in the future. but for negligence or supineness. for him to show that he accepted assurances from others more directly associated with the control of the prisoners if having regard to the position of those others. He does not discharge his duty by merely instituting an appropriate system and thereafter neglecting to learn of its application. and having such knowledge they failed to take such steps as were within their power to prevent the commission of such crimes in the future. Army of Navy Commanders can. On the other hand it is not enough for the exculpation of a person. such a person had. acts of inhumanity to prisoners which are forbidden by the customary law of nations as well as by conventions are to be prevented by the Government having responsibility for the prisoners. An Army Commander or a Minister of War. In general the responsibility for prisoners held by Japan may be stated to have rested upon: 1. Members of the Government. It is a specific duty to be performed in the first case by those persons who constitute the Government. or should have had knowledge in advance. In this case and in the above regard we are concerned with the members of the Japanese Cabinet. a commander who takes no adequate steps to prevent the occurrence of such crimes in the future will be responsible for such future crimes. In the discharge of these duties to prisoners Governments must have resort to persons.

For the purposes of international law. the acts relied on before the outbreak of war must have been in execution of. who were likely to be hostile to the Government. they are to be treated as German territory and Germany can choose to deal with such territories as though they were part of it. because of the "general participation " clause in Article 2 of the Hague Convention of 1907. However. or in connection with. In the opinion of the Tribunal it is not necessary to decide this question. 1. has any application where the subjugation is the result of the crime of aggressive war. SECOND DEFENSE: The rules of warfare ceased to be applicable by the time the occupied territories were incorporated into Germany because. and in this case. crimes against humanity have undoubtedly been committed either through (1) war crimes. before 1939. and insofar as the inhumane acts charged in the Indictment. crimes against humanity have been committed. The persecution of Jews during the same period is established beyond all doubt. after 1939. but by 1939 these rules laid down in the Convention were recognised by all civilised nations. The Tribunal only partly disagrees with this. which are also crimes against humanity or (2) crimes committed in the execution of an aggressive war. but from the beginning of the war in 1939 war crimes were committed on a vast scale. a fact which gave Germany authority to deal with the occupied countries as though they were part of Germany. and that many of them were kept in concentration camps in circumstances of great horror and cruelty. by then. and then only if all the belligerents are parties to the Convention. any crime within the jurisdiction of the Tribunal. C. repression and murder of civilians in Germany before the war of 1939. dependent as it is upon military conquest." which it thus recognised to be then existing. The policy of persecution. it is a sufficient answer that these territories were never added to the Reich. But the Convention expressly stated that it was an attempt " to revise the general laws and customs of war. The Tribunal rejects this argument. FIRST DEFENSE: The humanitarian law provisions of the Hague Convention do not apply because some of the states who participated in the War were not parties to the Convention. there is no doubt whatever that political opponents were murdered in Germany before the war. 2. 1939. which were also crimes against humanity. saying that the doctrine of subjugation is not applicable as long as there remains a force of resistance within the occupied territories. particularly in European states that they have occupied and against the Jewish people who have become primary victims of its Aryanist campaign." Several of the belligerents in the recent war were not parties to this Convention. That clause provided: "The provisions contained in the regulations (Rules of Land Warfare referred to in Article 1 as well as in the present Convention do not apply except between contracting powers. The policy of terror was certainly carried out on a vast scale. and in many cases was organised and systematic. therefore. or in connection with. To constitute crimes against humanity. Like the Tokyo War Crimes Tribunal. any such crime. but a mere protectorate was established over them. The Tribunal rejects this proposition and categorically states that the provisions of the Hague Convention are articulations of customary international law relating to warfare and so all states are bound to them regardless of conventional obligations: It is argued that the Hague Convention does not apply in this case.͟ 3. it has not been satisfactorily proved that they were done in execution of. was most ruthlessly carried out. the following are some of the essential principles enunciated by the Tribunal in response to the various defenses raised by the accused German war officials. because there was no sufficient evidence to establish that. As to the war crimes committed in Bohemia and Moravia. to the extent of their powers. In the view of the Tribunal it is unnecessary in this case to decide whether this doctrine of subjugation. to prevent their occurrence in the future that they are responsible for such future crimes͟. but if their functions included the administration of the system of protection of prisoners and if they had or should have had knowledge of crimes and did nothing effective. the doctrine could not apply to any territories occupied after the 1st September. the latter being under the jurisdiction of the Tribunal and as such would also constitute crimes against humanity: ͞With regard to crimes against humanity.UP Law B2009 Reviewer (Karichi Edition)   Page 91 of 130 Department Officials having knowledge of ill-treatment of prisoners are not responsible by reason of their failure to resign. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter. and committed after the beginning of the . The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners. because Germany had completely subjugated those countries and incorporated them into the German Reich. THE NUREMBERG TRIBUNAL The trial resulted from the war crimes and other atrocities imputed to German war officials during the World War II. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter. The Tribunal is of the opinion that revolting and horrible as many of these crimes were. THIRD DEFENSE: There were committed no crimes against humanity during the war. and as long as such territories were not sufficiently shown to have been incorporated into the occupying power through evidence: ͞A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war. the decision of the Tribunal in Nuremberg lists down (at length) all the atrocities allegedly committed by Germany during the war.

2. or other grounds that are universally recognized as impermissible under international law.UP Law B2009 Reviewer (Karichi Edition)   Page 92 of 130 war. ADMISSIBILITY. (f) Torture. (g) Rape. of the Statute against any civilian population. ͻ There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms ͞took place in the context of and was associated with͟. sexual slavery. (k) Other inhumane acts of a similar character intentionally causing great suffering. cultural. (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. forced pregnancy. ethnical. (b) Extermination. in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court. (j) The crime of apartheid. or any other form of sexual violence of comparable gravity. pursuant to or in furtherance of a State or organizational policy to commit such attack. (d) Imposing measures intended to prevent births within the group. national. (e) Forcibly transferring children of the group to another group. racial or religious group as such: (a) Killing members of the group. gender as defined in paragraph 3. they were all committed in execution of. Art 8 War Crimes The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949. the aggressive war. a national.acts committed with intent to destroy. namely. Art 7 Crimes against humanity -any of the following acts when committed as part of a (1) widespread or systematic attack directed against any civilian population (2) with knowledge of the attack (a) Murder. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. enforced prostitution. ͞Attack directed against a civilian population͟ in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7. racial. However. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. paragraph 1. This Tribunal shall be complementary to national criminal jurisdictions. or in connection with. security and well-being of the world. Art 3 ʹ The seat of the Court is in the Netherlands at Hague Art 4 ʹ The Court shall have international legal personality. (c) Enslavement. the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. (i) Enforced disappearance of persons. PART 1 ESTABLISHMENT OF THE COURT Art 1 Establishes the ICC as a permanent institution having jurisdiction over most serious crimes of national concern and shall be complementary to national criminal jurisdictions. any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention 36 Thanks to mj navarro for this portion . PART 2 JURISDICTION. ͻ In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international. or serious injury to body or to mental or physical health. This was done so to create a permanent tribunal which would deal with grave crimes that threaten the peace. ethnic. and therefore constituted crimes against humanity. in whole or in part. enforced sterilization. ͻ There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international. In the case of an emerging widespread or systematic attack against a civilian population. religious.͟ STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Rome 36 Statute) Overview The Rome Statute established the International Criminal Court. AND APPLICABLE LAW Art 5 Jurisdiction The jurisdiction of the Court is limited to the following crimes a) b) c) d) Genocide Crimes against humanity War crimes Crime of aggression ʹ Court shall exercise jurisdiction over this once a provision is adopted defining this crime. the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack. Art 6 Genocide . For the purpose of this Statute. (d) Deportation or forcible transfer of population. (h) Persecution against any identifiable group or collectivity on political. did not constitute war crimes. (b) Causing serious bodily or mental harm to members of the group.

any of the following acts committed against persons taking no active part in the hostilities. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. he or she shall inform those who provided the information. Article 16 Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council. paragraph 3. has requested the Court to that effect. (b) The State of which the person accused of the crime is a national. he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation. in a resolution adopted under Chapter VII of the Charter of the United Nations. the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State. If the acceptance of a State not a Party to this Statute -by declaration lodged with the Registrar. If the Pre-Trial Chamber. one or more of the following States shall be Parties to the Statute or shall have accepted the jurisdiction of ICC (a) The State on the territory of which the conduct in question occurred or. If. paragraph 3. namely. 4. unless that State has made a declaration under article 12. that request may be renewed by the Council under the same conditions. 2. any of the following acts: (c) In the case of an armed conflict not of an international character. The Prosecutor shall analyse the seriousness of the information received. if the crime was committed on board a vessel or aircraft. Article 11 Jurisdiction ratione temporis 1. or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15 Article 14 Referral of a situation by a State Party Article 15 Prosecutor 1. unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. In order to determine unwillingness in a particular case. isolated and sporadic acts of violence or other acts of a similar nature. (c) The person concerned has already been tried for conduct which is the subject of the complaint. 5. 3. within the established framework of international law. and that the case appears to fall within the jurisdiction of the Court. Art 13 Exercise of jurisdiction if: (a) referred to the Prosecutor by a State Party (b) referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations. namely. Before exercising jurisdiction.UP Law B2009 Reviewer (Karichi Edition)   Page 93 of 130 (b) Other serious violations of the laws and customs applicable in international armed conflict. detention or any other cause: (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions. it shall authorize the commencement of the investigation. (d) The case is not of sufficient gravity to justify further action by the Court. upon examination of the request and the supporting material. Article 12 Preconditions to the exercise of jurisdiction 1. State Party accepts the jurisdiction of ICC 2. Article 17 Issues of admissibility 1. 2. 3. (b) It has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned. as applicable: . unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. serious violations of article 3 common to the four Geneva Conventions of 12 August 1949. such as riots. after the preliminary examination referred to in paragraphs 1 and 2. the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation. If a State becomes a Party to this Statute after its entry into force. the Court shall consider. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. and a trial by the Court is not permitted under article 20. considers that there is a reasonable basis to proceed with an investigation. having regard to the principles of due process recognized by international law. 2. whether one or more of the following exist. accept the exercise of jurisdiction by the Court with respect to the crime in question. A case is inadmissible where: (a) It is being investigated or prosecuted by a State which has jurisdiction over it. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. wounds. the State of registration of that vessel or aircraft. 6.

abets or otherwise assists in its commission or its attempted commission. (b) Orders. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. Except as provided in this Statute. provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. solicits or induces the commission of such a crime which in fact occurs or is attempted. 2. Elements of Crimes and its Rules of Procedure and Evidence. PART 3. whether as an individual. paragraph 3. where appropriate. GENERAL PRINCIPLES OF CRIMINAL LAW Article 22 Nullum crimen sine lege (No crime if there is no law punishing it) The definition of a crime shall be strictly construed and shall not be extended by analogy. age. (e) In respect of the crime of genocide. 2. political or other opinion. applicable treaties and the principles and rules of international law. regardless of whether that other person is criminally responsible. the Court shall consider whether. wealth. a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime. and be without any adverse distinction founded on grounds such as gender as defined in article 7. this Statute. religion or belief. Article 25 Individual criminal responsibility In accordance with this Statute. the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. 3. . or (ii) Be made in the knowledge of the intention of the group to commit the crime. as appropriate. No person who has been tried by another court for conduct also proscribed under article 6. In order to determine inability in a particular case. prosecuted or convicted. 3. where such activity or purpose involves the commission of a crime within the jurisdiction of the Court. 2. aids. national. 3.UP Law B2009 Reviewer (Karichi Edition)   Page 94 of 130 (a) The proceedings made to shield the person concerned from criminal responsibility (b) There has been an unjustified delay in the proceedings (c) The proceedings were not or are not being conducted independently or impartially. directly and publicly incites others to commit genocide. ethnic or social origin. In the event of a change in the law applicable to a given case prior to a final judgement. Article 23 Nulla poena sine lege A person convicted by the Court may be punished only in accordance with this Statute. was inconsistent with an intent to bring the person concerned to justice. (b) In the second place. prosecuted or convicted shall apply. race. the law more favourable to the person being investigated. Article 21 Applicable law 1. jointly with another or through another person. The Court shall apply: (a) In the first place. in the circumstances. no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. (c) For the purpose of facilitating the commission of such a crime. general principles of law derived by the Court from national laws of legal systems of the world including. In case of ambiguity. Article 20 Ne bis in idem 1. language. including providing the means for its commission. Article 24 Non-retroactivity ratione personae 1. the definition shall be interpreted in favour of the person being investigated. birth or other status. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights. (c) Failing that. including the established principles of the international law of armed conflict. The Court may apply principles and rules of law as interpreted in its previous decisions. colour. the national laws of States that would normally exercise jurisdiction over the crime. 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court. or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. due to a total or substantial collapse or unavailability of its national judicial system.

or (ii) Constituted by other circumstances beyond that person's control. a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. THE GENEVA CONVENTIONS37 The First Convention Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has 1. A mistake of law may. but the crime does not occur because of circumstances independent of the person's intentions. 12 August 1949. 2. as a result of the intoxication. shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. in the case of war crimes. a person has intent where: (a) In relation to conduct. Article 32 Mistake of fact or mistake of law The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations. and the person acts necessarily and reasonably to avoid this threat. Unless otherwise provided. WHEN DOES IT APPLY Art. a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. and (c) The order was not manifestly unlawful. against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. that person means to cause that consequence or is aware that it will occur in the ordinary course of events. orders to commit genocide or crimes against humanity are manifestly unlawful. "Know" and "knowingly" shall be construed accordingly. he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court. provided that the person does not intend to cause a greater harm than the one sought to be avoided. International Humanitarian Law A. whether military or civilian. 2. that person means to engage in the conduct. or disregarded the risk. even if the state of war is not recognized by one of them. Article 26 Exclusion of jurisdiction over persons under eighteen Article 29 Non-applicability of statute of limitations been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person. that. the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. In addition to the provisions which shall be implemented in peacetime. at the time of that person's conduct: (a) The person suffers from a mental disease (b) The person is in a state of intoxication unless the person has become voluntarily intoxicated under such circumstances that the person knew.UP Law B2009 Reviewer (Karichi Edition)   Page 95 of 130 (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior. be a ground Article 33 Superior orders and prescription of law 1. property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission. 2. (b) In relation to a consequence. (b) The person did not know that the order was unlawful. For the purposes of this article. Article 30 Mental element 1. However. Such a threat may either be: (i) Made by other persons. however. For the purposes of this article. In addition to other grounds for excluding criminal responsibility provided for in this Statute. (c) The person acts reasonably to defend himself or herself or another person or. a person shall not be criminally responsible if. Geneva. 2. 3. 37 Thanks to marco lainez for this portion . Article 31 Grounds for excluding criminal responsibility 1. For the purposes of this article. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.

as a minimum. they shall not wilfully be left without medical assistance and care. Art. The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may. detention. spontaneously take up arms to resist the invading forces. without any adverse distinction founded on race. affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. (c) outrages upon personal dignity. colour. Wounded and sick. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. Although one of the Powers in conflict may not be a party to the present Convention. fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates. cruel treatment and torture. shall be respected and protected in all circumstances. in particular. The present Convention shall apply to the wounded and sick belonging to the following categories: (1) Members of the armed forces of a Party to the conflict. as well as members of the medical personnel and chaplains. 12. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. even if this territory is occupied. members of labour units or of services responsible for the welfare of the armed forces. who do not benefit by more favourable treatment under any other provisions in international law. (4) Persons who accompany the armed forces without actually being members thereof. in particular humiliating and degrading treatment. without any adverse distinction founded on sex. by means of special agreements. how to treat them] Art. political opinions. shall be strictly prohibited. For the protected persons who have fallen into the hands of the enemy. as far as military considerations permit. nor shall conditions exposing them to contagion or infection be created. of the merchant marine and the crews of civil aircraft of the Parties to the conflict. belonging to a Party to the conflict and operating in or outside their own territory. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be. nationality. if the latter accepts and applies the provisions thereof. mutilation. pilots and apprentices. or any other similar criteria. provided they carry arms openly and respect the laws and customs of war. 13. supply contractors. Members of the armed forces and other persons mentioned in the following Article. (b) taking of hostages. the present Convention shall apply until their final repatriation. subject to the consent of the Parties to the conflict concerned. (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court. who are wounded or sick. and by the special agreements referred to in the foregoing Article. and for their relief. undertake for the protection of wounded and sick. medical personnel and chaplains. birth or wealth. race. may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force. . and the provisions of international law concerning prisoners of war shall apply to them. including those of organized resistance movements. Art. such as the International Committee of the Red Cross. (b) that of having a fixed distinctive sign recognizable at a distance. subjected to torture or to biological experiments. or any other cause. (2) Members of other militias and members of other volunteer corps. as well as members of militias or volunteer corps forming part of such armed forces. 4. Art. wounds. the following provisions: (1) Persons taking no active part in the hostilities. even if the said occupation meets with no armed resistance. who on the approach of the enemy. The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall. may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded and sick. Art. religion or faith. WOUNDED AND SICK Art. without having had time to form themselves into regular armed units. provided that such militias or volunteer corps. including masters. sex. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. the wounded and sick of a belligerent who fall into enemy hands shall be prisoners of war. Subject to the provisions of Article 12. or any other similar criteria. 3. 9. (5) Members of crews. Any attempts upon their lives. provided that they have received authorization from the armed forces which they accompany. CHAPTER II. They shall furthermore be bound by the Convention in relation to the said Power. received or interned in their territory. or violence to their persons. and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict. leave with them a part of its medical personnel and material to assist in their care. the Powers who are parties thereto shall remain bound by it in their mutual relations. (2) The wounded and sick shall be collected and cared for. Women shall be treated with all consideration due to their sex. in particular murder of all kinds. war correspondents. if such there be. 14. To this end. 5. including such organized resistance movements. as well as to dead persons found. shall in all circumstances be treated humanely. the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person. religion. all or part of the other provisions of the present Convention. they shall not be murdered or exterminated. (c) that of carrying arms openly. Only urgent medical reasons will authorize priority in the order of treatment to be administered. An impartial humanitarian body. 7. WHAT IS REQUIRED [who are the protected people.UP Law B2009 Reviewer (Karichi Edition)   Page 96 of 130 The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. Art. such as civil members of military aircraft crews. each Party to the conflict shall be bound to apply. Art. (6) Inhabitants of a non-occupied territory.

