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THE NATURE OF INTERNATIONAL LAW Some Dissenters Pragmatic Theory
What is International Law? A body of rules and principles of action which are binding upon civilized states in their relation to one another A law which deals with the conduct of the states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical Scope of International Law a. Regulation of space expeditions b. Division of the ocean floor c. Protection of human rights d. Management of international financial system e. Regulation of the environment f. Preservation of peace Is International Law a Law? Henkin: It is probably the case that almost all nations observe all principles of international law and almost all of their obligations almost all of the time Brierly: The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is reasonable being, to believe that order and not chaos is the governing principle of the world in which he lives Some Theories about International Law Command Theory Austin: Law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed International law is not law because it does not come from a command of a sovereign International law derives its binding force from the consent of states Treaties—expression of consent Custom—voluntary adherence to common practices, is seen as expression of consent Law is derived by reason from the nature of man International law—application of natural reason to the nature of the state-person
Customary law—what are regarded as generally accepted principles of law are in fact an expression of what traditionally was call natural law International law—a combination of politics, morality and self-interest hidden under the smokescreen of legal language International law is law because it is seen as such by states and other subjects of international law
Public International Law v. Private International Law Public International Law Referred to as International Law Governs the relationship between and among states and also their relations with international organizations and individual persons Private International Law Referred to as Conflict of Laws Domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts
SOURCES OF INTERNATIONAL LAW
What Sources are Domestic Laws—found in statute books and in collections of court decisions Classifications of Sources 1. Formal sources—various processes by which rules come into existence a. Legislation b. Treaty making c. Judicial decision making d. Practice of states 2. Material sources—identify what the obligations are a. State practice d. Judicial decisions b. UN Resolutions e. Writings of jurists c. Treaties Art. 38(1) of the Statute of the International Court of Justice 1. International conventions—establishing rules expressly recognized by contesting states 2. International custom—evidence of a general practice accepted as law 3. General principles of law recognized by civilized nations 4. Subsidiary means for determination of rules of law a. Judicial decisions b. Teachings of the most highly qualified publicists
Natural Law Theory
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Public International Law
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Restatement of Foreign Relations Law of the US 1. Customary Law 2. International agreement 3. General principles common to the major legal system Sources of International Law 1. Custom 4. Generally recognized principles of law 2. Treaties 5. Judicial decisions 3. International agreements 6. Teachings of highly qualified publicists Custom or Customary Law A general and consistent practice of states followed by them from a sense of legal obligation Elements: 1. Material factor—how state behaves o Elements of Practice of sates or usus a. Duration—may be either short or long; not the most important element b. Consistency—continuity and repetition c. Generality of the practice of states—uniformity and generality of practice need not be complete but it must be substantial
the law of nations as they result from: usages of civilized people, laws of humanity & public conscience 2. Psychological or subjective factor—why they behave the way they do
Treaties Determine the rights and duties of states just as individual rights are determined by contracts Binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior Treaties and Custom If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law Adherence to treaties can be indicative also of adherence to practice as opinio juris If treaty comes later than a particular custom, treaty should prevail If a later treaty is contrary to a customary rile that has the status of jus cogens, custom will prevail The later custom, being the expression of a later will, should prevail A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law Preemptory norm of general international law = a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character General Principles of Law Recognized by Civilized Nations This has reference to principles of municipal law common to the legal systems of the world Judicial Decisions Decisions of the court have no binding force except between the parties and in respect of that particular case Decisions do not constitute stare decisis Decisions of the ICJ are not only regarded as highly persuasive in international circles but they have also contributed to the formulation of principles that have become international law Teachings of Highly Qualified Writers and “Publicists” Publicists = institutions which write on international law a. The International Commission b. The Institut de Droit International c. International Law Association d. Restatement of Foreign Relations Law of the US e. Annual publication of the Hague Academy of International Law
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Opinio Juris—belief that a certain form of behavior is obligatory Dissenting states: subsequent contrary practice o Dissenting states are bound by custom unless they had consistently objected to it while the custom was merely in the process of formation o It is also possible that after a practice has been accepted as law, contrary practice might arise Evidence of state practice and opinio juris a. Treaties b. Diplomatic correspondence c. Statements of national leaders and political advisers d. Conduct of states Instant Custom o A spontaneous activity of a great number of states supporting a specific line of action The Martens Clause Until a complete code of laws of war has been issued, inhabitants & belligerents are protected under the rule on the principles of
叶清蓮 & DSP
Public International Law
Equity When accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice Where 2 parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party The Court’s recognition of equity as part of international law is in no way restricted by the special power conferred upon it to decide a case ex aequo et bono, if the parties agree thereto Kinds of Equity: 1. Intra legem—within the law; the law is adapted to the facts of the case 2. Praeter legem—beyond the law; used to fill the gaps within the law 3. Contra legem—against the law; refusal to apply the law which is seen as unjust Other Supplementary Evidence 1. UN Resolutions—generally considered merely recommendatory but if they are supported by all the states, they are an expression of opinio juris communis 2. Soft Law—―Non-treaty Agreements‖; international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties o Administrative Rules—guide the practice of states in relation to international organizations CHAPTER 3 THE LAW OF TREATIES e. Protocols f. Concordat g. Modus vivendi
Functions of Treaties a. Sources of international law b. Charter of international organizations c. Used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments Different Kinds of Treaties Multilateral Treaties Open to all states of the world; Create the norms which are the basis for a general rule of law Can either be Codification Treaties or ―Law Making Treaties‖, or both Operate through the organs of the different states 1. Universal scope 2. Regional In the nature of contractual agreements which create shared expectations such as trade agreements of various forms; ―Contract Treaties‖
Treaties that create Collaborative Mechanism Bilateral Treaties
Various names of Treaties a. Conventions c. Covenants b. Pacts d. Charters
1969 Vienna Convention on the Law of Treaties Governs treaties between states Entered into force in January 1980 Definition of Treaties An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation Even oral agreement can be binding, however, only written agreements that are new, come under the provisions of the Vienna Convention Characteristics to make it binding: 1. Commitment was very specific 2. There was a clear intent to be bound
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The Making of Treaties 1. Negotiation—foreign ministries, diplomatic conferences 2. Power to negotiate 3. Authentication