lists showing the exact location and markings of the graves. (h) particulars concerning wounds or illness. certificates of death or duly authenticated lists of the dead. local arrangements may be concluded between Parties to the conflict for the removal or exchange of wounded and sick from a besieged or encircled area. DUTY TO RECORD THE WOUNDED/SICK/DEAD Art. Likewise. or local arrangements made. For this purpose. under their direction. personal or serial number. through the Information Bureau mentioned in the second paragraph of Article 16. exchange and transport of the wounded left on the battlefield. Parties to the conflict shall ensure that burial or cremation of the dead. The civilian population shall respect these wounded and sick. regimental. the unit or establishment is protected by a picket or by sentries or by an escort. At all times. of the bodies. No one may ever be molested or convicted for having nursed the wounded or sick. and to search for the dead and prevent their being despoiled. which are found on the dead. (b) army. (d) first name or names. 18. if possible according to the rites of the religion to which they belonged. Parties to the conflict shall. Medical Units and Establishments Art. if possible by a medical examination. with a view to confirming death. accompanied by statements giving all particulars necessary for the identification of the deceased owners. They shall likewise collect and forward through the same bureau one half of a double identity disc. an armistice or a suspension of fire shall be arranged. but shall at all times be respected and protected by the Parties to the conflict. 24. Parties to the conflict shall prepare and forward to each other through the same bureau. 17. Parties to the conflict shall record as soon as possible. Medical personnel exclusively engaged in the search for. and particularly after an engagement. These records should if possible include: (a) designation of the Power on which he depends. and that they use the arms in their own defence. the circumstances and reasons for cremation shall be stated in detail in the death certificate or on the authenticated list of the dead. together with particulars of the dead interred therein. (2) That in the absence of armed orderlies. to allow subsequent exhumations and to ensure the identification of bodies. any particulars which may assist in his identification. transport or treatment of the wounded or sick. In case of cremation. their personnel shall be free to pursue their duties. Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked. money and in general all articles of an intrinsic or sentimental value. Should the adverse Party take or retake control of the area. and at latest at the end of hostilities. that their graves are respected. (4) That personnel and material of the veterinary service are found in the unit or establishment. he shall likewise grant these persons the same protection and the same facilities. to protect them against pillage and ill-treatment. MEDICAL UNITS GONE BAD Art. or the identity disc itself if it is a single disc. RIGHT TO BURIAL Art. in respect of each wounded. One half of the double identity disc. 22. 19. to ensure their adequate care. shall be sent in sealed packets. 15.UP Law B2009 Reviewer (Karichi Edition)   Page 97 of 130 Art. carried out individually as far as circumstances permit. take all possible measures to search for and collect the wounded and sick. even in invaded or occupied areas. as well as by a complete list of the contents of the parcel. The following conditions shall not be considered as depriving a medical unit or establishment of the protection guaranteed by Article 19: (1) That the personnel of the unit or establishment are armed. Chapter IV. The provisions of the present Article do not relieve the occupying Power of its obligation to give both physical and moral care to the wounded and sick. properly maintained and marked so that they may always be found. (c) surname. and for the passage of medical and religious personnel and equipment on their way to that area. is preceded by a careful examination. grouped if possible according to the nationality of the deceased. or the collection. staff exclusively engaged in the . last wills or other documents of importance to the next of kin. and the possible transportation to the home country. should remain on the body. Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. (g) date and place of capture or death. spontaneously to collect and care for wounded or sick of whatever nationality. these Services shall exchange. They shall further ensure that the dead are honourably interred. (e) date of birth. THOSE WHO AID THE WOUNDED ARE NOT TO BE HARMED Art. whatever the site of the graves. or in that of the wounded and sick in their charge. which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country. as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in such establishments and units. sick or dead person of the adverse Party falling into their hands. Chapter III. As soon as circumstances permit. (5) That the humanitarian activities of medical units and establishments or of their personnel extend to the care of civilian wounded or sick. 16. granting persons who have responded to this appeal the necessary protection and facilities. or cause of death. they shall organize at the commencement of hostilities an Official Graves Registration Service. Personnel Art. without forming an integral part thereof. Whenever circumstances permit. These articles. As soon as possible the above mentioned information shall be forwarded to the Information Bureau described in Article 122 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. which shall transmit this information to the Power on which these persons depend through the intermediary of the Protecting Power and of the Central Prisoners of War Agency. or in the prevention of disease. without delay. are found in the unit or establishment. The military authorities may appeal to the charity of the inhabitants voluntarily to collect and care for. Should they fall into the hands of the adverse Party. to permit the removal. establishing identity and enabling a report to be made. (3) That small arms and ammunition taken from the wounded and sick and not yet handed to the proper service. The military authorities shall permit the inhabitants and relief societies. These provisions shall likewise apply to the ashes. and in particular abstain from offering them violence. together with unidentified articles. the wounded and sick. (f) any other particulars shown on his identity card or disc.

that is to say. 40. times and on routes specifically agreed upon between the belligerents concerned. from the outbreak of hostilities. Art. as well as chaplains attached to the armed forces. in case of urgent military necessity. Chapter VII. but shall be respected by the belligerents. Personnel whose retention is not indispensable by virtue of the provisions of Article 28 shall be returned to the Party to the conflict to whom they belong. shall have direct access to the military and medical authorities of the camp who shall grant them the facilities they may require for correspondence relating to these questions. in accordance with their professional ethics. CAPTURED HEALTH WORKER/HELPERS Art. In all questions arising out of their duties. None of the preceding provisions shall relieve the Detaining Power of the obligations imposed upon it with regard to the medical and spiritual welfare of the prisoners of war. shall be respected and protected in all circumstances. During hostilities the Parties to the conflict shall make arrangements for relieving where possible retained personnel. and the chaplains. the Parties to the conflict shall agree regarding the corresponding seniority of the ranks of their medical personnel. shall not be attacked. the commanders of forces in the field may make use of them. Pending their return. personal belongings. valuables and instruments belonging to them. (c) Although retained personnel in a camp shall be subject to its internal discipline. the aircraft with its occupants may continue its flight after examination. 35. aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment. those emblems are also recognized by the terms of the present Convention. they shall continue to carry out. the heraldic emblem of the red cross on a white ground. clearly marked. upper and lateral surfaces. Medical Transports Art. the red crescent or the red lion and sun on a white ground. but may not be diverted from their purpose as long as they are required for the care of wounded and sick. They shall continue to fulfil their duties under the orders of the adverse Party and shall preferably be engaged in the care of the wounded and sick of the Party to the conflict to which they themselves belong. Art. Personnel thus retained shall not be deemed prisoners of war. As a compliment to Switzerland. in place of the red cross. however. 33. while flying at heights. The Distinctive Emblem Art. the spiritual needs and the number of prisoners of war require. The material and stores defined in the present Article shall not be intentionally destroyed. As from the outbreak of hostilities. material and stores of fixed medical establishments of the armed forces shall remain subject to the laws of war. Buildings and Material Art. Medical aircraft. preferably those of the armed forces to which they themselves belong. The Detaining Power shall put at their disposal the means of transport required. In the event of an involuntary landing in enemy or enemyoccupied territory. is retained as the emblem and distinctive sign of the Medical Service of armed forces. 36. if any. Chapter VI. (b) In each camp the senior medical officer of the highest rank shall be responsible to the military authorities of the camp for the professional activity of the retained medical personnel. this medical officer. They shall be provided with any other markings or means of identification that may be agreed upon between the belligerents upon the outbreak or during the course of hostilities. the distinctive emblem prescribed in Article 38. provided that they make previous arrangements for the welfare of the wounded and sick who are nursed in them. In the event of a landing thus imposed. and under the authority of its competent service. On their departure. The medical personnel shall be treated according to Article 24 and the Articles following. The buildings. Nevertheless. The selection of personnel for return under Article 30 shall be made irrespective of any consideration of race.UP Law B2009 Reviewer (Karichi Edition)   Page 98 of 130 administration of medical units and establishments. The personnel designated in Article 24 and in Articles 26 and 27 shall wear. the wounded and sick. as soon as a road is open for their return and military requirements permit. they shall not be deemed prisoners of war. Nevertheless. they shall take with them the effects. on condition that the Party to the conflict who captures them shall in all cases ensure the care of the wounded and sick they contain. 30. including those of the societies designated in Article 26. Nevertheless they shall at least benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. Chapter V. Art. Transports of wounded and sick or of medical equipment shall be respected and protected in the same way as mobile medical units. but preferably according to the chronological order of their capture and their state of health. Within the framework of the military laws and regulations of the Detaining Power. their medical and spiritual duties on behalf of prisoners of war. formed by reversing the Federal colours. together with their national colours on their lower. affixed to the left arm. in the case of countries which already use as emblem. 28. The material of mobile medical units of the armed forces which fall into the hands of the enemy. in proportion to the number of prisoners and the distribution of the said personnel in the camps. Unless agreed otherwise. Nevertheless they shall at least benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. For this purpose. Art. shall be retained only in so far as the state of health. 38. Personnel designated in Articles 24 and 26 who fall into the hands of the adverse Party. They shall bear. as well as the crew of the aircraft shall be prisoners of war. 31. they shall not. they shall be subject to the laws of war. Parties to the conflict may determine by special agreement the percentage of personnel to be retained. shall be reserved for the care of wounded and sick. and shall settle the procedure of such relief. Should such transports or vehicles fall into the hands of the adverse Party. Medical aircraft shall obey every summons to land. The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law. They shall further enjoy the following facilities for carrying out their medical or spiritual duties: (a) They shall be authorized to visit periodically the prisoners of war in labour units or hospitals outside the camp. be required to perform any work outside their medical or religious duties. a water-resistant armlet . religion or political opinion. flights over enemy or enemyoccupied territory are prohibited.

societies. or to have ordered to be committed. Chapter VIII. at the outbreak of hostilities. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. one copy being kept by the home country. which shall not be less favourable than those provided by Article 105 and those following.UP Law B2009 Reviewer (Karichi Edition)   Page 99 of 130 bearing the distinctive emblem. Nevertheless. In no circumstances may the said personnel be deprived of their insignia or identity cards nor of the right to wear the armlet. By reason of the tribute paid to Switzerland by the adoption of the reversed Federal colours. It may also. if possible. or as parts of such marks. The identity card shall be uniform throughout the same armed forces and. in time of war. of the emblem or the designation " Red Cross " or " Geneva Cross " or any sign or designation constituting an imitation thereof. wilfully causing great suffering or serious injury to body or health. of a similar type in the armed forces of the High Contracting Parties. shall in all circumstances be treated humanely. 49. as a minimum. shall also carry a special identity card bearing the distinctive emblem. The Parties to the conflict may be guided by the model which is annexed. or ordering to be committed. the following provisions: (1) Persons taking no active part in the hostilities. and extensive destruction and appropriation of property. the rank and the service number of the bearer. The card shall bear the photograph of the owner and also either his signature or his fingerprints or both. of the arms of the Swiss Confederation. in time of peace as in time of war. to the emblems and marks mentioned in the second paragraph of Article 38. sick. In case of loss. It shall be worded in the national language. to disseminate the text of the present Convention as widely as possible in their respective countries. Art. without effect on any rights acquired through prior use. such High Contracting Parties as were not party to the Geneva Convention of 27 July 1929. if committed against persons or property protected by the Convention: wilful killing. as far as possible. signs or marks designated in the first paragraph. the date of birth. the medical personnel and the chaplains. so that the principles thereof may become known to the entire population. Art 2. the accused persons shall benefit by safeguards of proper trial and defence. 53. Although one of the Powers in conflict may not be a party to the present Convention. buildings or equipment protected by the Convention are prohibited. in particular to the armed fighting forces. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing. issued and stamped by the military authority. to confer the protection of the Convention. Geneva. not justified by military necessity and carried out unlawfully and wantonly. in particular. may grant to prior users of the emblems. The High Contracting Parties undertake. Repression of Abuses and Infractions DUTY TO LEGISLATE Art. whether as trademarks or commercial marks. detention. 46. Chapter IX. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. including biological experiments. shall be prohibited at all times. hand such persons over for trial to another High Contracting Party concerned. they shall be entitled to receive duplicates of the cards and to have the insignia replaced. Execution of the Convention Art. each Party to the conflict shall be bound to apply. and shall state in what capacity he is entitled to the protection of the present Convention. shall mention at least the surname and first names. They shall inform each other. civil instruction. at least in duplicate. and of the confusion which may arise between the arms of Switzerland and the distinctive emblem of the Convention. provided such High Contracting Party has made out a prima facie case. personnel. by way of example. the Powers who are parties thereto shall remain bound by it in their mutual relations. before its own courts. Art. shall be prohibited at all times. In addition to the provisions which shall be implemented in peacetime. to the present Convention. Art. 12 August 1949. Reprisals against the wounded. or any other cause. such grave breaches. the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. 50. any of the grave breaches of the present Convention defined in the following Article. firms or companies either public or private. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. societies or firms. to include the study thereof in their programmes of military and. Sick and Shipwrecked Members of Armed Forces at Sea. The Second Convention Convention (II) for the Amelioration of the Condition of Wounded. regardless of their nationality. if it prefers. It shall be embossed with the stamp of the military authority. even if the said occupation meets with no armed resistance. 47. wounds. without any . The use by individuals. or for a purpose contrary to commercial honesty. Art 3. the use by private individuals. and in accordance with the provisions of its own legislation. if possible. and. even if the state of war is not recognized by one of them. or in circumstances capable of wounding Swiss national sentiment. other than those entitled thereto under the present Convention. The prohibition laid down in the first paragraph of the present Article shall also apply. designations. and shall bring such persons. Such personnel. a time limit not to exceed three years from the coming into force of the present Convention to discontinue such use provided that the said use shall not be such as would appear. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. This card shall be water-resistant and of such size that it can be carried in the pocket. Grave breaches to which the preceding Article relates shall be those involving any of the following acts. In all circumstances. and irrespective of the date of its adoption. They shall furthermore be bound by the Convention in relation to the said Power. Identity cards should be made out. or of marks constituting an imitation thereof. in addition to wearing the identity disc mentioned in Article 16. torture or inhuman treatment. whatever the object of such use. of the model they are using. if the latter accepts and applies the provisions thereof.

or violence to their persons. provided that such militias or volunteer corps. sick or shipwrecked on board military hospital ships. (4) Persons who accompany the armed forces without actually being members thereof. colour. members of labour units or of services responsible for the welfare of the armed forces. humiliating and degrading treatment. religion. Wounded. it shall be ensured. war correspondents. sick and shipwrecked shall be collected and cared for. The Parties to the conflict should further endeavour to bring into force. and the provisions of international law concerning prisoners of war shall apply to them. who are at sea and who are wounded. Art 13. (c) that of carrying arms openly. Art 15. . in particular murder of all kinds. (b) that of having a fixed distinctive sign recognizable at a distance. (2) Members of other militias and members of other volunteer corps. and hospital ships belonging to relief societies or to private individuals. by means of special agreements. (d) that of conducting their operations in accordance with the laws and customs of war. Women shall be treated with all consideration due to their sex. Any attempts upon their lives. according to circumstances. political opinions. such as the International Committee of the Red Cross. (b) taking of hostages. supply contractors. birth or wealth. (6) Inhabitants of a non-occupied territory who. (5) Members of crews. and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict received or interned in their territory. Such persons shall be treated humanely and cared for by the Parties to the conflict in whose power they may be. pilots and apprentices. Only urgent medical reasons will authorize priority in the order of treatment to be administered. to a neutral port or even to a port in enemy territory. of the merchant marine and the crews of civil aircraft of the Parties to the conflict. whether it is expedient to hold them. provided that the wounded and sick are in a fit state to be moved and that the warship can provide adequate facilities for necessary medical treatment. belonging to a Party to the conflict and operating in or outside their own territory. The present Convention shall apply to the wounded. spontaneously take up arms to resist the invading forces. as well as members of the medical personnel and chaplains. without any adverse distinction founded on sex. including such organized resistance movements. in particular. may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. In case of hostilities between land and naval forces of Parties to the conflict. who do not benefit by more favourable treatment under any other provisions of international law. An impartial humanitarian body. provided that they have received authorization from the armed forces which they accompany. 1949. provided they carry arms openly and respect the laws and customs of war. that they can take no further part in operations of war. Art 5. or any other similar criteria. where so required by international law. Art 7. Chapter II. nor shall conditions exposing them to contagion or infection be created. mutilation. subjected to torture or to biological experiments. (2) The wounded. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. including those of organized resistance movements. cruel treatment and torture. (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. Forces put ashore shall immediately become subject to the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12. the provisions of the present Convention shall apply only to forces on board ship. sick and shipwrecked at sea belonging to the following categories: (1) Members of the armed forces of a Party to the conflict. Wounded. the wounded. as well as to dead persons found. even if this territory is occupied. as well as members of militias or volunteer corps forming part of such armed forces. religion or faith. it being understood that the term "shipwreck" means shipwreck from any cause and includes forced landings at sea by or from aircraft. in particular. and by the special agreements referred to in the foregoing Article. (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court. as well as merchant vessels. Subject to the provisions of Article 12. prisoners of war thus returned to their home country may not serve for the duration of the war. sex. such as civilian members of military aircraft crews. nationality. OBLIGATIONS OF THE RESCUED Art 14. sick or shipwrecked. whatever their nationality. Art 4. Members of the armed forces and other persons mentioned in the following Article. Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded. In the last case. shall be respected and protected in all circumstances. All warships of a belligerent Party shall have the right to demand that the wounded. If wounded. may offer its services to the Parties to the conflict. (c) outrages upon personal dignity. the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person. on the approach of the enemy. Art 16. sick and shipwrecked persons. fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates.UP Law B2009 Reviewer (Karichi Edition)   Page 100 of 130 adverse distinction founded on race. yachts and other craft shall be surrendered. race. sick and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war. without having had time to form themselves into regular armed units. The captor may decide. affording all the judicial guarantees which are recognized as indispensable by civilized peoples. all or part of the other provisions of the present Convention. they shall not be murdered or exterminated. or any other similar criteria. including masters. they shall not wilfully be left without medical assistance and care. To this end. sick or shipwrecked persons are taken on board a neutral warship or a neutral military aircraft. Sick and Shipwrecked Art 12. shall be strictly prohibited. or to convey them to a port in the captor's own country. sick and shipwrecked. if such there be.

they will act at their own risk. without delay. sick or shipwrecked persons. they shall remain liable to capture for any violations of neutrality they may have committed. where so required by international law. 1949 shall be applicable. (e) date of birth. If dead persons are landed. Where a double identity disc is used. and those having of their own accord collected wounded. in respect of each shipwrecked. Art 21. last wills or other documents of importance to the next of kin. but may not be diverted from their purpose so long as they are required for the wounded and sick. failing arrangements to the contrary between the neutral and the belligerent Powers. apply them to other purposes in case of urgent military necessity. (b) army. The Parties to the conflict shall record as soon as possible. Art 30. or cause of death. Parties to the conflict shall ensure that burial at sea of the dead. as well as by a complete list of the contents of the parcel. Any hospital ship in a port which falls into the hands of the enemy shall be authorized to leave the said port. wounded. to treating them and to transporting them. Whenever circumstances permit. take all possible measures to search for and collect the shipwrecked. These ships must be provided with certificates from the responsible authorities. Parties to the conflict shall prepare and forward to each other through the same bureau. wounded and sick. which are found on the dead. Sick-bays and their equipment shall remain subject to the laws of warfare. During and after an engagement. The High Contracting Parties undertake not to use these vessels for any military purpose. Should fighting occur on board a warship. is preceded by a careful examination. accompanied by statements giving all particulars necessary for the identification of the deceased owners. yachts or other craft. Nevertheless. The characteristics which must appear in the notification shall include registered gross tonnage. 1949 shall be protected from bombardment or attack from the sea. the Parties to the conflict shall conclude local arrangements for the removal of the wounded and sick by sea from a besieged or encircled area and for the passage of medical and religious personnel and equipment on their way to that area. but shall at all times be respected and protected. sick and shipwrecked without distinction of nationality. sick and shipwrecked. These articles. stating that the vessels have been under their control while fitting out and on departure. establishing identity and enabling a report to be made. by officially recognized relief societies or by private persons shall have the same protection as military hospital ships and shall be exempt from capture. which shall transmit this information to the Power on which these persons depend through the intermediary of the Protecting Power and of the Central Prisoners of War Agency. Military hospital ships. They may. on condition that their names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed. Art 20. The vessels described in Articles 22. and to collect the dead. (c) surname. sick or shipwrecked persons who are landed in neutral ports with the consent of the local authorities. any particulars which may assist in his identification. carried out individually as far as circumstances permit. shall enjoy special protection and facilities to carry out such assistance. the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12. (g) date and place of capture or death. 24. be so guarded by the neutral Power. or the identity disc itself if it is a single disc. 25 and 27 shall afford relief and assistance to the wounded. DUTY TO NOTIFY Art 19. the length from stem to stern and the number of masts and funnels. (h) particulars concerning wounds or illness. 1949. Parties to the conflict shall. regimental. in no case. that the said persons cannot again take part in operations of war. to ensure their adequate care. ships built or equipped by the Powers specially and solely with a view to assisting the wounded. if the Party to the conflict on which they depend has given them an official commission and in so far as the provisions of Article 22 concerning notification have been complied with. Art 18. . the sick-bays shall be respected and spared as far as possible. if possible by a medical examination. personal or serial number.UP Law B2009 Reviewer (Karichi Edition)   Page 101 of 130 Art 17. and to search for the dead and prevent their being despoiled. with a view to confirming death. but. The costs of hospital accommodation and internment shall be borne by the Power on whom the wounded. that is to say. The Parties to the conflict may appeal to the charity of commanders of neutral merchant vessels. Art 29. Wounded. (f) any other particulars shown on his identity card or disc. As soon as possible the above-mentioned information shall be forwarded to the information bureau described in Article 122 of the Geneva Convention relative to the Treatment of Prisoners of War of August 12. These records should if possible include: (a) designation of the Power on which he depends. Chapter III. sick or shipwrecked persons. shall be sent in sealed packets. They shall likewise collect and forward through the same bureau one half of the double identity disc. be captured on account of any such transport. to take on board and care for wounded. together with unidentified articles. to protect them against pillage and ill-treatment. Such vessels shall in no wise hamper the movements of the combatants. the commander into whose power they have fallen may. after ensuring the proper care of the wounded and sick who are accommodated therein. Hospital Ships Art 22. Establishments ashore entitled to the protection of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12. Hospital ships utilized by National Red Cross Societies. money and in general all articles of an intrinsic or sentimental value. shall. Art 24. of the bodies. Art 28. sick or shipwrecked persons depend. Vessels of any kind responding to this appeal. sick or dead person of the adverse Party falling into their hands. may in no circumstances be attacked or captured. Art 23. (d) first name or names. certificates of death or duly authenticated lists of the dead. After each engagement. one half of the disc should remain on the body. in the absence of any promise to the contrary.

Merchant vessels which have been transformed into hospital ships cannot be put to any other use throughout the duration of hostilities. if committed against persons or property protected by the Convention: wilful killing. for their own defence or that of the sick and wounded. the Powers who are parties thereto shall remain bound by it in their mutual relations. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing. and shall bring such persons. They shall furthermore be bound by the Convention in relation to the said Power. and in accordance with the provisions of its own legislation. the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. concerned. even if the said occupation meets with no armed resistance. Ships chartered for that purpose shall be authorized to transport equipment exclusively intended for the treatment of wounded and sick members of armed forces or for the prevention of disease. Geneva. these emblems are also recognized by the terms of the present Convention. Chapter IV. The adverse Power shall preserve the right to board the carrier ships. (b) taking of hostages. the emblem of the red cross on a white ground shall be displayed on the flags. whether or not there are wounded and sick on board. (5) The transport of equipment and of personnel intended exclusively for medical duties. (3) The discovery on board hospital ships or in sick-bays of portable arms and ammunition taken from the wounded. including biological experiments. For this purpose. medical and hospital personnel of hospital ships and their crews shall be respected and protected. humiliating and degrading treatment. (c) outrages upon personal dignity. any of the grave breaches of the present Convention defined in the following Article. In addition to the provisions which shall be implemented in peace time. detention. Although one of the Powers in conflict may not be a party to the present Convention. By agreement amongst the Parties to the conflict. as a minimum. or ordering to be committed. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. the following provisions: (1) Persons taking no active part in the hostilities. colour. The religious. wilfully causing great suffering or serious injury to body or health. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. even if the state of war is not recognized by one of them. regardless of their nationality. in particular. Personnel Art 36. torture or inhuman treatment. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. shall in all circumstances be treated humanely. sick or shipwrecked civilians. 12 August 1949. The following conditions shall not be considered as depriving hospital ships or sick-bays of vessels of the protection due to them: (1) The fact that the crews of ships or sick-bays are armed for the maintenance of order. without any adverse distinction founded on race. or to have ordered to be committed. or any other similar criteria. in particular murder of all kinds. The Distinctive Emblem (same pa rin) Art 41. (2) The presence on board of apparatus exclusively intended to facilitate navigation or communication. cruel treatment and torture. Chapter VI. in place of the red cross. Grave breaches to which the preceding Article relates shall be those involving any of the following acts. not justified by military necessity and carried out unlawfully and wantonly. sex. or any other cause. armlets and on all equipment employed in the Medical Service. birth or wealth.UP Law B2009 Reviewer (Karichi Edition)   Page 102 of 130 Art 33. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. Art 3. the red crescent or the red lion and sun on a white ground. Chapter V. Chapter VIII. Repression of Abuses and Infractions (same) Art 50. (4) The fact that the humanitarian activities of hospital ships and sick-bays of vessels or of the crews extend to the care of wounded. before its own courts. Art 51. religion or faith. they may not be captured during the time they are in the service of the hospital ship. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. Art 2. provided such High Contracting Party has made out a prima facie case. 1949. It may also. Under the direction of the competent military authority. if the latter accepts and applies the provisions thereof. in the case of countries which already use as emblem. neutral observers may be placed on board such ships to verify the equipment carried. (2) The wounded and sick shall be collected and cared for. provided that the particulars regarding their voyage have been notified to the adverse Power and approved by the latter. In all circumstances. Nevertheless. Medical Transports (very similar to medical land transports) Art 38. each Party to the conflict shall be bound to apply. (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. over and above the normal requirements. but not to capture them or seize the equipment carried. sick and shipwrecked and not yet handed to the proper service. free access to the equipment shall be given. Art 35. The Third Convention Convention (III) relative to the Treatment of Prisoners of War. wounds. such grave breaches. mutilation. which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12. and extensive destruction and appropriation of property. hand such persons over for trial to another High Contracting Party . if it prefers. the accused persons shall benefit by safeguards of proper trial and defence.

are persons belonging to one of the following categories. those Articles concerning the Protecting Power. as well as members of militias or volunteer corps forming part of such armed forces. (c) that of carrying arms openly. (4) Persons who accompany the armed forces without actually being members thereof. (d) that of conducting their operations in accordance with the laws and customs of war. who have been received by neutral or nonbelligerent Powers on their territory and whom these Powers are required to intern under international law. Irrespective of the individual responsibilities that may exist. When prisoners of war are transferred under such circumstances. Art 7. in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat. and will be regarded as a serious breach of the present Convention. who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict. all or part of the other provisions of the present Convention. who shall provide them for that purpose with an identity card similar to the annexed model. without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties. upon being notified by the Protecting Power. members of labour units or of services responsible for the welfare of the armed forces. and by the special agreements referred to in the foregoing Article. to the armed forces of the occupied country. where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned. if the occupying Power considers it necessary by reason of such allegiance to intern them. including masters. without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8. The following shall likewise be treated as prisoners of war under the present Convention: (1) Persons belonging. take effective measures to correct the situation or shall request the return of the prisoners of war. the Power by whom the prisoners of war were transferred shall. 126 and. (5) Members of crews. (6) Inhabitants of a non-occupied territory. Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates. dental or hospital treatment of the prisoner concerned and carried out in his interest. . DEFINITION OF POW Art 4. from the armed forces which they accompany. B. 15. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. Should any doubt arise as to whether persons. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. responsibility for the application of the Convention rests on the Power accepting them while they are in its custody. such as civilian members of military aircraft crews. 5867. war correspondents. Art 13. 30. C. provided that they have received authorization. pilots and apprentices. who do not benefit by more favourable treatment under any other provisions of international law. even though it has originally liberated them while hostilities were going on outside the territory it occupies. General Protection of Prisoners of War Art 12. including those of organized resistance movements. 92. Prisoners of war are in the hands of the enemy Power. in the sense of the present Convention. Nevertheless. Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. but not of the individuals or military units who have captured them. or having belonged. supply contractors. or where they fail to comply with a summons made to them with a view to internment. (2) Members of other militias and members of other volunteer corps. having committed a belligerent act and having fallen into the hands of the enemy. Such requests must be complied with. who on the approach of the enemy spontaneously take up arms to resist the invading forces. even if this territory is occupied. Where such diplomatic relations exist. including such organized resistance movements. if such there be. belong to any of the categories enumerated in Article 4. (b) that of having a fixed distinctive sign recognizable at a distance. such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. provided that such militias or volunteer corps. the Detaining Power is responsible for the treatment given them. Prisoners of war must at all times be humanely treated. belonging to a Party to the conflict and operating in or outside their own territory. without having had time to form themselves into regular armed units. fifth paragraph. prisoners of war must at all times be protected.UP Law B2009 Reviewer (Karichi Edition)   Page 103 of 130 An impartial humanitarian body. particularly against acts of violence or intimidation and against insults and public curiosity. A. The Parties to the conflict should further endeavour to bring into force. if that Power fails to carry out the provisions of the Convention in any important respect. Prisoners of war. 10. the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention. Art 5. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited. provided they carry arms openly and respect the laws and customs of war. of the merchant marine and the crews of civil aircraft of the Parties to the conflict. no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical. In particular. by means of special agreements. may offer its services to the Parties to the conflict. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention. such as the International Committee of the Red Cross. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. Likewise. Part II. (2) The persons belonging to one of the categories enumerated in the present Article.

first names. or which are changed into such currency at the prisoner's request. likewise their metal helmets and gas masks and like articles issued for personal protection. Sums of money carried by prisoners of war may not be taken away from them except by order of an officer. or where the climate is injurious for them. first names and rank. Prisoners of war shall be evacuated. As far as possible the card shall measure 6. when such articles are withdrawn. of not going outside its perimeter. either within or without its own territory. Effects and articles used for their clothing or feeding shall likewise remain in their possession. rank and unit of the person issuing the said receipt. and shall be issued in duplicate. Art 22. or exposed to unpleasant or disadvantageous treatment of any kind. beyond certain limits. or both. they shall not be interned in penitentiaries. of the rights such capacity confers except in so far as the captivity requires. Badges of rank and nationality. The identity card may. are bound on their personal honour scrupulously to fulfil. decorations and articles having above all a personal or sentimental value may not be taken from prisoners of war. Sums in the currency of the Detaining Power. . except arms. Only those prisoners of war who. personal or serial number. as soon as possible after their capture. and after the amount and particulars of the owner have been recorded in a special register and an itemized receipt has been given. owing to wounds or sickness. shall be removed as soon as possible to a more favourable climate. Art 15. At no time should prisoners of war be without identity documents. military equipment and military documents. any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. shall be placed to the credit of the prisoner's account as provided in Article 64. would run greater risks by being evacuated than by remaining where they are. Prisoners of war who. the procedure laid down for sums of money impounded shall apply. Art 19. he may render himself liable to a restriction of the privileges accorded to his rank or status. horses. Captivity Section 1. All effects and articles of personal use. shall remain in the possession of prisoners of war. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. Prisoners of war are entitled in all circumstances to respect for their persons and their honour. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions. nor any other form of coercion. Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. No physical or mental torture. shall be handed over to the medical service. Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. In such cases. equivalent information. No prisoner of war shall be compelled to accept liberty on parole or promise. The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health. prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary. Except in particular cases which are justified by the interest of the prisoners themselves. owing to their physical or mental condition. is bound to give only his surname. insulted. Prisoners of war who are paroled or who have given their promise in conformity with the laws and regulations so notified. when questioned on the subject. rank. regimental. each Party to the conflict shall notify the adverse Party of the laws and regulations allowing or forbidding its own nationals to accept liberty on parole or promise. Such measures shall be taken particularly in cases where this may contribute to the improvement of their state of health. both towards the Power on which they depend and towards the Power which has captured them. in so far as is allowed by the laws of the Power on which they depend. as well. Art 14. Every prisoner of war. furthermore. Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone. The Detaining Power shall supply such documents to prisoners of war who possess none. The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving. or failing this. the Power on which they depend is bound neither to require nor to accept from them any service incompatible with the parole or promise given. Part III. bear the signature or the fingerprints. even if such effects and articles belong to their regulation military equipment. The questioning of prisoners of war shall be carried out in a language which they understand.UP Law B2009 Reviewer (Karichi Edition)   Page 104 of 130 Measures of reprisal against prisoners of war are prohibited. legibly inscribed with the name. Prisoners of war may be partially or wholly released on parole or promise. may be temporarily kept back in a danger zone. The Detaining Power may not restrict the exercise. General Observations Art 21. The identity card shall be shown by the prisoner of war upon demand. Upon the outbreak of hostilities. subject to the provisions of the preceding paragraph. Internment of Prisoners of War Chapter I. to camps situated in an area far enough from the combat zone for them to be out of danger. and date of birth. the engagements of their paroles or promises. If he wilfully infringes this rule. The Detaining Power may withdraw articles of value from prisoners of war only for reasons of security. are unable to state their identity.5 x 10 cm. The identity of such prisoners shall be established by all possible means. and may bear. Beginning of Captivity Art 17. Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war. personal or serial number or equivalent information. Prisoners of war interned in unhealthy areas. Section II. regimental. but may in no case be taken away from him. date of birth. or if the said camp is fenced in. shall be kept in the custody of the Detaining Power and shall be returned in their initial shape to prisoners of war at the end of their captivity. Prisoners of war who refuse to answer may not be threatened. Art 18. Such objects. army. and army. likewise sums taken away in any currency other than that of the Detaining Power and the conversion of which has not been asked for by the owners. may be inflicted on prisoners of war to secure from them information of any kind whatever. with an identity card showing the owner's surname. of the owner. the camp where they are interned.

Such officer shall have in his possession a copy of the present Convention. . and spectacles. Art 42. Prisoners of war may not be prevented from presenting themselves to the medical authorities for examination. The Detaining Power may utilize the labour of prisoners of war who are physically fit. In addition. Uniforms of enemy armed forces captured by the Detaining Power should. even if their repatriation is contemplated in the near future. Furthermore. The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space. Food and Clothing of Prisoners of War Art 25. taking into account their age. and the duration and kind of treatment received. under the direction of his government. Those not so required may ask for other suitable work which shall. Every camp shall have an adequate infirmary where prisoners of war may have the attention they require. Non-commissioned officers who are prisoners of war shall only be required to do supervisory work. The premises provided for the use of prisoners of war individually or collectively. underwear and footwear shall be supplied to prisoners of war in sufficient quantities by the Detaining Power. wherever the nature of the work demands. the additional food in their possession. The basic daily food rations shall be sufficient in quantity. if necessary. if possible. upon request. Prisoners of war suffering from serious disease. The Detaining Power shall be bound to take all sanitary measures necessary to ensure the cleanliness and healthfulness of camps and to prevent epidemics. especially against those who are escaping or attempting to escape. Every prisoner of war camp shall be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power. particularly dentures and other artificial appliances. separate conveniences shall be provided for them. or whose condition necessitates special treatment. The Detaining Power shall supply prisoners of war who work with such additional rations as are necessary for the labour on which they are employed. rank and physical aptitude. and for their. quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies. be set aside for cases of contagious or mental disease. The costs of treatment. and the general installations. shall be borne by the Detaining Power. Prisoners of war shall have the attention. as far as possible. they shall be given the means of preparing. themselves. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health. The detaining authorities shall. be made available to clothe prisoners of war. apart from the baths and showers with which the camps shall be furnished prisoners of war shall be provided with sufficient water and soap for their personal toilet and for washing their personal laundry. they must. Chapter VI. Art 26. Prisoners of war shall. Clothing. Prisoners of war shall have for their use. Chapter II. including those of any apparatus necessary for the maintenance of prisoners of war in good health.UP Law B2009 Reviewer (Karichi Edition)   Page 105 of 130 The Detaining Power shall assemble prisoners of war in camps or camp compounds according to their nationality. however. pending repatriation. be associated with the preparation of their meals. The regular replacement and repair of the above articles shall be assured by the Detaining Power. which shall make allowance for the climate of the region where the prisoners are detained. of their nationality. and with a view particularly to maintaining them in a good state of physical and mental health. facilities and time shall be granted them for that purpose. which shall always be preceded by warnings appropriate to the circumstances. in particular to the blind. language and customs. Chapter III. as well as men. rehabilitation. they may be employed for that purpose in the kitchens. In any camps in which women prisoners of war are accommodated. Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. must salute and show to all officers of the Detaining Power the external marks of respect provided for by the regulations applying in their own forces. Art 30. be found for them. A duplicate of this certificate shall be forwarded to the Central Prisoners of War Agency. shall be entirely protected from dampness and adequately heated and lighted. with the exception of officers. Isolation wards shall. Section III. conveniences which conform to the rules of hygiene and are maintained in a constant state of cleanliness. Collective disciplinary measures affecting food are prohibited. Sufficient drinking water shall be supplied to prisoners of war. sex. for its application. Officer prisoners of war are bound to salute only officers of a higher rank of the Detaining Power. day and night. are accommodated. In any camps in which women prisoners of war. prisoners of war who work shall receive appropriate clothing. Also. must be admitted to any military or civilian medical unit where such treatment can be given. Special facilities shall be afforded for the care to be given to the disabled. provided that such prisoners shall not be separated from prisoners of war belonging to the armed forces with which they were serving at the time of their capture. an official certificate indicating the nature of his illness or injury. as well as appropriate diet. of medical personnel of the Power on which they depend and. All precautions must be taken against the danger of fire. the necessary installations. Hygene and Medical Attention Art 29. salute the camp commander regardless of his rank. bedding and blankets. Quarters. except with their consent. The use of weapons against prisoners of war. Prisoners of war. Labour of Prisoners of War Art 49. separate dormitories shall be provided for them. issue to every prisoner who has undergone treatment. he shall ensure that its provisions are known to the camp staff and the guard and shall be responsible. The use of tobacco shall be permitted. Discipline Art 39. Art 27. so far as possible. a surgical operation or hospital care. shall constitute an extreme measure. in particular between dusk and lights out. preferably. Account shall also be taken of the habitual diet of the prisoners. if suitable for the climate. Adequate premises shall be provided for messing.

the said number shall not be less than two letters and four cards monthly.UP Law B2009 Reviewer (Karichi Edition)   Page 106 of 130 If officers or persons of equivalent status ask for suitable work. no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature. Art 70. (f) public utility services having no military character or purpose. (b) industries connected with the production or the extraction of raw materials. and arts and crafts. and to the Central Prisoners of War Agency provided for in Article 123. in order to draw their attention to any points on which they may have complaints to make regarding their conditions of captivity. the fees being charged against the prisoners of war's accounts with the Detaining Power or paid in the currency at their disposal. No prisoner of war shall be assigned to labour which would be looked upon as humiliating for a member of the Detaining Power's own forces. but they may in no circumstances be compelled to work. Such letters and cards must be conveyed by the most rapid method at the disposal of the Detaining Power. Relations of Prisoners of War With the Exterior Art 69. except in those where there are officers. In camps for officers and persons of equivalent status or in mixed camps. as well as those who are at a great distance from their homes. so far as possible. prisoners of war shall be allowed to exercise their right of complaint. Prisoners of war who have been without news for a long period. the prisoners shall freely elect by secret ballot. in mixed camps. direct. Complaints of Prisoners of War Respecting the Conditions of Captivity Art 78 Prisoners of war shall have the right to make known to the military authorities in whose power they are. their requests regarding the conditions of captivity to which they are subjected. and also in case of vacancies. They shall likewise inform the parties concerned of any subsequent modifications of such measures. his assistants shall be chosen from among the prisoners of war who are not officers and shall be elected by them. Section VI. Immediately upon prisoners of war falling into its power. if possible. every prisoner of war shall be enabled to write direct to his family. Besides work connected with camp administration. in conformity with Article 78. they may be ordered only by the Power on which the prisoners depend. If limitations must be placed on the correspondence addressed to prisoners of war. the correspondence of prisoners of war shall be written in their native language. Art 71. Should the above provisions be infringed. or who are unable to receive news from their next of kin or to give them news by the ordinary postal route. The removal of mines or similar devices shall be considered as dangerous labour. These officers may be elected as prisoners' representatives under the first paragraph of this Article. In camps for officers. or not more than one week after arrival at a camp. shall be permitted to send telegrams. The said cards shall be forwarded as rapidly as possible and may not be delayed in any manner. address and state of health. Immediately upon capture. to the model annexed to the present Convention. they may not give rise to any punishment. they may not be delayed or retained for disciplinary reasons. Relations Between Prisoners of War and the Authorities Chapter I. informing his relatives of his capture. These prisoners' representatives shall be eligible for reelection. installation or maintenance. a card similar. Sacks containing prisoner of war mail must be securely sealed and labelled so as clearly to indicate their contents. machinery and chemical industries. and manufacturing industries. it shall be found for them. Unless he be a volunteer. the Detaining Power shall inform them and the Powers on which they depend. Prisoner of War Representatives Art 79. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each prisoner of war. and must be addressed to offices of destination. prisoners of war may be compelled to do only such work as is included in the following classes: (a) agriculture. (c) transport and handling of stores which are not military in character or purpose. possibly at the request of the Detaining Power. public works and building operations which have no military character or purpose. if they consider it necessary. (e) domestic service. Chapter II. he shall be assisted by one or more advisers chosen by the officers. Officer prisoners of war of the same nationality shall be stationed in labour camps for prisoners of war. . They must be transmitted immediately. exclusive of the capture cards provided for in Article 70. even if it is a transit camp. likewise in case of sickness or transfer to hospital or to another camp. They shall also have the unrestricted right to apply to the representatives of the Protecting Powers either through their prisoners' representative or. The Parties to the conflict may allow correspondence in other languages. Further limitations may be imposed only if the Protecting Power is satisfied that it would be in the interests of the prisoners of war concerned to do so owing to difficulties of translation caused by the Detaining Power's inability to find sufficient qualified linguists to carry out the necessary censorship. Art 52. the Protecting Powers. IIn all places where there are prisoners of war. with the exception of metallurgical. every six months. As a general rule. through the Protecting Power. These requests and complaints shall not be limited nor considered to be a part of the correspondence quota referred to in Article 71. for the purpose of carrying out the camp administration duties for which the prisoners of war are responsible. They shall likewise benefit by this measure in cases of urgency. the International Committee of the Red Cross and any other organization which may assist them. on the one hand. and conforming as closely as possible to the models annexed to the present Convention. of the measures taken to carry out the provisions of the present Section. the senior officer among the prisoners of war shall be recognized as the camp prisoners' representative. prisoners' representatives entrusted with representing them before the military authorities. Section V. (d) commercial business. on the other hand. Art 50. In such a case the assistants to the prisoners' representatives shall be chosen from among those prisoners of war who are not officers. Prisoners of war shall be allowed to send and receive letters and cards. Even if they are recognized to be unfounded. Every representative elected must be approved by the Detaining Power before he has the right to commence his duties. Prisoners' representatives may send periodic reports on the situation in the camps and the needs of the prisoners of war to the representatives of the Protecting Powers.

theft without intention of self-enrichment. A prisoner of war who is recaptured shall be handed over without delay to the competent military authority. (3) Fatigue duties not exceeding two hours daily. Art 100. Failing a choice of an advocate or counsel by . shall have for each section their own prisoners' representative. Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain. been particularly called to the fact that since the accused is not a national of the Detaining Power. even if it is a repeated offence. in accordance with Article 87. second paragraph. The prisoner of war shall be entitled to assistance by one of his prisoner comrades. the benefits of the present Convention. the said ship not being under the control of the last named Power. or of an allied Power. (2) Discontinuance of privileges granted over and above the treatment provided for by the present Convention. In conformity with the principle stated in Article 83. Art 102. Art 91. or of an ally of the said Power. Art 105. and if. the detailed communication provided for in Article 107. If any law. He shall be advised of these rights by the Detaining Power in due time before the trial. A prisoner of war who attempts to escape and is recaptured before having made good his escape in the sense of Article 91 shall be liable only to a disciplinary punishment in respect of this act. the Detaining Power shall be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws. to the services of a competent interpreter. he is not bound to it by any duty of allegiance. No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law. according to their nationality. Art 93. The disciplinary punishments applicable to prisoners of war are the following: (1) A fine which shall not exceed 50 per cent of the advances of pay and working pay which the prisoner of war would otherwise receive under the provisions of Articles 60 and 62 during a period of not more than thirty days. Thus. the drawing up or use of false papers. no proceedings or punishments contrary to the provisions of this Chapter shall be allowed. Art 101. III. No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused. regulations and orders in force in the armed forces of the Detaining Power. The Detaining Power shall deliver to the said Power. on request. language or customs. such as offences against public property. shall occasion disciplinary punishment only. or the wearing of civilian clothing. even if convicted. If the death penalty is pronounced on a prisoner of war. regulations or orders. at an indicated address. in the territorial waters of the Detaining Power. Penal and Disciplinary Sanctions I. and that he is in its power as the result of circumstances independent of his own will. Chapter III. brutal or dangerous to the health of prisoners of war. A prisoner of war shall be subject to the laws. In no case shall disciplinary punishments be inhuman. even if it is a repeated offence. shall not be deemed an aggravating circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offence committed during his escape or attempt to escape. language and customs as the prisoners of war whom he represents. No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel. prisoners of war distributed in different sections of a camp. offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb. Art 92. (3) he has joined a ship flying the flag of the Power on which he depends. Failing a choice by the prisoner of war. General Provisions Art 82. the Protecting Power shall find him an advocate or counsel. Prisoners of war who have made good their escape in the sense of this Article and who are recaptured. furthermore. Escape or attempt to escape. II. in force at the time the said act was committed. it must inform the Protecting Power of the reason for such refusal. (4) Confinement. Juridicial Proceedings Art 99. A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power. the sentence shall not be executed before the expiration of a period of at least six months from the date when the Protecting Power receives. Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power on which the prisoners of war depend. (2) he has left the territory under the control of the Detaining Power. or those of an allied Power. regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable. the provisions of the present Chapter have been observed. and shall have at least one week at its disposal for the purpose. in accordance with the foregoing paragraphs. However.UP Law B2009 Reviewer (Karichi Edition)   Page 107 of 130 Where the Detaining Power refuses to approve a prisoner of war elected by his fellow prisoners of war. to defence by a qualified advocate or counsel of his own choice. Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences which are punishable by the death sentence under the laws of the Detaining Power. whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power. to the calling of witnesses and. The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has. if he deems necessary. a list of persons qualified to present the defence. Art 85. shall not be liable to any punishment in respect of their previous escape. The escape of a prisoner of war shall be deemed to have succeeded when: (1) he has joined the armed forces of the Power on which he depends. Prisoners of war who aid or abet an escape or an attempt to escape shall be liable on this count to disciplinary punishment only. In all cases the prisoners' representative must have the same nationality. Disciplinary Sanctions Art 89. such acts shall entail disciplinary punishments only. The punishment referred to under (3) shall not be applied to officers.

and who belong to the following categories. the will shall be transmitted without . this is held in camera in the interest of State security. If no special agreements are concluded between the Parties to the conflict concerned. The costs of repatriation of prisoners of war shall in all cases be equitably apportioned between the Detaining Power and the Power on which the prisoners depend. such cases shall be settled in accordance with the principles laid down in the Model Agreement concerning direct repatriation and accommodation in neutral countries of wounded and sick prisoners of war and in the Regulations concerning Mixed Medical Commissions annexed to the present Convention. The Parties concerned shall agree between themselves as to the equitable apportionment of the remaining costs of the repatriation. or failing any such agreement. The representatives of the Protecting Power shall be entitled to attend the trial of the case. in particular. the measures adopted shall be brought to the knowledge of the prisoners of war. the Detaining Power shall bear the costs of transport of prisoners of war over its own territory as far as its frontier or its port of embarkation nearest to the territory of the Power on which the prisoners of war depend. unless. but whose mental or physical fitness seems to have been gravely and permanently diminished. (2) Those whose mental or physical powers remain. Direct Repatriation and Accommodation in Neutral Countries Art 109. the Detaining Power shall appoint a competent advocate or counsel to conduct the defence. regardless of number or rank. whose condition requires treatment and whose mental or physical fitness seems to have been gravely diminished. if treatment in a neutral country might increase the prospects of a more certain and speedy recovery. The conditions which prisoners of war accommodated in a neutral country must fulfil in order to permit their repatriation shall be fixed. freely visit the accused and interview him in private. are not likely to recover within one year. as shall likewise their status. may be repatriated against his will during hostilities. He shall have the benefit of these facilities until the term of appeal or petition has expired. (3) Wounded and sick who have recovered. This apportionment shall be carried out on the following basis: (a) If the two Powers are contiguous. by agreement between the Powers concerned. Throughout the duration of hostilities. He may also confer with any witnesses for the defence. shall be communicated to the accused prisoner of war in a language which he understands.UP Law B2009 Reviewer (Karichi Edition)   Page 108 of 130 the prisoner of war or the Protecting Power. In either case. No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this Article. including prisoners of war. In such a case the Detaining Power shall advise the Protecting Power accordingly. The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial. should be repatriated: (1) Those whose state of health has deteriorated so as to fulfil the condition laid down for direct repatriation. The same communication in the same circumstances shall be made to the advocate or counsel conducting the defence on behalf of the prisoner of war. in addition. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so. Subject to the provisions of the third paragraph of this Article. Wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by the legislation of their country of origin. Release and Repatriation of Prisoners of War at the Close of Hostilities Art 118. to make arrangements for the accommodation in neutral countries of the sick and wounded prisoners of war referred to in the second paragraph of the following Article. and in good time before the opening of the trial. each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph. Death of Prisoners of War Art 120. with the cooperation of the neutral Powers concerned. prisoners of war who have been accommodated in a neutral country. conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity. Parties to the conflict are bound to send back to their own country. Parties to the conflict shall endeavour. Section II. Art 110. The following shall be repatriated direct: (1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished. the Power on which the prisoners of war depend shall bear the costs of repatriation from the frontiers of the Detaining Power. (b) If the two Powers are not contiguous. as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power. Particulars of the charge or charges on which the prisoner of war is to be arraigned. Art 106. with a view to the quashing or revising of the sentence or the reopening of the trial. Termination of Captivity Section I. He may. which will take steps to inform the Detaining Power of its requirements in this respect. In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities. as well as the necessary facilities to prepare the defence of the accused. The conclusion of this agreement shall in no circumstances justify any delay in the repatriation of the prisoners of war. exceptionally. to determine the cases of disablement or sickness entailing direct repatriation or accommodation in a neutral country. according to medical opinion. but whose accommodation in a neutral country might remove such a threat. the right of appeal or petition from any sentence pronounced upon him. in accordance with the first paragraph of the following Article. In general. Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. even after treatment. considerably impaired. after death. (2) Wounded and sick who. seriously wounded and seriously sick prisoners of war. The following may be accommodated in a neutral country: (1) Wounded and sick whose recovery may be expected within one year of the date of the wound or the beginning of the illness. is seriously threatened by continued captivity. in all cases. according to medical opinion. Every prisoner of war shall have. in the same manner as the members of the armed forces of the Detaining Power. Section III. Part IV. after having cared for them until they are fit to travel. They may. At the request of the prisoner of war and. (2) Prisoners of war whose mental or physical health.

or any other cause. sex. Bodies may be cremated only for imperative reasons of hygiene. The High Contracting Parties. or of the relief societies provided for in Article 125. (2) The wounded and sick shall be collected and cared for. such as the International Committee of the Red Cross. Art. in case of a conflict or occupation. deceased prisoners of war who depended on the same Power shall be interred in the same place. Convention (IV) relative to the Protection of Civilian Persons in Time of War. which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country. suitably maintained and marked so as to be found at any time. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person. (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court. the fact shall be stated and the reasons given in the death certificate of the deceased. and to transmit it as rapidly as possible to the country of origin of the prisoners of war or to the Power on which they depend. detention. (b) taking of hostages. The detaining authorities shall ensure that prisoners of war who have died in captivity are honourably buried. Responsibility for the care of these graves and for records of any subsequent moves of the bodies shall rest on the Power controlling the territory. Although one of the Powers in conflict may not be a party to the present Convention. mutilation. These provisions shall also apply to the ashes. Lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere shall be transmitted to the Power on which such prisoners of war depended. and also the date and place of death. find themselves. or lists certified by a responsible officer. of all persons who die as prisoners of war shall be forwarded as rapidly as possible to the Prisoner of War Information Bureau established in accordance with Article 122. the date and place of burial and all particulars necessary to identify the graves. establishing identity. the Powers who are parties thereto shall remain bound by it in their mutual relations. on account of the religion of the deceased or in accordance with his express wish to this effect. if it deems necessary. affording all the judicial guarantees which are recognized as indispensable by civilized peoples. WHO ARE THE PARTIES PROTECTED Art. and in particular those whose nationals benefit by the services of the Central Agency. in particular murder of all kinds. 12 August 1949. and that their graves are respected. may offer its services to the Parties to the conflict. in the hands of a Party to the conflict or Occupying Power of which they are not nationals. propose to the Powers concerned the organization of such an Agency. Persons protected by the Convention are those who. Geneva. The burial or cremation of a prisoner of war shall be preceded by a medical examination of the body with a view to confirming death and enabling a report to be made and. Art. 3. each Party to the conflict shall be bound to apply. PART V. at a given moment and in any manner whatsoever. or any other similar criteria. the following provisions: (1) Persons taking no active part in the hostilities. all or part of the other provisions of the present Convention. They shall furthermore be bound by the Convention in relation to the said Power. a certified copy shall be sent to the Central Agency. in the form annexed to the present Convention. where necessary. without any adverse distinction founded on race. all particulars of burials and graves shall be recorded with a Graves Registration Service established by the Detaining Power. The death certificates or certified lists shall show particulars of identity as set out in the third paragraph of Article 17. 2. as a minimum. even if the said occupation meets with no armed resistance. Information Bureaux and Relief Societies for Prisoners of War Art 123. An impartial humanitarian body. if possible according to the rites of the religion to which they belonged. in particular humiliating and degrading treatment. Death certificates. the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. The Fourth Convention . The Parties to the conflict should further endeavour to bring into force. The International Committee of the Red Cross shall. the cause of death. colour.UP Law B2009 Reviewer (Karichi Edition)   Page 109 of 130 delay to the Protecting Power. (c) outrages upon personal dignity. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. It shall receive from the Parties to the conflict all facilities for effecting such transmissions. even if the state of war is not recognized by one of them. 4. religion or faith. The function of the Agency shall be to collect all the information it may obtain through official or private channels respecting prisoners of war. Deceased prisoners of war shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. birth or wealth. cruel treatment and torture. Wherever possible. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. if a Party to the present Convention. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. are requested to give the said Agency the financial aid it may require. A Central Prisoners of War Information Agency shall be created in a neutral country. if the latter accepts and applies the provisions thereof. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. In order that graves may always be found. by means of special agreements. wounds. In addition to the provisions which shall be implemented in peace-time. The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities of the International Committee of the Red Cross. In case of cremation. shall in all circumstances be treated humanely.

Part II. food supply and supervision of the proposed neutralized zone. without any adverse distinction based. Women shall be especially protected against any attack on their honour. The provisions of Part II are. to respect for their persons. 8. The presence of a protected person may not be used to render certain points or areas immune from military operations. religion or political opinion. if such there be. Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949. their honour. The fact that sick or wounded members of the armed forces are nursed in these hospitals. in all appropriate cases. and nationals of a co-belligerent State. Protected persons are entitled. 34. Art. naming. a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. but only if so authorized by the State. and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. if any. while they reside in the zones. Nationals of a neutral State who find themselves in the territory of a belligerent State. shall not be considered to be acts harmful to the enemy. however. 31. however. take the necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to the . 13. in particular. In view of the dangers to which hospitals may be exposed by being close to military objectives. The Parties to the conflict shall take the necessary measures to ensure that children under fifteen. and by the special agreements referred to in the foregoing Article. Part III. shall not be considered as protected persons within the meaning of the present Convention. Art. or any form of indecent assault. Without prejudice to the provisions relating to their state of health. on race.UP Law B2009 Reviewer (Karichi Edition)   Page 110 of 130 Nationals of a State which is not bound by the Convention are not protected by it. When the Parties concerned have agreed upon the geographical position. wider in application. However. their religious convictions and practices. or by some other means. it is recommended that such hospitals be situated as far as possible from such objectives. Protection may. and under due safeguards for the observance of the principles stated in the first paragraph. (b) civilian persons who take no part in hostilities. in all circumstances. may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict. as far as possible. Civilian hospitals organized to give care to the wounded and sick. enforced prostitution. 19. States which are Parties to a conflict shall provide all civilian hospitals with certificates showing that they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would deprive these hospitals of protection in accordance with Article 19. Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. without distinction: (a) wounded and sick combatants or non-combatants. The protection to which civilian hospitals are entitled shall not cease unless they are used to commit. and that their maintenance. or by the Geneva Convention for the Amelioration of the Condition of Wounded. or the presence of small arms and ammunition taken from such combatants and not yet been handed to the proper service. 18. Art. They shall. The agreement shall fix the beginning and the duration of the neutralization of the zone. No physical or moral coercion shall be exercised against protected persons. Status and Treatment of Protected Persons Section I. Art. as defined in Article 13. They shall at all times be humanely treated. and who. the infirm and maternity cases. the exercise of their religion and their education are facilitated in all circumstances. outside their humanitarian duties. be entrusted to persons of a similar cultural tradition. the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war. enemy land.24. without any adverse distinction based. administration. endeavour to arrange for all children under twelve to be identified by the wearing of identity discs. nationality. furthermore. on race. perform no work of a military character. in particular. are not left to their own resources. age and sex. Art. who are orphaned or are separated from their families as a result of the war. 27. General Protection of Populations Against Certain Consequences of War Art. air and naval forces in order to obviate the possibility of any hostile action. a reasonable time limit and after such warning has remained unheeded. in particular against rape. Art. in particular to obtain information from them or from third parties. and their manners and customs. Civilian hospitals shall be marked by means of the emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949. Their education shall. acts harmful to the enemy. 28. or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. Art. 15. and are intended to alleviate the sufferings caused by war. cease only after due warning has been given. propose to the adverse Party to establish. all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are. The taking of hostages is prohibited. The Parties to the conflict shall. in so far as military considerations permit. Art. either direct or through a neutral State or some humanitarian organization. Provisions common to the territories of the parties to the conflict and to occupied territories Art. religion or political opinion. Any Party to the conflict may. their family rights. Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949. in the regions where fighting is taking place. The Parties to the conflict shall facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of the Protecting Power. neutralized zones intended to shelter from the effects of war the following persons. shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. The provisions of Part II cover the whole of the populations of the countries in conflict.

by the provisions concerning aliens in time of peace. acting through the representatives of the Protecting Power. nor seriously damage the property of the occupying forces or administration or the installations used by them. If any such person is refused permission to leave the territory. to maintain the orderly government of the territory. subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. 38. and likewise of the establishments and lines of communication used by them. (5) children under fifteen years. protected persons shall be allowed to exercise their right of complaint in accordance with Article 30. representatives of the Protecting Power shall. Art. 40. Art. as expeditiously as possible. 42. nor a grave collective danger. Section III. clothing and equipment. for such offences. as the result of the occupation of a territory. In the cases mentioned in the two preceding paragraphs. shall be liable to internment or simple imprisonment. and to ensure the security of the Occupying Power. the names of all persons who have been denied permission to leave.UP Law B2009 Reviewer (Karichi Edition)   Page 111 of 130 Section II. The courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period. of the benefits of the present Convention by any change introduced. receive medical attention and hospital treatment to the same extent as the nationals of the State concerned. transport and health of human beings and which is not directly related to the conduct of military operations. the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. All protected persons who may desire to leave the territory at the outset of. the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State. provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began. be furnished with the reasons for refusal of any request for permission to leave the territory and be given. Occupied territories Art. Art. The penal laws of the occupied territory shall remain in force. enjoy the protection of any government. If protected persons are of enemy nationality. sheltering. 47. in principle. If the above provisions are infringed. (2) they shall. unless their departure is contrary to the national interests of the State. they may only be compelled to do work which is normally necessary to ensure the feeding. With the exception of special measures authorized by the present Convention. however. are prohibited. Protected persons who commit an offence which is solely intended to harm the Occupying Power. voluntarily demands internment. nor by any annexation by the latter of the whole or part of the occupied territory. Protected persons who are in occupied territory shall not be deprived. in any case or in any manner whatsoever. 44. or during a conflict. Aliens in the territory of a party to the conflict Art. 68. with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. The Occupying Power may. nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power. In any case. . 35. Art. hours of labour. Art. The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national . Furthermore. as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. of the members and property of the occupying forces or administration. 64. the following rights shall be granted to them: (1) they shall be enabled to receive the individual or collective relief that may be sent to them. pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State concerned. In applying the measures of control mentioned in the present Convention. Upon request. unless reasons of security prevent it. in order to induce them to work for the Occupying Power. the situation of protected persons shall continue to be regulated. Art. refugees who do not. If any person. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice. in particularly by Article 27 and 41 thereof. into the institutions or government of the said territory. The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty against a protected person only in cases where the person is guilty of espionage. he shall be interned by the Power in whose hands he may be. Protected persons may be compelled to work only to the same extent as nationals of the Party to the conflict in whose territory they are. or the persons concerned object. provided the duration of such internment or imprisonment is proportionate to the offence committed. protected persons compelled to work shall have the benefit of the same working conditions and of the same safeguards as national workers in particular as regards wages. he shall be entitled to have refusal reconsidered. be the only measure adopted for depriving protected persons of liberty. and if his situation renders this step necessary. of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons. they shall be authorized to move from that area to the same extent as the nationals of the State concerned. in fact. (4) if they reside in an area particularly exposed to the dangers of war. if their state of health so requires. Those persons permitted to leave may provide themselves with the necessary funds for their journey and take with them a reasonable amount of their effects and articles of personal use. internment or imprisonment shall. previous training and compensation for occupational accidents and diseases. The applications of such persons to leave shall be decided in accordance with regularly established procedures and the decision shall be taken as rapidly as possible. shall be entitled to do so. but which does not constitute an attempt on the life or limb of members of the occupying forces or administration. clothing. (3) they shall be allowed to practise their religion and to receive spiritual assistance from ministers of their faith.

salaries or credits due to the internees shall be made for the repayment of these costs. Chapter III. Such persons shall have the right to receive at least one relief parcel monthly. have sought refuge in the territory of the occupied State. through the intermediary of the Protecting Powers. 80. or of an order denying pardon or reprieve. Maternity cases and internees suffering from serious diseases. They shall. No place other than an internment camp shall be marked as such. No deduction from the allowances. provided always that the Protecting Power is notified of such reduction and is given reasonable time and opportunity to make representations to the competent occupying authorities in respect of such death sentences. in accordance with the provisions of Article 143. Expectant and nursing mothers and children under fifteen years of age. They shall receive the medical attention required by their state of health. shall be given additional food. Proper regard shall be paid to the special treatment due to minors. The Detaining Power shall give the enemy Powers. shall not be arrested. convicted or deported from the occupied territory. . The use of tobacco shall be permitted. however. with the exception of breaches of the laws and customs of war. or during a temporary interruption thereof. according to the law of the occupied State. it shall be provided free of charge to them by the Detaining Power. have the attention of medical personnel of their own nationality. all useful information regarding the geographical location of places of internment. prosecuted. where internees may have the attention they require. Hygiene and Medical Attention Art. Daily food rations for internees shall be sufficient in quantity. Every place of internment shall have an adequate infirmary. The Detaining Power shall provide for the support of those dependent on the internees. Whenever military considerations permit. Sufficient drinking water shall be supplied to internees. Internees who work shall receive additional rations in proportion to the kind of labour which they perform. under the direction of a qualified doctor. In no case shall persons condemned to death be deprived of the right of petition for pardon or reprieve. would have justified extradition in time of peace. Internees shall. Section IV. placed so as to be clearly visible in the daytime from the air.84. if such dependents are without adequate means of support or are unable to earn a living. 90. for preference. or for offences under common law committed before the outbreak of hostilities which. except for offences committed after the outbreak of hostilities. including protective clothing. The Detaining Power shall not set up places of internment in areas particularly exposed to the dangers of war. Art. Places of Internment Art. Women shall be confined in separate quarters and shall be under the direct supervision of women. footwear and change of underwear. Should any internees not have sufficient clothing. internees shall be given all facilities to provide themselves with the necessary clothing. Chapter II. and later on. Parties to the conflict who intern protected persons shall be bound to provide free of charge for their maintenance. and if convicted they shall serve their sentences therein. Account shall also be taken of the customary diet of the internees. and which will be at least equal to those obtaining in prisons in the occupied country. General provisions Art. Internees shall retain their full civil capacity and shall exercise such attendant rights as may be compatible with their status. Regulations for the treatment of internees Chapter I. Workers shall receive suitable working outfits. The six months period of suspension of the death sentence herein prescribed may be reduced in individual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying Power or its forces. They shall also have the right to receive any spiritual assistance which they may require. or whose condition requires special treatment. No death sentence shall be carried out before the expiration of a period of a least six months from the date of receipt by the Protecting Power of the notification of the final judgment confirming such death sentence. account being taken of the climate. Food and Clothing Art. as well as an appropriate diet. agree upon any other system of marking. in proportion to their physiological needs. 76. Protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and of the International Committee of the Red Cross. Art. Chapter IV. Internees shall also be given the means by which they can prepare for themselves any additional food in their possession. Art. Isolation wards shall be set aside for cases of contagious or mental diseases. Nationals of the occupying Power who. In any case. must be admitted to any institution where adequate treatment can be given and shall receive care not inferior to that provided for the general population. before the outbreak of hostilities. a surgical operation or hospital care. 89. The clothing supplied by the Detaining Power to internees and the outward markings placed on their own clothes shall not be ignominious nor expose them to ridicule. be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health. he is not bound to it by any duty of allegiance. Internees shall be accommodated and administered separately from prisoners of war and from persons deprived of liberty for any other reason. Art. 75. prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation. 81. the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence. 91. to procure further supplies if required. 70. Protected persons shall not be arrested. Art. internment camps shall be indicated by the letters IC. quality and variety to keep internees in a good state of health and prevent the development of nutritional deficiencies. 83. whenever the nature of their work so requires. and to grant them also the medical attention required by their state of health. if possible. Art. The Powers concerned may. When taken into custody.UP Law B2009 Reviewer (Karichi Edition)   Page 112 of 130 of the Occupying Power. Protected persons accused of offences shall be detained in the occupied country. and be unable to procure any.

possibly at the request of the Detaining Power. The Detaining Power shall afford internees all facilities to enable them to manage their property. Administration and Discipline Art. 99. of his country and shall be responsible for its application. Art. are prohibited. letters of authority. be given in a language which they understand. or at the latest not more than one week after his arrival in a place of internment. Such letters and cards must be conveyed with reasonable despatch. chosen from the regular military forces or the regular civil administration of the Detaining Power. is prohibited. 113. shall be free of charge to the internee. or shall be in the possession of the Internee Committee. they may not be delayed or retained for disciplinary reasons. 107. If general laws. address and state of health. Art. in a language which they understand. prolonged standing and roll-calls. military drill and manoeuvres. the laws in force in the territory in which they are detained will continue to apply to internees who commit offences during internment. Art. Identification by tattooing or imprinting signs or markings on the body. The said cards shall be forwarded as rapidly as possible and may not be delayed in any way. Art. Chapter VII. particularly in cases of death or serious illness of relatives. powers of attorney. and to the Central Agency provided for by Article 140. they may be ordered only by the Power to which such internees owe allegiance. to the model annexed to the present Convention. The officer in charge of the place of internment must have in his possession a copy of the present Convention in the official language. in particular by allowing them to consult a lawyer. In all cases the Detaining Powers shall facilitate the execution and authentication in due legal form of such documents on behalf of internees. 100. every internee shall be enabled to send direct to his family. or the reduction of food rations. As far as is possible. Art. They shall likewise benefit by this provision in cases which are recognized to be urgent. through the Protecting Power or the Central Agency provided for in Article 140. particularly dentures and other artificial appliances and spectacles. informing his relatives of his detention. whereas the same acts are not punishable when committed by persons who are not internees. The members of the Committee shall be eligible for re-election. if possible. For this purpose. 114.UP Law B2009 Reviewer (Karichi Edition)   Page 113 of 130 Internees may not be prevented from presenting themselves to the medical authorities for examination. If limitations must be placed on the correspondence addressed to internees. or one of the official languages. as well as those who are at a considerable distance from their homes. provided this is not incompatible with the conditions of internment and the law which is applicable. Every order and command addressed to internees individually must. or who find it impossible to receive news from their relatives. Every internee shall be allowed to receive visitors. No internee may be punished more than once for the same act. orders. these shall be drawn up so as to conform as closely as possible to the models annexed to the present Convention. likewise. The staff in control of internees shall be instructed in the provisions of the present Convention and of the administrative measures adopted to ensure its application. in a language which the internees understand. the members of a Committee empowered to represent them before the Detaining and the Protecting Powers. Subject to the provisions of the present Chapter. notices and publications of every kind shall be communicated to the internees and posted inside the places of internment. Penal and Disciplinary Sanctions Art. the International Committee of the Red Cross and any other organization which may assist them. or on the same count. As a rule. and the duration and nature of the treatment given. The disciplinary punishments applicable to internees shall be the following: (1) a fine which shall not exceed 50 per cent of the wages which the internee would otherwise receive under the provisions of Article 95 during a period of not more than thirty days. Chapter IX. The medical authorities of the Detaining Power shall. The Detaining Powers shall provide all reasonable execution facilities for the transmission. issue to every internee who has undergone treatment an official certificate showing the nature of his illness or injury. or any other documents intended for internees or despatched by them. internees' mail shall be written in their own language. and likewise in cases of sickness or transfer to another place of internment or to a hospital. In every place of internment. Art. punishment drill. Relations with the Exterior Art. the said Power may give them permission to leave the place of internment in urgent cases and if circumstances allow. regulations or orders declare acts committed by internees to be punishable. Internees shall be allowed to send and receive letters and cards. shall be allowed to send telegrams. at regular intervals and as frequently as possible. or to give them news by the ordinary postal route. Art. 106. or as otherwise required. including the provision of any apparatus necessary for the maintenance of internees in good health. The disciplinary regime in places of internment shall be consistent with humanitarian principles. Regulations. the said number shall not be less than two letters and four cards monthly. internees shall be permitted to visit their homes in urgent cases. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each internee. A duplicate of this certificate shall be forwarded to the Central Agency provided for in Article 140. of wills. 117. 119. the charges being paid by them in the currency at their disposal. 102. on the other. especially near relatives. In particular. Every place of internment shall be put under the authority of a responsible officer. the internees shall freely elect by secret ballot every six months. such acts shall entail disciplinary punishments only. and shall in no circumstances include regulations imposing on internees any physical exertion dangerous to their health or involving physical or moral victimization. As soon as he is interned. an internment card similar. The reasons for any refusals or dismissals shall be communicated to the Protecting Powers concerned. upon request. . Internees who have been a long time without news. Internees so elected shall enter upon their duties after their election has been approved by the detaining authorities. Treatment. The text of the present Convention and the texts of special agreements concluded under the said Convention shall be posted inside the place of internment. on the one hand. The Parties to the conflict may authorize correspondence in other languages.116. Chaper VIII.

By agreement between the Detaining Power and the Powers concerned. 136. within the shortest possible period. that it is exercised in a place of internment and that it does not entail the abolition of any of the safeguards granted by the present Convention. Each of the Parties to the conflict shall. It shall. Internees who are recaptured after having escaped or when attempting to escape. shall be drawn up in accordance with the procedure relating thereto in force in the territory where the place of internment is situated. The evidence of any witnesses shall be taken. shall be liable only to disciplinary punishment in respect of this act. (4) confinement. A communication on this subject shall be sent immediately to the Protecting Power. The duration of any single punishment shall in no case exceed a maximum of thirty consecutive days. even if it is a repeated offence. upon the close of hostilities or occupation. whether such breaches are connected or not. furthermore. and internees who have been detained for a long time. 131. and marked in such a way that they can always be recognized. An official record of the death. The Parties to the conflict shall. The detaining authorities shall ensure that internees who die while interned are honourably buried. Account shall be taken of the internee's age. to search for dispersed internees. each of the Parties to the conflict shall establish an official Information Bureau responsible for receiving and transmitting information in respect of the protected persons who are in its power. until the completion of the penalty. in connection with the maintenance of the place of internment. the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible. 121. especially in respect of acts committed in connection with an escape. Escape. Such lists shall include all particulars necessary for the identification of the deceased internees. Internees who aid and abet an escape or attempt to escape. Internees in the territory of a Party to the conflict against whom penal proceedings are pending for offences not exclusively subject to disciplinary penalties. or of the occupation of territories. to ensure the return of all internees to their last place of residence. Art. pregnant women and mothers with infants and young children. give its Bureau information of any measure taken by it concerning any protected persons who are kept in custody for more than two weeks. on account of the religion of the deceased or in accordance with his expressed wish to this effect. the repatriation. Deaths of internees shall be certified in every case by a doctor. who are subjected to assigned residence or who are interned. shall be liable on this count to disciplinary punishment only. moreover. committees may be set up after the close of hostilities. Art. in particular children. shall be immediately followed by an official enquiry by the Detaining Power. 129. or to facilitate their repatriation. Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist. may be detained until the close of such proceedings and. the Detaining Power shall forward lists of graves of deceased internees to the Powers on whom deceased internees depended. wounded and sick. Chapter XI. as well as any death the cause of which is unknown. In no case shall disciplinary penalties be inhuman. 133. require its various departments . Art. even if the internee is answerable for several breaches of discipline when his case is dealt with. Upon the outbreak of a conflict and in all cases of occupation. Deaths Art. duly registered. As soon as circumstances permit. 134. The Parties to the conflict shall ensure that the competent authorities exercise leniency in deciding whether punishment inflicted for an offence shall be of a disciplinary or judicial nature. Every death or serious injury of an internee. or attempt to escape. if circumstances require. on condition that such surveillance does not affect the state of their health. even if it is a repeated offence. another internee or any other person. and not later than the close of hostilities. internees punished as a result of escape or attempt to escape. 130. Chapter XIII. the fact shall be stated and the reasons given in the death certificate of the deceased. caused or suspected to have been caused by a sentry. notwithstanding. whether successful or not. The ashes shall be retained for safe-keeping by the detaining authorities and shall be transferred as soon as possible to the next of kin on their request. sex and state of health. Information Bureaux and Central Agency Art. Internment shall cease as soon as possible after the close of hostilities. Deceased internees shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. showing the causes of death and the conditions under which it occurred. The wills of internees shall be received for safe-keeping by the responsible authorities. Repatriation and Accommodation in Neutral Countries Art. Section V. through the Information Bureaux provided for in Article 136. endeavour during the course of hostilities. and a duly certified copy of such record shall be transmitted without delay to the Protecting Power as well as to the Central Agency referred to in Article 140. to conclude agreements for the release. The same shall apply to internees who have been previously sentenced to a punishment depriving them of liberty. and a report including such evidence shall be prepared and forwarded to the said Protecting Power. if possible according to the rites of the religion to which they belonged and that their graves are respected. Art. properly maintained. and a death certificate shall be made out. Art. Art. Release. brutal or dangerous for the health of internees. not exceeding two hours daily. 132. the return to places of residence or the accommodation in a neutral country of certain classes of internees. Article 118. 120. If the enquiry indicates the guilt of one or more persons. as well as the exact location of their graves. shall not be deemed an aggravating circumstance in cases where an internee is prosecuted for offences committed during his escape. may be subjected to special surveillance. The High Contracting Parties shall endeavour. Bodies may be cremated only for imperative reasons of hygiene. paragraph 3. and if the event of the death of an internee his will shall be transmitted without delay to a person whom he has previously designated. In case of cremation.UP Law B2009 Reviewer (Karichi Edition)   Page 114 of 130 (2) discontinuance of privileges granted over and above the treatment provided for by the present Convention (3) fatigue duties.

so far as possible. either direct. 140. Art. repatriations. at least. even if the state of war is not recognized by one of them. The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities of the International Committee of the Red Cross and of the relief Societies described in Article 142. place and date of birth. if necessary. in particular those who have been repatriated or released. y Although one of the Powers in conflict may not be a party to the present Convention. furthermore. Each national Information Bureau shall. y apply to all cases of partial or total occupation of the territory of a High Contracting Party. Art. greatly reduced rates. transfers. The Bureaux shall also reply to all enquiries which may be received regarding protected persons. y apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.UP Law B2009 Reviewer (Karichi Edition)   Page 115 of 130 concerned with such matters to provide the aforesaid Bureau promptly with information concerning all changes pertaining to these protected persons. 137. if the latter accepts and applies the provisions thereof. 141. be responsible for collecting all personal valuables left by protected persons mentioned in Article 136. It shall receive from the Parties to the conflict all reasonable facilities for effecting such transmissions. Such articles shall be sent by the Bureau in sealed packets which shall be accompanied by statements giving clear and full identity particulars of the person to whom the articles belonged. Even in such a case. Likewise. the date. All communications in writing made by any Bureau shall be authenticated by a signature or a seal. PART 1: GENERAL PROVISIONS Preamble: y earnest wish to see peace prevail among peoples y every State has the duty to refrain from the threat or use of force against the sovereignty. The information in respect of each person shall include at least his surname. or. territorial integrity or political independence of any State Scope (Article 1) y In cases not covered by this Protocol or by other international agreements. from the principles of humanity and from dictates of public conscience. Art. and in particular those whose nationals benefit by the services of the Central Agency. the address at which correspondence may be sent to him and the name and address of the person to be informed. 139. y armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination Definitions (Article 2) y Rules of international law applicable in armed conflict" means the rules applicable in armed conflict set forth in international agreements to which the Parties to the conflict are Parties and the generally recognized principles and rules of international law which are applicable to armed conflict y Protecting Power" means a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out 38 For the three Protocols to the Geneva Conventions. or to their relatives. likewise the exemptions provided for in Article 110. place and nature of the action taken with regard to the individual. The function of the Agency shall be to collect all information of the type set forth in Article 136 which it may obtain through official or private channels and to transmit it as rapidly as possible to the countries of origin or of residence of the persons concerned. through the intermediary of the Protecting Powers and likewise through the Central Agency provided for in Article 140. in particular for internees. 138. nationality last residence and distinguishing characteristics. if it deems necessary. The High Contracting Parties. the information may not be withheld from the Central Agency which. The national Information Bureaux and the Central Information Agency shall enjoy free postage for all mail. A Central Information Agency for protected persons. releases. as. 8 June 1977. The information received by the national Bureau and transmitted by it shall be of such a character as to make it possible to identify the protected person exactly and to advise his next of kin quickly. which may be the same as that provided for in Article 123 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. They shall furthermore be bound by the Convention in relation to the said Power. The First Protocol 38 Protocol Additional to the Geneva Conventions of 12 August 1949. exemption from telegraphic charges or. even if the said occupation meets with no armed resistance. or who have escaped or died. propose to the Powers concerned the organization of such an Agency. the Powers who are parties thereto shall remain bound by it in their mutual relations. information regarding the state of health of internees who are seriously ill or seriously wounded shall be supplied regularly and if possible every week. Detailed records shall be maintained of the receipt and despatch of all such valuables. except in cases where such transmissions might be detrimental to the persons whom the said information concerns. and by a complete list of the contents of the parcel. escapes. and further. for example. Art. it shall forward the said valuables to those concerned. . will take the necessary precautions indicated in Article 140. first names. Information Bureaux shall transmit information concerning a protected person unless its transmission might be detrimental to the person concerned or to his or her relatives. the first name of the father and the maiden name of the mother. and relating to the Protection of Victims of International Armed Conflicts (Protocol I). shall be created in a neutral country. through the Central Agency. births and deaths. civilians and combatants remain under the protection and authority of the principles of international law derived from established custom. Art. admittances to hospitals. are requested to give the said Agency the financial aid it may require. thanks to dave romero. Each national Bureau shall immediately forward information concerning protected persons by the most rapid means to the Powers in whose territory they resided. upon being notified of the circumstances. The International Committee of the Red Cross shall.

medical equipment or medical supplies y "Medical transports" means any means of transportation. whether military or civilian. and then only for therapeutic purposes Protection of Medical Units y Medical units shall be respected and protected at all times and shall not be the object of attack (Article 12) y Under no circumstances shall medical units be used in an attempt to shield military objectives from attack (Article 12) y protection to which civilian medical units are entitled shall not cease unless they are used to commit. organized for medical purposes. exclusively to the medical purposes enumerated under e) or to the administration of medical units or to the operation or administration of medical transports. without prejudice to the right of any other impartial humanitarian organization to do likewise. transportation. y "Medical units" means establishments and other units. religious personnel.UP Law B2009 Reviewer (Karichi Edition)   Page 116 of 130 the functions assigned to a Protecting Power under the Conventions and this Protocol y "Substitute" means an organization acting in place of a Protecting Power Protecting Power (Article 5) y duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers y Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict y each Party to the conflict shall without delay designate a Protecting Power y If a Protecting Power has not been designated. because of trauma. who are exclusively engaged in the work of their ministry and attached to the armed forces of a Party to the conflict. permanent or temporary. whether military or civilian. SICK. disease or other physical or mental disorder or disability. that members of the armed forces or other combatants are in the unit for medical reasons (Article 13) Protection of civilian medical and religious personnel (Article 15) y Civilian medical personnel shall be respected and protected y The Occupying Power shall afford civilian medical personnel in occupied territories every assistance to enable them to perform. water or air of the wounded. wealth. SHIPWRECKED Definitions (Article 8) y ͞Wounded" and "sick" mean persons. y "Religious personnel" means military or civilian persons. new-born babies and other persons who may be in need of immediate medical assistance or care. such as the infirm or expectant mothers. whether military or civilian. sex. without any adverse distinction founded on race. y "Medical personnel" means those persons assigned. shall be respected and protected y The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned. that the unit is guarded by a picket or by sentries or by an escort. These terms also cover maternity cases. shipwrecked. or on any other similar criteria. and not yet handed to the proper service. that small arms and ammunition taken from the wounded and sick. shall offer its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent PART 2: WOUNDED. who. red crescent or red lion and sun on a white ground when used for the protection of medical units and transports. Protection of Persons (Article 11) y All the wounded. acts harmful to the enemy (Article 13) y not be considered as acts harmful to the enemy: that the personnel of the unit are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge. even with their consent: physical mutilations. medical personnel. namely the search for. to whichever Party they belong. collection. sick. or medical and religious personnel. whether military or civilian. who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility. religion or belief political or other opinion. language. to medical units or medical transports of a Party to the conflict. or for the prevention of disease. colour. outside their humanitarian function. are in need of medical assistance or care and who refrain from any act of hostility. sick and shipwrecked. are found in the units. medical or scientific experiments. and shall commit no act of violence against them Identification (Article 18) y civilian medical personnel and civilian religious personnel should be recognizable by the distinctive emblem and an identity card certifying their status y a Party to the conflict may authorize the use of distinctive signals to identify medical units and transports Medical Transportation y Medical vehicles shall be respected and protected in the same way as mobile medical units (Article 21) .of the wounded. equipment or supplies Scope (Article 9) y shall apply to all those affected by a situation referred to in Article 1. such as chaplains. provided that they are given voluntarily and without any coercion or inducement. sick and shipwrecked. the International Committee of the Red Cross. y "Medical transportation" means the conveyance by land. birth or other status. to the best of their ability. detained or otherwise deprived of liberty shall not be endangered by any unjustified act or omission y prohibited to carry out on such persons. even if they belong to the adverse Party. sick and shipwrecked. assigned exclusively to medical transportation and under the control of a competent authority of a Party to the conflict y "Medical vehicles" means any medical transports by land y "Medical ships and craft" means any medical transports by water y "Medical aircraft" means any medical transports by air y "Distinctive emblem" means the distinctive emblem of the red cross. national or social origin. by a Party to the conflict. and who refrain from any act of hostility y "Shipwrecked" means persons. their humanitarian functions y Civilian religious personnel shall be respected and protected Role of the civilian population and of aid societies (Article 17) y The civilian population shall respect the wounded. removal of tissue or organs for transplantation y Exceptions to the prohibition: only in the case of donations of blood for transfusion or of skin for grafting. to medical units or medical transports or to civil defense organizations of a Party to the conflict. diagnosis or treatment including first-aid treatment .

UP Law B2009 Reviewer (Karichi Edition)   Page 117 of 130 y Medical ships and craft. signs or signals (Article 38) y prohibited to make use of the distinctive emblem of the United Nations. sick and shipwrecked on board (Article 23) y A clear refusal to obey a command given in accordance with paragraph 2 shall be an act harmful to the enemy (Article 23) y Medical aircraft shall be respected and protected (Article 24) y In and over land areas physically controlled by friendly forces. (Article 31) y In the absence of any agreement and if the home country of such deceased is not willing to arrange at its expense for the maintenance of such gravesites. . The following are examples of such ruses: the use of camouflage. or over areas the physical control of which is not clearly established. to permit inspection in accordance with the following paragraphs. sick and shipwrecked in their charge. (Article 27) y Medical aircraft shall not be used to collect or transmit intelligence data and shall not carry any equipment intended for such purpose (Article 28) y Medical aircraft shall not carry any armament except small arms and ammunition taken from the wounded. sick and shipwrecked on board and not yet handed to the proper service. in the absence of an agreement or in deviation from the terms of an agreement. except as authorized by that Organization (Article 38) y prohibited to make use in an armed conflict of the flags or military emblems. red crescent or red lion and sun or of other emblems. long-term and severe damage to the natural environment (Article 35) y prohibited to kill. either through navigational error or because of an emergency affecting the safety of the flight. That State shall make all reasonable efforts to give the order to land or to alight on water to allow the aircraft time for compliance. decoys. to cause widespread. in either case. before resorting to an attack against the aircraft. (Article 28) y Medical aircraft flying over areas which are physically controlled by an adverse Party. unless it is apparent that he is engaging in a hostile act (Article 42) Armed Forces (Article 43) y armed forces of a Party to a conflict consist of all organized armed forces. Where such an offer has not been accepted the High Contracting Party may. protection under the rules of international law applicable in armed conflict. or in deviation from the terms of. either through navigational error or because of an emergency affecting the safety of the flight. Medical aircraft shall obey any such order. or to take other measures to safeguard its own interests. insignia or uniforms of adverse Parties while engaging in attacks or in order to shield. shall make every effort to identify itself and to inform the adverse Party of the circumstances. each Party to the conflict shall search for the persons who have been reported missing by an adverse Party Dead Persons (Article 34) y The remains of persons who have died for reasons related to occupation or in detention resulting from occupation or hostilities and those or persons not nationals of the country in which they have died as a result of hostilities shall be respected. (Article 30) y Should a medical aircraft. and the gravesites of all such persons shall be respected. injure or capture an adversary by resort to perfidy. may be ordered to land or to alight on water. and they shall obey every such command. order them off. adopt the arrangements laid down in its own laws relating to cemeteries and graves. as appropriate. or may be expected. Such ships and craft may not in any other way be diverted from their medical mission so long as they are needed for the wounded. the respect and protection of medical aircraft of a Party to the conflict is not dependent on any agreement with an adverse Party (Article 25) y A medical aircraft which flies over an area physically controlled by an adverse Party without. with intent to betray that confidence. before resorting to an attack against the aircraft. Combatants and POW Methods and Means of Warfare y prohibited to employ weapons. that Party shall make all reasonable efforts to give the order to land or to alight on water. and. after the expiry of five years from the date of the offer and upon due notice to the home country. fly over the territory of a neutral or other State not a Party to the conflict. insignia or uniforms of neutral or other States not Parties to the conflict (Article 39) y prohibited to make use of the flags or military emblems. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering (Article 35) y prohibited to employ methods or means of warfare which are intended. the High Contracting Party in whose territory the gravesites are situated may offer to facilitate the return of the remains of the deceased to the home country. Part 3: Methods and Means of Warfare. they have the right to participate directly in hostilities. Combatants and POW y Any combatant who falls into the power of an adverse Party shall be a prisoner of war. that is to say. or make them take a certain course. (Article 37) y prohibited to make improper use of the distinctive emblem of the red cross. (Article 44) Missing Persons (Article 33) y As soon as circumstances permit. As soon as such medical aircraft has been recognized by the adverse Party. be respected and protected in the same way as mobile medical units (Article 23) y Any warship on the surface able immediately to enforce its command may order them to stop. maintained and marked. shall constitute perfidy (Article 37) y Ruses of war are not prohibited. or is obliged to accord. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to. to allow the aircraft time for compliance. whether at sea or in other waters. and at the latest from the end of active hostilities. or in and over sea areas not physically controlled by an adverse Party. it shall make every effort to give notice of the flight and to identify itself. favour. groups and units which are under a command responsible to that Party for the conduct or its subordinates y Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains) are combatants. an agreement. mock operations and misinformation. protect or impede military operations (Article 39) y No person parachuting from an aircraft in distress shall be made the object of attack during his descent (Article 42) y person who has parachuted from an aircraft in distress shall be given an opportunity to surrender before being made the object of attack. and such light individual weapons as may be necessary to enable the medical personnel on board to defend themselves and the wounded.

remove or render useless objects indispensable to the survival of the civilian population. be given protections equivalent in all respects to those accorded to prisoners of war (Article 44) y A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war and should any doubt arise as to whether any such person is entitled to the status of prisoner of war. before the beginning of hostilities. livestock. dykes and nuclear electrical generating stations. capture or neutralization. A demilitarized zone is a zone which fulfils the following conditions: all combatants. y In order to facilitate the identification of the objects protected by this article. that person shall be considered to be a civilian (Article 50) y Civilian objects shall not be the object of attack or of reprisals. if such extension is contrary to the terms of this agreement. no hostile use shall be made of fixed military installations or establishments. offers a definite military advantage. In so far as objects are concerned. nevertheless. were considered as stateless persons or refugees under the relevant international instruments accepted by the Parties concerned or under the national legislation of the State of refuge or State of residence shall be protected persons (Article 73) y The High Contracting Parties and the Parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflicts and shall encourage in particular the work of the humanitarian organizations engaged in this task in accordance with the provisions of the Conventions and of this Protocol and in conformity with their respective security regulations. Protection of works and installations containing dangerous forces (Article 56) y Works or installations containing dangerous forces. (Article 57) y Persons who. on behalf of that Party and in territory controlled by an adverse Party. purpose or use make an effective contribution to military action and whose total or partial destruction. Such a locality shall fulfill the following conditions: all combatants. (Article 52) y it is prohibited:to commit any acts of hostility directed against the historic monuments. must have Part 4: Civilian Population y the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives (Article 48) y In case of doubt whether a person is a civilian. y The civilian population as such. no acts of hostility shall be committed by the authorities or by the population. y Attacks against the civilian population or civilians by way of reprisals are prohibited. (Article 74) Protection of Civilian Population (Article 51) y The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. agricultural areas for the production of food-stuffs. such as food-stuffs. (Article 59) y It is prohibited for the Parties to the conflict to extend their military operations to zones on which they have conferred by agreement the status of demilitarized zone. and no activities in support of military operations shall be undertaken. he shall continue to have such status until such time as his status has been determined by a competent tribunal. as well as mobile weapons and mobile military equipment. destroy. the Parties to the conflict may mark them with a special sign consisting of a group of three bright orange circles placed on the same axis Zones under Special Protection y It is prohibited for the Parties to the conflict to attack. location. gathers or attempts to gather information shall not be considered as engaging in espionage if. as well as mobile weapons and mobile military equipment must have been evacuated. then in direct support of military action (Article 54) Protection of the Natural Environment (Article 55) y Care shall be taken in warfare to protect the natural environment against widespread. to use such objects in support of the military effort. namely dams. y The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to . for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party (Article 54) y prohibitions above shall not apply to such of the objects covered by it as are used by an adverse Party: as sustenance solely for the members of its armed forces. even where these objects are military objectives. military objectives are limited to those objects which by their nature. Protection of Civilian Objects y Attacks shall be limited strictly to military objectives. in the circumstances ruling at the time. drinking water installations and supplies and irrigation works. he is in the uniform of his armed forces (Article 46) y A mercenary shall not have the right to be a combatant or a prisoner of war (Article 47) shield military objectives from attacks or to shield military operations. (Article 53) y prohibited to attack. while so acting. long-term and severe damage y Attacks against the natural environment by way of reprisals are prohibited. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. or if not as sustenance. shall not be made the object of attack. to make such objects the object of reprisals. non-defended localities (Article 59) y The appropriate authorities of a Party to the conflict may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party. civilians and civilian objects. works of art or places of worship which constitute the cultural or spiritual heritage of peoples. shall not be the object of attack. by any means whatsoever. crops. as well as individual civilians. but he shall.UP Law B2009 Reviewer (Karichi Edition)   Page 118 of 130 y combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack (Article 44) y A combatant who falls into the power of an adverse Party while failing to distinguish himself from noncombatants shall forfeit his right to be a prisoner of war. (Article 45) y any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy (Article 46) y member of the armed forces of a Party to the conflict who. constant care shall be taken to spare the civilian population. if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. (Article 52) y Starvation of civilians as a method of warfare is prohibited (Article 54) y In the conduct of military operations.

(Article 62) y . assist the relief personnel in carrying out their relief mission. maternity cases and nursing mothers. detained or interned for reasons related to the armed conflict. nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed. the offender shall benefit thereby. (Article 75) y Women shall be the object of special respect and shall be protected in particular against rape. for an offence related to the armed conflict. (Article 76) y To the maximum extent feasible. no acts of hostility shall be committed by the authorities or by the population. (Article 77) y If arrested. the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. they shall refrain from recruiting them into their armed forces. priority shall be given to those persons. (Article 66) y The international distinctive sign of civil defence is an equilateral blue triangle on an orange ground when used for the protection of civil defence organizations. (Article 66) Relief Actions y If the civilian population of any territory under the control of a Party to the conflict. the Parties to the conflict shall endeavor to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants. they shall. (Article 76) y Pregnant women and mothers having dependent infants who are arrested. (i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly. (Article 60) Civil Defense y "Civil defence" means the performance of humanitarian tasks intended to protect the civilian population against the dangers. however. cease only after a warning has been given setting. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest. subject to the agreement of the Parties concerned in such relief actions. except where families are accommodated as family units (Article 77) . are to be accorded privileged treatment or special protection. buildings and matériel are identifiable while they are exclusively devoted to the performance of civil defence tasks. buildings. expectant mothers. no hostile use shall be made of fixed military installations or establishments. (h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure. outside their proper tasks. of hostilities or disasters and also to provide the conditions necessary for its survival (Article 61) y Civilian civil defence organizations and their personnel shall be respected and protected (Article 62) y Occupying Power may disarm civil defence personnel for reasons of security. a reasonable time-limit. and any activity linked to the military effort must have ceased. and after such warning has remained unheeded. (d) anyone charged with an offence is presumed innocent until proved guilty according to law. if. be held in the same place and accommodated as family units. The protection to which civilian civil defence organizations. forced prostitution and any other form of indecent assault. (Article 65) y It shall also not be considered as an act harmful to the enemy that civilian civil defence personnel bear light individual weapons for the purpose of maintaining order or for self-defence (Article 65) y Each Party to the conflict shall endeavour to ensure that its civil defence organizations. whenever appropriate. and to help it to recover from the immediate effects. children shall be held in quarters separate from the quarters of adults. (f) no one shall be compelled to testify against himself or to confess guilt. such as children. provision is made by law for the imposition of a lighter penalty. Protection of Women y Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. their personnel. in cases where families are detained or interned. acts harmful to the enemy. relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken. which include the following: (a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence. (e) anyone charged with an offence shall have the right to be tried in his presence. (b) no one shall be convicted of an offence except on the basis of individual penal responsibility. They shall be under the immediate supervision of women. In the distribution of relief consignments. or have examined. their personnel. (Article 71) Penal Prosecutions (Article 75) y No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure. and (j) a convicted person shall be advised on conviction or his judicial and other remedies and of the time-limits within which they may be exercised. (c) no one shall be accused or convicted of a criminal offence on account or any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed. other than occupied territory. (Article 70) y Each Party in receipt of relief consignments shall. buildings and matériel and for civilian shelters. Nevertheless. shelters and matériel are entitled shall not cease unless they commit or are used to commit. (Article 76) Protection of Children y Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and. under the Fourth Convention or under this Protocol.UP Law B2009 Reviewer (Karichi Edition)   Page 119 of 130 been evacuated. who. detained or interned for reasons related to the armed conflict. in particular. Only in case of imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted. The death penalty for such offences shall not be executed on such women. their personnel. is not adequately provided with supplies. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts. shall have their cases considered with the utmost priority. to the fullest extent practicable. (g) anyone charged with an offence shall have the right to examine. Protection may. after the commission of the offence. whenever possible.

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y The death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed (Article 77) y No Party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, so require. Where the parents or legal guardians can be found, their written consent to such evacuation is required. If these persons cannot be found, the written consent to such evacuation of the persons who by law or custom are primarily responsible for the care of the children is required. Any such evacuation shall be supervised by the Protecting Power in agreement with the Parties concerned, namely, the Party arranging for the evacuation, the Party receiving the children and any Parties whose nationals are being evacuated. In each case, all Parties to the conflict shall take all feasible precautions to avoid endangering the evacuation. (Article 78)

given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives; (e) depriving a person protected by the Conventions or referred to in paragraph 2 of this Article of the rights of fair and regular trial. y grave breaches of these instruments shall be regarded as war crimes International Fact-Finding Commission (Article 90) y a) An International Fact-Finding Commission (hereinafter referred to as "the Commission") consisting of 15 members of high moral standing and acknowledged impartiality shall be established; (b) When not less than 20 High Contracting Parties have agreed to accept the competence of the Commission pursuant to paragraph 2, the depositary shall then, and at intervals of five years thereafter, convene a meeting of representatives of those High Contracting Parties for the purpose of electing the members of the Commission. At the meeting, the representatives shall elect the members of the Commission by secret ballot from a list of persons to which each of those High Contracting Parties may nominate one person; (c) The members of the Commission shall serve in their personal capacity and shall hold office until the election of new members at the ensuing meeting; (d) At the election, the High Contracting Parties shall ensure that the persons to be elected to the Commission individually possess the qualifications required and that, in the Commission as a whole, equitable geographical representation is assured; (e) In the case of a casual vacancy, the Commission itself shall fill the vacancy, having due regard to the provisions of the preceding subparagraphs; (f) The depositary shall make available to the Commission the necessary administrative facilities for the performance of its functions. y The Commission shall be competent to: (i) inquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol; (ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol; (d) In other situations, the Commission shall institute an inquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned; (e) Subject to the foregoing provisions or this paragraph, the provisions of Article 52 of the First Convention, Article 53 of the Second Convention, Article 132 or the Third Convention and Article 149 of the Fourth Convention shall continue to apply to any alleged violation of the Conventions and shall extend to any alleged violation of this Protocol. Responsibility (Article 91) y A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. Denunciation (Article 99) y In case a High Contracting Party should denounce this Protocol, the denunciation shall only take effect one year after receipt of the instrument of denunciation. If, however, on the expiry of that year the denouncing Party is engaged in one of the situations

Protection of Journalists (Article 79) y Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians y They may obtain an identity card similar to the model in Annex II of this Protocol. This card, which shall be issued by the government of the State of which the Journalist is a national or in whose territory he resides or in which the news medium employing him is located, shall attest to his status as a journalist. Grave Breaches (Article 85) y the following acts shall be regarded as grave breaches of this Protocol, when committed willfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health: (a) making the civilian population or individual civilians the object of attack; (b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a)(iii); (c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a)(iii); (d) making non-defended localities and demilitarized zones the object of attack; (e) making a person the object of attack in the knowledge that he is hors de combat; (f) the perfidious use of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol y the following shall be regarded as grave breaches of this Protocol, when committed willfully and in violation of the Conventions or the Protocol: (a) the transfer by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, y (b) unjustifiable delay in the repatriation of prisoners of war or civilians; (c) practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination; (d) making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been

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referred to in Article I, the denunciation shall not take effect before the end of the armed conflict or occupation and not, in any case, before operations connected with the final release, repatriation or re-establishment of the persons protected by the Convention or this Protocol have been terminated. y The denunciation shall be notified in writing to the depositary, which shall transmit it to all the High Contracting Parties.

The Second Protocol Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. The rules observed in international armed conflicts are also applicable in non-international armed conflicts.

distinctive emblems mentioned in Articles 1 and 2 and their designations, including the perfidious use and the use of any sign or designation constituting an imitation thereof. Notwithstanding the paragraph above, High Contracting Parties may permit prior users of the third Protocol emblem, or of any sign constituting an imitation thereof, to continue such use, provided that the said use shall not be such as would appear, in time of armed conflict, to confer the protection of the Geneva Conventions and, where applicable, the 1977 Additional Protocols, and provided that the rights to such use were acquired before the adoption of this Protocol.

4. FOREIGN INVESTMENTS AND NATURAL RESOURCES
Crash Course In Basic Foreign Investment Law39 A. EXPROPRIATION LAW

The Third Protocol Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005 Distinctive Emblems (Article 2) y This Protocol recognizes an additional distinctive emblem in addition to, and for the same purposes as, the distinctive emblems of the Geneva Conventions. The distinctive emblems shall enjoy equal status. y This additional distinctive emblem, composed of a red frame in the shape of a square on edge on a white ground, shall conform to the illustration in the Annex to this Protocol. This distinctive emblem is referred to in this Protocol as the "third Protocol emblem". Indicative use of the third Protocol emblem (Article 3) y National Societies of those High Contracting Parties which decide to use the third Protocol emblem may, in using the emblem in conformity with relevant national legislation, choose to incorporate within it, for indicative purposes: a) a distinctive emblem recognized by the Geneva Conventions or a combination of these emblems; or b) another emblem which has been in effective use by a High Contracting Party and was the subject of a communication to the other High Contracting Parties and the International Committee of the Red Cross through the depositary prior to the adoption of this Protocol. Who may use the 3 protocol emblem y National societies of high contracting parties (Article 3) y International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies, and their duly authorized personnel (Article 4) y medical services and religious personnel participating in operations under the auspices of the United Nations (Article 5) Prevention and Repression of Misuse (Article 6) y The provisions of the Geneva Conventions and, where applicable, the 1977 Additional Protocols, governing prevention and repression of misuse of the distinctive emblems shall apply equally to the third Protocol emblem. In particular, the High Contracting Parties shall take measures necessary for the prevention and repression, at all times, of any misuse of the
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As one of the most dynamic fields of international commercial law today, foreign investment law has undergone a rapid evolution in state practice within the recent past. There are many centers of controversy within the larger field of foreign investment law, but arguably the most contentious issue remains that of expropriation. The context of international expropriation rules is: the home state (where the investment is located) expropriates the rights of ownership of the investor state (who introduced the investment and to whom such investment belongs) who, as an alien, may rely on international law for the standard of treatment that should be accorded to it. We must remember that expropriation, although recognized as one of the inherent attributes of sovereignty, assumes an international and therefore more complex dimension when exercised against foreign property because (1) the investor state, being a subject of a foreign state, cannot be deemed to have been completely subsumed under the authority and sovereignty of the home state by virtue merely of their contractual relations (2) the relationship of home and investor states are clearly defined under an investment contract which, according to its verbiage, may or may not make reference to international law in cases of conflict, in the former case the ideally absolute exercise of the home state͛s sovereignty becomes limited to a certain extent by the standards of international law. In navigating through the turbulent waters of expropriation rules, one may be guided by the following principles which, to date, may be said to govern foreign investment law: 1. The norm remains to be the harmonization of all sources of legal obligations. One party to an investment contract cannot therefore renege on the duties it voluntarily assumed on the pretext of complying with a duty or exercising a right if the source of such duty or right comes into conflict with the obligations laid down in the investment contract and/ or customary law. The home state is therefore not allowed to unilaterally revoke investment agreements on the basis of its absolute sovereignty over its natural resources, because such exercise of sovereignty must as much as possible be consonant with the duty to comply with obligations validly entered into.

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Thanks to ceejay balisacan for this portion

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If harmonization is not possible, the norm remains to be the expropriability of every property. Although investment contracts must be complied with in good faith, all states recognize the validity of the exercise of a home state of its prerogative to expropriate. The home state can therefore take foreign property, and there are no established absolute exceptions to this rule (meaning there are no cases wherein the home state can be said to be absolutely barred or precluded from expropriating). The only difference lies in the legal consequence of every act of taking, which would depend on whether the taking was lawful or not, or whether the parties expressly provided in the investment contract for the processes to be complied with during such expropriatory acts.

4.

3.

For every act of expropriation, the norm remains to be the compensability of every act of taking. If the home state takes, it is bound to pay. This is the prevailing rule in current state practice and opinion juris. The home state may exercise its prerogative to expropriate, but it cannot do so without compensating the investor state or at least reinstating the status quo ante (meaning the considerations paid for and benefits received under the contract would be restored to the respective parties). The duty to pay compensation may take various forms. It may be (1) a necessary legal consequence of the expropriatory act, as provided expressly in the investment contract (2) a necessary legal consequence of the expropriatory act, in accordance with customary law (3) an alternative form of extinguishment of a legal obligation (instead of performing the obligations under the contract, the home state chooses to reinstate the status quo ante by giving back, as compensation, the consideration for the contract plus other incidental adjustments), or (4) in the form of punitive damages, where the taking was adjudged to be unlawful, in which case the contract may be enforced or, if performance is already impossible, the home state may be required to pay compensation in an amount that would approximate the value of the property taken and the damage caused by the unlawful taking. The fact that compensation must be paid is generally accepted as a norm; the only point of contention is the QUANTUM of such compensation. How much should be paid is often a subject of debate and there is as yet no fixed rule in determining the value of compensation that must be paid. In practice, however, what the home state pays the investor would usually be a matter of negotiation and conditioned upon the financial circumstances of the home state. There are some cases where the norm of compensability is believed to be inapplicable, although such exemptions are found in the writings of publicists and no authoritative decision has yet been rendered recognizing these exemptions as such. The examples are 40 41 the taxing power of the state , regulatory takings , and 42 police powers .

In any case, the norm remains to be enforceability of every international legal obligation, regardless of the source. The investment contract may be primarily the law between the parties. However, by virtue of the fact that investment agreements are often concluded between states or between private entities pursuant to a trade agreement concluded by their respective states, international legal obligations would inevitably come into play. As such, from the time the investor state introduces the foreign property into the home state͛s territory, both would have to be guided by the obligations which both are bound to under international law. As a consequence, the home state cannot be permitted to undertake an expropriation in such manner as to be violative of other international legal obligations like (1) the duty to observe pacta sunt 43 servanda under customary law (2) the duty to accord foreign investors with the international minimum standard 44 of treatment under customary law (3) the duty to expropriate for a public purpose, on a non-discriminatory basis, and with payment of just compensation under customary law45, or (4) the duty to observe elementary rules of contractual relations as embodied in general principles of law relating to contracts46.

In dealing with the issue of expropriation, one must be guided by basic UN texts touching on expropriation:

Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the

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In the process of taxation, the investor state may constructively be deprived of a portion of its property through profits; but since the power of taxation is recognized as plenary in nature, any incidental taking that would result cannot be compensable. 41 In enacting legislations designed to protect the interests of its citizens, the home state may impose certain regulatory measures which, when applied, would have the effect of depriving the investor of a portion of its property. An example of such regulatory measures is the imposition of technical requirements upon a particular industry to comply with environmental

standards. Even if such a measure would effect a deprivation of ownership rights, it is not compensable because regulatory measures are not supposed to take property; they merely impose standards by which such property may be utilized. 42 Police power measures are distinguished form expropriatory acts in that the former assumes a more immediate dimension; in such cases, the taking of property is done to avert or stop a clear and present danger to the public, something which the home state has a duty to prevent. There is therefore a difference between expropriating a factory because the government wants to nationalize the manufacturing industry and abating the operations of the factory because of its harmful emissions. In the latter case, since the taking was done to stop an existing danger and to punish the offending factory owner, no compensation is due. Notice that in both police power and expropriation, a public purpose is being served, but the exercise of police power was done not to pursue a public policy but to exercise a governmental duty to abate nuisances. 43 The Vienna Convention on the Law of Treaties codifies the principle of pacta sunt servanda, and the Vienna Convention is recognized as a codification of international customary norms regarding treaty compliance. 44 Such minimum standard is nothing more than the ³reasonable´ treatment recognized by all nations viewed from the perspective of an objective third party observer. The minimum standard is embodied in most investment treaties in force today, and was enunciated by the General Claims Commission constituted by the US and Mexico in the Neer Claim. 45 These three requirements can be found in almost all investment treaties in force and can therefore be argued as constituting internationally recognized norms relating to the validity of expropriatory acts. 46 These general principles of law recognized by all civilized nations pertain to such commonly-held notions as good faith, non-unilateral abrogation without reinstatement of the status quo ante, and unjust enrichment. These principles are found in all established legal systems and are, in some instances, codified categorically as articulating general principles of law, like in the case of the ³Principles of International Commercial Contracts´ codified by the International Institute for the Unification of Private Law.

the ͞Charter͟ has not attained the status of custom because developed states have effectively mounted a resistance to the clause which does not require a ͞public purpose͟ precondition to expropriation. (ARTICLE 2. the expropriation was deemed to have been contrary to the stabilization clause of an internationalized contract. In December 7 of 1971 Libya passed the BP Nationalization Law. (ARTICLE 4) Foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith. 30 1971. Specifically. however. The contention centers on two clauses in the concession contract: (1) the ͞stabilization clause͟ which provides that ͞the contractual rights expressly created by this concession shall not be altered except by mutual consent of the parties͟ and (2) the ͞governing law͟ clause which provides that ͞ the concession shall be governed by and interpreted in accordance with . taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. therefore. Libya ͞The home state may expropriate if it wants to. ---United Nations Resolution on Permanent Sovereignty over Natural Resources Adopted by the United Nations General Assembly. The law was passed in reaction to Britain͛s failure to act on the Iranian occupation of its three protectorate islands in the Gulf. 29th Sess. unless it is freely and mutually agreed by all States concerned that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means. the latter requiring adequate and stable protections as an inducement to risk-averse foreign investors. i. because the same law also recognizes the power of a state to commit itself internationally. if a state bound itself to a contract which is international in character and burdened with stabilization clauses. States and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in accordance with the Charter and the principles set forth in the present resolution. which allowed BP to operate in Libya for the extraction. Dupuy states that ͞the recognition by international law of the right to nationalize is not sufficient ground to empower the state to disregard its commitments. processing and export of petroleum. Since. 3281(xxix). it has an area of over 8. even under wrongful circumstances.. restoring to the State ownership of all properties. the Government of Iran occupied 3 Islands in the Gulf (Abu Musa. the investor state cannot compel the home state to continue performing the latter͛s obligations. has to be measured against international standards. expropriate or transfer ownership of foreign property. and then transferring these to a new company. 2. Supp. the Arabian Gulf Exploration Company. which nationalized the operations of BP in Concession 65.UP Law B2009 Reviewer (Karichi Edition)   Page 123 of 130 State taking such measures in the exercise of its sovereignty and in accordance with international law. the expropriatory act is set aside and Dupuy awarded a remedy of restitutio in integrum ʹ meaning Libya was compelled to perform its obligations under the concession contract. when it does. and were blamed to be the cause of the loss of the Islands. Par. another UN GA Resolution backed by developing countries. Subpar. in this case. a nationalization cannot prevail over an internationalized contract. especially by accepting the inclusion of stabilization clauses in a contract entered into with a foreign private party͙Thus. The formula of developing states. kms. according to him. any disputes arising from the interpretation of the terms of the agreement (including alleged breaches of the stabilization clause) shall be submitted to international arbitration. the stabilization. in the heart of the Sarir desert. but may only claim compensation by way of damages͟ BP Exploration Company (BP) had a contractual agreement with the Government of Libya (Libya). and arbitration clauses of the concession contract are sufficient evidence that the contract has been ͞internationalized͟. C) ---Charter of Economic Rights and Duties of States GA Res. in which case appropriate compensation should be paid by the State adopting such measures. These Islands were still under British protection. and not based on its compatibility with Libyan law. According to sole arbitrator Dupuy. which was to be determined by a committee established by the Minister of Petroleum. to allow Texaco to extract oil. The following survey of case law on expropriation represents the views taken by international tribunals in interpreting the different operative terms of the aforequoted texts: BP v. was simply incompatible with the tendency towards promotion of foreign investment. such state is deemed to have waived its prerogative to expropriate contrary to the terms of such contract. it shall be settled under the domestic law of the nationalizing State and by its tribunals. The same is true with the Declaration on the Establishment of the New International Economic Order. On November 29 and 30 of 1971. did not react to the occupation. containing stabilization clauses͙͟ Therefore. The decision of such a Texaco v. The British.. assets and shares in the operations conducted in the said area. governing law. In any case where the question of compensation gives rise to a controversy. The nationalization law provided that the State should pay compensation to BP. 31 (1974) 50 As Harris notes. though the treaty which provided such protection would last only until Nov. in respect of the international law of contracts.000 sq. Libya decided to nationalize the properties and assets of two American companies which were granted concession contracts to exploit and extract oil. according to Walde. The area in which BP was allowed to operate was called Concession 65. meaning subjected to the standards of international law and taken out of the ambit of domestic law. including such of those principles as may have been applied by international tribunals͟. No. Internationalization of contracts results in the protection of investors against the risks of contractual modification or abrogation resulting from changes in municipal laws or other governmental measures. rights. by the historical inclination towards market liberalism. under the concession contract. UN GAOR. The validity of the actuations of both parties. Further. Libya ͞An ͚internationalized͛ contract with a stabilization clause precludes the exercise of the expropriatory prerogatives of the home state͟ In 1973 and 1974. 14 December 1962 To nationalize. (ARTICLE 8) the principles of the law of Libya common to the principles of international law and in the absence of such common principles then by and in accordance with the general principles of law. which was overridden. and the Greater and Lesser Tumb).e.

(2) Award of damages for loss sustained which would not be covered by restitution in kind or payment in place of it ʹ such are the principles which should serve to determine the amount of compensation due for an act contrary to international law͟. because it is sufficiently vague as to evade exact quantification but sufficiently liberal and inclined towards investors͛ interests as to be adequately justificatory of claims of full compensation (͞full͟ meaning nearly everything ʹ the value of the property. by Libya. it can only be compelled to pay damages. and repudiation of contractual obligations is not a taking. the concessionaire is not entitled to call for specific performance by the Government of the agreement and reinstatement of his contractual rights. it is important to note that the circumstances under which the expropriation took place in this case constitutes one of the first instances where an arbitral court classified state actions as (1) in breach of obligations (2) discriminatory and (3) confiscatory. However. The conclusion is therefore unequivocal ʹ the home state may expropriate when it desires to. but when it does unlawfully. payment of a sum corresponding to the value which a restitution in kind would bear. as far as possible. it would have to pay a large price ʹ either to continue being bound to the obligations under the contract. as in the BP case. the wrongful breach of a contract would entitle the injured party to terminate the contract at its option. The arbitrator first disposed of the issue of (1) whether or not the alleged injured party to a concession agreement has the right to deem the contract as valid and enforceable even after the alleged wrongful expropriation and (2) whether or not the injured party may claim reparations in the form of specific performance/ restitutio in integrum. The wrongfulness of the expropriatory act is important to establish because this would determine the quantum of compensation that would be awarded to the injured party. (1) Restitution in kind. This pronouncement is important because it recognizes the almost plenary power of the home state to expropriate ʹ that the home state cannot be precluded under international law to expropriate when it wishes to. The oft-quoted portion of the decision is: ͞The BP Nationalization Law.is that reparation must. the arbitrator then turns to international law. However. or be liable for damages. It is often invoked by investor states to justify their claims of compensation. no action on compensation was taken until February 13. at the most. and damages). the contract should be deemed as valid and binding and it can compel the other party to continue performing its obligations under it. damages were awarded by the arbitrator. asking its remarks and viewpoints on the matter of compensation. please refer to earlier reference under ͞Sources of International Law͟. The arbitrator stated that under international law. Chorzow Factory Case ͞The home state may expropriate. The Arabian Gulf Exploration Company had taken over Concession 65. constitute a fundamental breach of the BP Concession as they amount to a total repudiation of the agreement and obligations of Libya under such agreement. for purposes of this section. contrary to subsequent arbitral decisions precluding the propriety of any such remedial award. As a result of the Nationalization Law (which was rapidly implemented) BP͛s operations in Concession 65 were brought to a complete halt and its staff were immediately excluded from the premises and facilities. the arbitrator declared. and therefore classified as wrongful under international law. wipe-out all the consequences of the illegal act and re-establish the situation which would. and of course. Finding no concurrence between Libyan and international law regarding the declarations sought to be obtained by BP. within the meaning of expropriation law͟ . or both͟ For facts of the case. The Chorzow Standard provides: ͞The essential principle contained in the actual notion of an illegal act .a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals . although investor states do settle in time to mere payment of compensation. that the Chorzow Standard does contemplate restitutio in integrum as a remedy for unlawful expropriations. A three man committee was formed but it was only in September of that year that BP received communication from the committee.͟ (3) ͞Contractual rights are not property. and to be communicated to the Petroleum Minister. it never hurts to have the Chorzow Standard as the starting point of every negotiation as far as the investor state is concerned. in all probability. The Concession contract in this case contains the same governing law clause as that in the case of Texaco above ʹ that Libyan law would be applicable only to the extent that it coincides with international law. the same conclusions as above were inevitable ʹ no support for the claim that the injured party may deem the contract as continuing to be valid and that restitutio in integrum is proper. It was also confiscatory as no offer of compensation was made in two years͟. The continuing validity of this assertion is still a matter of debate. Libya͛s taking of BP͛s property. and actions taken thereunder. or if this is not possible. Note. forgone profits. and even if such expropriation is done in breach of the contract. however. but his sole remedy is an action for damages͟. The bases for this ruling are rules of applicable systems of law too elementary and voluminous to require or permit citation. to admit no appeal. it is important to recall that the expropriation undertaken by Poland against German interests in this case was made in violation of a treaty. Libya (1) ͞Sovereign immunity is waived if the home state consents to litigate arbitral claims anywhere in the world͟ (2) ͞Acts of state cannot be passed upon in judgment by any foreign tribunal. future profits. committed profits. such situation. The right to deem the contract as continuing to be binding and the consequent right to demand restitutio in integrum is therefore not available to BP under international law. according to the arbitrator. The oft-quoted portion of the decision is now known as the ͞Chorzow Standard͟ in international law. 1972.UP Law B2009 Reviewer (Karichi Edition)   Page 124 of 130 committee was to be final. have existed if that act had not been committed. the home state can still not be entitled to reinstate the operability of the contract. Until and unless such injured party elects to do so. However. rights and interests clearly violate Public International Law as it was made for purely extraneous political reasons and was arbitrary and discriminatory (as other concessions have not been touched). However. does not find application in a case where the other (expropriating) party is a sovereign state. incidental expenses. The all-important portion of the decision which applies to all expropriation cases involving a sovereign state is: ͞when by exercise of sovereign power a State committed a fundamental breach of a concession agreement by repudiating it through a nationalization of the enterprise and its assets in a manner which implies finality. Under international law. Further. Liamco v. who will then inform BP about it within 30 days of issuance. In this case. This case is often quoted in expropriation cases because it provides for the quantum of compensation required to be paid in cases of wrongful takings by the home state.

based upon (or traced though) a confiscation or other taking after January 1. no expropriation took place because. In January 1980. renders a taking lawful under international law. Instead it mounts a two pronged defense arguing first that the Court is without jurisdiction. Under American law. the unsatisfactory quantum of such compensation on the part of the investor would not render the taking unlawful͟ In 1973 and 1974 Libya nationalized both LIAMCO's rights under the concessions and certain of its oil drilling equipment. technically speaking. it has acquired jurisdiction over Libya notwithstanding its supposedly immune status as a state because of the arbitration clause (which provides that ͞arbitration should take place either where the parties agreed. or ͞act tantamount or equivalent to expropriation͟. In bringing the suit. as in this case. . It does not mean that the court before which a case is brought can be deprived of jurisdiction properly acquired. refused to participate in the Geneva proceedings. by reason of foreign policy. it held that the arbitration clause of the concession contract between LIAMCO and Libya is sufficient to bring disputes arising under it within the ambit of international law. Secondly. or LIAMCO cases. all other points of issue may be litigated except whether or not the home state is justified in expropriating. Iran placed Shah Goli under control of a temporary manager. operating through Shah Goli. no law was passed by Iran expropriating the assets of Starett. in departure from the LIAMCO view. In short. Under this consideration. maintaining that the nationalization superseded the concessions altogether. It only means that in litigating a claim. arguing that Libya is not immune under the Foreign Sovereign Immunities Act (FSIA). by an act of that state in violation of the principles of international law. an Iranian subsidiary company. to preclude American courts from doing so. Upon doing so. Iran effectively has taken the property rights of Starett in the housing project and deprived it of its reasonable expectations as an investor. all the parties to the dispute. any act that would result in the deprivation of ownership rights and therefore effect an indirect or virtual taking would be classified as expropriation nonetheless͟ (2) ͞Expropriation does not need the physical taking of property to be deemed as such. particularly the Hickenlooper Amendment to 48 the Foreign Assistance Act . The project was proceeding on schedule when their harassment during the 1979 revolution caused the withdrawal of the American and other foreign personnel working on it. . Starett͛s co-venturer. and the ͞violative of international law͟ requisite was also not satisfied because (2) a taking is not rendered violative of international law simply because the investor is not satisfied with the amount of compensation the home state is prepared to pay. the concept has been used interchangeably with terms such as ͞virtual expropriation͟. LIAMCO further contends that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention) requires the confirmation of the award. Following unsuccessful negotiations regarding compensation. This. . The Starett Housing case is a landmark case in foreign investment law because it recognized the concept of an ͞indirect expropriation͟. acts of state may be passed upon if such would amount to a confiscatory taking violative of international law and the President of the United States does not exercise his prerogative. BP. and the courts of one country will not sit in judgment on the acts of the government of another. that even should the Court find jurisdiction. In this case. LIAMCO rejected the terms of the nationalization and initiated proceedings under the arbitration clause. First.UP Law B2009 Reviewer (Karichi Edition)   Page 125 of 130 (4) ͞Compensability. suggests otherwise. As such. Second. the taking is lawful. for foreign policy reasons. contractual rights are deemed to be property for purposes of expropriation law. LIAMCO invokes the jurisdiction of the Court pursuant to American Law on ͞Actions Against Foreign States͟. would take it as a given that an act of state is valid and legitimate. the tribunal recognized that. The doctrine of the case is that ͞measures of expropriation or taking.͟ In this case such manner of interference was committed by the Iranian government when it undertook acts leading to the bankruptcy and placement under receivership of Shah Goli. LIAMCO. Starett files a suit for compensation.´ 48 The Hickenlooper Amendment provides that unless the President. However the tribunal made a pronouncement that ͞it is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated. once satisfied. 1959. In current usage. including the court. brings action to the District Court of the District of Columbia to confirm and enforce such ruling. or where the arbitrators might agree͟) that contemplates arbitration anywhere in the world. as far as American law is concerned. unlike in the Texaco. Libya does not challenge the validity of the underlying award. and made two pronouncements relevant to expropriation law: the ͞taking͟ requirement of the Hickenlooper amendment was not satisfied because (1) contractual rights are not ͞property͟. This case was brought before an American Court not because that is where it will be litigated but because LIAMCO wanted the arbitral decision rendered in Geneva to be confirmed in the United States. as long as there exists a mechanism for compensation within the law of the home state. and second. the District Court dismissed LIAMCO͛s claim as being not justiciable. and the repudiation of contractual obligations not a ͞taking͟. it should refrain from enforcing the award under the Convention because of the act of state doctrine. this case is relevant in expropriation law because it recognizes that measures falling within the ͞act of state͟ doctrine47 cannot be questioned by another foreign state. the Starett case is also significant because. ͞effective expropriation͟. The contractual rights referred to by the Tribunal includes such 47 The doctrine provides that ³Every sovereign state is bound to respect the independence of every other sovereign state. The District Court of the District of Columbia made several pronouncements relevant under international law. have been deemed to comprise also rights of a contractual nature closely related to the physical property͟. coupled with general revolutionary disruption and government intervention (making Shah Goli forgo contractual payments and freezing Shah Goli͛s bank accounts). including the United States. even though the State does not purport to have expropriated them and the legal title to the property formally remains with the original owner. after obtaining a favorable ruling. courts must not decline on the ground of the act of state doctrine to decide the merits of a claim of title or other right to property . within the meaning of the law. entered into an agreement with an Iranian development bank to buy land in Iran and build houses upon it. done within its own territory. Starett Housing Case (1) ͞Expropriation does not need a law to be deemed as such. alleging that the acts of the Iranian government is an expropriation of its property rights under the contract. Starett. any deprivation of ownership rights closely related to the physical property would be classified as expropriation nonetheless͟ In 1974. caused the project to fall behind schedule and Shah Goli to be in financial difficulties. Libya. primarily aimed at physical property.

the Khemco Agreement.͟ particularly Art 17 and Art 11(B). the fact that the entire economic branch to which an enterprise belongs was not expropriated is not necessarily a badge of discriminatory intent͟ (4) ͞A home state is not bound by obligations contracted by private entities within its territories. in sum. Amoco International Finance v.͟ Kuwait. if any. It is enough that the taking be done in pursuance of some public purpose49. The Tribunal also interpreted Arts 17 and 11(B) as not absolutely forbidding nationalization because it impliedly requires that nationalization shall not have a confiscatory character. Kuwait. In contrast with Dupuy͛s arbitral decision in the Texaco case. as a financial venture entered into by the Kuwaiti government for its governmental purposes. was not found to be unlawful.͟ Art 11(B) states that ͞save as aforesaid this Agreement shall not be terminated before the expiration of the period specified͙except by surrender as provided in Article 12 or if the Company shall be in default under the arbitration provisions of Article 18. subject to the submission of any dispute to arbitration͟ (3) ͞Takings may be done in successive stages. an Iranian company controlled by the Iranian government. An expropriation is therefore deemed lawful as long as provision for compensation exists. and therefore any limitations to its exercise cannot be implied. Amoco filed a suit for compensation for the taking of its interests in Khemco. The Tribunal. Iran Sir Roque says: nationalization is not illegal per se but it is illegal if done to escape obligations entered into by the state. a clear duty on the part of the home state must be embodied in the contract͟ Amoco is a Swiss company and a wholly owned subsidiary of Standard Oil. or even let the property lie idle or destroy it ± in any case there would be an expropriation. The only limitations (and not absolute exceptions) to this rule are three-fold: States may pledge not to nationalize but only if: [a] it is for a serious undertaking. according to it. any disagreement over the quantum of which may be submitted for arbitration. and not merely for public utility͟ (2) ͞Compensability is the norm. and if there is no prompt and adequate compensation (includes lucrum cessans). As such. each contracting party having 50% shares in the profits to be realized. and American company. Under the Single Article Act. the process or quantum of compensation is not. Aminoil ͞A home state may not be precluded from expropriating. directed to narrow patrimonial ends. The venture sought to process and sell Iranian natural gas. . and right to proceeds. and the Tribunal merely awarded compensation to Aminoil. the arbitral court in Aminoil expressly reiterates that there is no rule in international law absolutely precluding a home state from expropriating. and that it may be undertaken through a literal taking of a physical asset. Lastly.UP Law B2009 Reviewer (Karichi Edition)   Page 126 of 130 intangible assets as management rights. In 1980. Art 17 states that ͞no alteration shall be made in the terms of this Agreement͙except in the event of the Shaikh and the Company jointly agreeing that it is desirable in the interest of both parties to make certain alterations. a home state may validly waive its expropriatory prerogative only for a limited time (the prohibition against taking cannot be perpetual). invokes the principle of sovereignty over natural resources which. What would make an act of taking unlawful under international law would be the absence of any provision for compensation. Amoco did not avail of this remedy. in defense of its actions. The first doctrine of foreign investment law that was pronounced in Amoco is that the ground for expropriation which was formerly limited to public utility (as expressed in the Chorzow case) has been expanded to the more general term public purpose. The provisions prohibit a nationalization of the oil venture. This principle prohibits States from giving guarantees against the exercise of the public authority over natural resources. It considered that the undertaking (the extraction of oil) was at first. Kuwait v. [b] it is expressly stipulated for. the Tribunal gave due credit to the fact that the act of Kuwait was in pursuance of a legitimate state policy. it became an essential instrument in the economic and social progress of the State. as evidenced by the progressive development of Kuwaiti law with a view to taking an active role in the development of its own resources within its territory. the home state may transfer ownership of the property for the use of a private entity. only upon serious undertakings (other investments of a smaller scale may be expropriated more expeditiously). laid down the doctrine that expropriation may be direct or indirect. the expropriation in this case 49 By this standard. is an imperative rule of jus cogens. and so it cannot be said that the expropriation was unlawful per se because it did not grant compensation in such manner and within such time as to satisfy the investor. However. consideration must be given to whether the investor has been adequately protected by express provisions of the contract relating to compensation. and such limitations must be expressly provided for in the contract͟ Aminoil is an American company which was granted an oil concession by Kuwait. (1) ͞Expropriation may be done for a public purpose. The compensability of an expropriatory act strongly militates against the presumption that the home state can take property without necessary legal consequences in the exercise of its sovereignty. although it may be unsatisfactory to the investor. the case reiterated the doctrine in LIAMCO that a taking satisfies international standards of lawfulness when it provides for a mechanism for the payment of compensation. Secondly. the limitations to the exercise of expropriatory prerogative must be confined only to a limited period covering serious undertakings. [c] it covers a limited period. that is. or through a deprivation of ownership rights closely related to a physical property. an Iranian company jointly owned and managed by Amoco and NPC. by Decree. For any such obligation to arise. Later. Aminoil question the legality of the termination under the ͞stabilization clauses of the contract. In short. was declared null and void by the Iranian government following the 1979 Iranian revolution and the implementation of Iranian legislation (the Single Article Act of 1980) that was intended to complete the nationalization of the Iranian oil industry. and in any case any such limitations must be embodied in the contract. a special commission will be constituted to determine the amount of compensation due to the foreign investor. legitimate investmentbacked expectations in the completion of the venture. which was by its terms valid for 35 years. Amoco entered into a joint venture with NPC. The expropriatory power of the state is the general rule. terminated the agreement before its expiry and transferred the concession assets to itself. In considering the legal consequences of an expropriatory act. It is therefore not needed for the expropriating home state to prove that it wanted to exercise ownership over the property taken for the use of the public. deletions or additions. to form Khemco.

thereby negating the propriety of any award of damages. 1. The Phillips case is significant in that it reiterated the doctrine on indirect expropriation established in the Starett case. As such. or to the expropriated one. Said the Tribunal: ͞Reasons specific to the non-expropriated enterprise. especially with regard to forgone profits and damages. The intent of the government is less important than the effects of the measures on the owner. Phillips v. the important doctrine laid down in this case is that stabilization clauses must be clear in demanding from the home state obligations which the investor state can enforce against it.͟ Also. FREE TRADE 50 The study of foreign investment law would not be complete without delving into one of the most progressive fields of international commerce ʹ free trade. as a rule. The company then sued for recovery of compensation form the Iranian government. Imam Khomeini sparks a revolution in Autumn of 1978 and it succeeds in toppling over the past regime in February 1979. The revolutionary government decides to withdraw all oil contracts with foreign companies under the guise of Nationalization/Anti-western sentiment. it is merely required that the taking amount to a deprivation of ownership rights (2) expropriation must be done with finality and not merely ephemeral (3) the focus must be on the effect and impact of the expropriatory act on the investor and not on the intention of the home state or the manner in which the expropriation is undertaken ʹ this heavy focus on the effect of expropriatory acts on the investor more than the government interest pursued will later be known as the ͞sole effect doctrine͟ in foreign investment law. a coherent policy of nationalization can reasonably be operated gradually in successive stages͟. The Tribunal in the Amoco case did not rule that an expropriation is per se unlawful because it is directed only against a particular entity within a larger industry. however. the Tribunal actually found that there was a discriminatory expropriation because it was undertaken only against BP and not against other similar ventures of other nationalities.UP Law B2009 Reviewer (Karichi Edition)   Page 127 of 130 Thirdly. The ͞irreversibility point͟ refers to that point where the exercise of ownership rights of the investor has already been rendered absolutely impossible by the acts of the home state. Absent such unequivocal stipulation in the contract. Iran (1) ͞Expropriation is any act which would deprive the investor of his ownership rights permanently͟ (2) ͞Focus should be on the effect of the expropriatory act on the investor. The underlying basis for the widespread promotion of liberal market paradigms in the international economy is the proposition that trade." or when it becomes an "irreversible deprivation͟. 2006). no clear obligation was imposed by the concession contract on the Iran government. and that international trade would be more facilitative of development if it were to be undertaken under a regime of progressively decreasing tariffs and strictly enforced mechanisms to safeguard against unfair trade practices. again with the underlying assumption that trade is essentially beneficial. In conclusion. Ultimately. the Phillips case is significant when it comes to determining the reckoning point at which the operative act of expropriation is deemed to have taken place. and such expropriation was classified as a lawful one under international law. as observed by the arbitral tribunal in AMINOIL. the Iranian government cannot be said to have expropriated Amoco͛s property in breach of its obligations because no obligation exists on its part. Furthermore. According to the tribunal: ͞where the taking is through a chain of events. the Tribunal ordered Iran͛s compensation of Amoco as a necessary legal consequence of the taking. and the more unhampered and equal the trade is. This is essential in the computation of compensation. the greater the economic benefits to be reaped and. Countervailing Duties. the greater the level of development that all states can achieve. or to both. The Philippines is arguably the only jurisdiction among all the states signatories to the WTO treaty wherein the legality of the 50 This portion is based on notes from Sir Harry¶s discussion in class and the article ³The Philippines and the WTO: Survey of Current Practices with Emphasis on Anti-Dumping. further qualified the concept of indirect expropriation by pronouncing that (1) expropriation need not be of contractual rights closely related to a physical property. such a conclusion is warranted whenever events demonstrate that the owner was deprived of fundamental rights of ownership and it appears that this deprivation is not merely ephemeral. the taking will not necessarily be found to have occurred at the time of either the first or the last such event. From the Bretton Woods agreement arose discussion groups the members of which agree to conduct international trade under mutually favourable terms using a ͞most favored nation͟ framework. From this discussion groups came the General Agreement on Tariffs and Trade. Said the tribunal: ͞While assumption of control over property by a government does not automatically and immediately justify a conclusion that the property has been taken by the government. The Tribunal in this case recognized that the act of expropriation which is the prerogative of the home state may be undertaken in such manner as to be determined by the home state in pursuance of its policies. thus requiring compensation under international law. and Safeguard Measures´ by Sir Harry published in the Asian Journal of WTO and Health Law and Policy (Vol. the nations of the world came to the agreement that accelerating the recovery of devastated states would entail the promotion of an international mechanism that would facilitate the flow of international capital from those who have it to those who need it most. There was no showing that the contract contained a ͞stabilization clause͟ that would have obligated the Iranian government to insulate the contract from any change in domestic law that would affect the contract͛s operation. is always beneficial. may justify such a difference of treatment. The nonexpropriation of an entire branch of economic activity is not in itself discrimination. the home state cannot be deemed to have been a party to the contract and cannot therefore be held liable under its terms. . Lastly. In this case. Rising from the ashes of World War II. and the form of the measures of control or interference is less important than the reality of their impact. This case. The Bretton Woods regime established from such agreement became the precursor of modernday international free trade. B. absent any evidence of patent bad faith or discriminatory designs. the Amoco case is also instructive with regard to the issue of discriminatory takings. but rather when the interference has deprived the Claimant of fundamental rights of ownership and such deprivation is "not merely ephemeral. ultimately. and not on the intention of the home state͟ (3) ͞The reckoning point of expropriation is that point at which the deprivation of ownership rights becomes irreversible͟ Phillips entered into a Joint Structure Agreement with Iranian Government to exploit oil. In the BP case. the World Trade Organization was born. as the manifestation of the states͛ desire to conduct multilateral trade with a view to establishing an economic order where tariffs are progressively decreased and unfair trade practices are offset by economic enforcement measures.

regardless of the origin. EU) ʹ risk assessment is a prerequisite in the imposition of SPS measures Bananas Case (US v. the Supreme Court has had occasion to declare that (1) the Filipino-First policy purportedly enshrined in the Constitution is just a hortatory provision which cannot be legally enforced as a matter of right without any supporting legislation (2) the Philippines does not adhere to an isolationist economic policy and is in fact accommodative of international trade arrangements that are anchored on the policy of equality and reciprocity (3) the WTO Agreeement constitutes a treaty obligation which the Philippines is bound to perform under the principle of pacta sunt servanda. many contentious controversies have confronted the country primarily in the field of protecting against unfair trade measures of other states. but also made the unsolicited pronouncement of the trade regime͛s wisdom and propriety. as such. As expected. The same tariff dues must be imposed on similar products. (4) to prevent or limit other damages in the territory of member states arising from the introduction. and inefficient and uncompetitive technology. countervailing measures. Cold Rolled Coil Sheets from Taiwan ʹ the injury proven was not causally linked to the dumping measure but a result of such extraneous factors as the Asian Financial Crisis. 6. EU) ʹ quantitative trade preferences are violations of the most favored nation provision of the WTO Agreement. and safeguard measures: (1) anti-dumping measures ʹ there is dumping when the export price of a commodity is less than its normal value in the exporting state. in this case. debt servicing. countervailing measures may be employed by the importing state to make the product reflect its actual value taking into consideration the subsidy that its manufacturers have received. 5. How exactly the arbitration panels and the Appellate Body of the WTO (which were established to rule on disputes between states arising from the interpretation of the Agreement͛s provisions) dealt with cases and disputes arising from the adoption of such economic enforcement measures is also a fertile topic. animal or plant life or health in the territory of member states either from (1) entry . Angara. In addition. is not without issue. In the case of Tanada v. The imposition of these measures. 3. a revenue which otherwise due is forgone. Dumping or unfair subsidy need not be proved to justify resort to these measures. Tuna Case (US). to the product domestically manufactured. it is binding on the Philippines by virtue of the Constitution͛s Incorporation Clause (4) the international free trade regime embodied in the WTO Agreement represents the best possible economic option for the Philippines. considering the prevailing international economic context. and that the product in question is a ͞like product͟. Anti-dumping measures seek to equalize trade in such manner as for the commodity to actually reflect its value from the standards of the exporting state. the measures must be initiated by 25% of an industry affected. the Supreme Court not only solidified the argument that the WTO Agreement is a valid treaty obligation. are subject to the showing of sufficient scientific basis and the undertaking of risk assessment measures. or when a government provides goods and services. Portland Cement Case ʹ the Tariff Commission of the Philippines is independent and its factual findings are given great weight by the Court. contaminant toxin. Brazil) ʹ the application for remedies must follow the process set out in the treaty.UP Law B2009 Reviewer (Karichi Edition)   Page 128 of 130 treaty itself has been pronounced by the highest court of the land. however. 4. Shrimps Case (US). . We must remember that the WTO established not only a policy of progressive lowering of tariffs. or spread of pests or diseases (2) risks arising from additives. Any challenge to the validity of SPS measures must be anchored on the proposition of an available alternative to the measure being challenged that would (1) provide the same or a higher protection than that given by the challenged measure and (2) be less restrictive of trade. Such measures may be undertaken only if it was proven that (1) a dumping exists (2) there was an actual injury to a domestic industry (3) there is a causal link between the dumping and the injury. since the pacta sunt servanda doctrine is part of international law. It is also relevant that one of the recognized valid grounds for the imposition of trade restrictions are the so-called Sanitary and Phytosanitary Standards (SPS) which allows an importing state to impose trade measures to protect human. Desiccated Coconut Case (Philippines v. (3) safeguard measures ʹ safeguard measures are employed when there is a showing of a dramatic increase in the imports of a particular commodity. In such cases. establishment. it being a statement of policy which the Court has no competence to make. establishment or spread of pests. Such measures must be undertaken only after it was proven that (1) a dumping exists (2) there was an actual injury to a domestic industry (3) there is a causal link between the dumping and the injury. In deciding the case the way it did. however. relevant decisions and the essential portions of their rulings interpretative of the Agreement͛s provisions will be considered: 1. The implementation of the WTO Agreement in the country. This last pronouncement of the Court was uncalled for at the very least. 2. Here. therefore. or disease-causing organism. it being enough that surge in imports is proven alongside a serious injury or threat of injury that the former has caused or will cause. These economic enforcement measures are anti-dumping measures. Reformulated and Conventional Gasoline Case (US) ʹ the US must impose trade restrictions that are in conjunction with restrictions on domestic production or consumption and must impose them against not only imported but locally harvested products. Beef Hormones Case (US v. in absolute or relative terms. (3) from a risk arising from a disease or pest carried by an animal or plant. (2) countervailing measures ʹ a subsidy is a financial contribution by a government where there is either a direct fund transfer. the case should have been brought before the GATT and not the WTO because the measures were imposed under GATT. it also put in place certain measures of economic enforcement to ensure that trade between nations are as equal as possible.

UP Law B2009 Reviewer (Karichi Edition)   Page 129 of 130 .

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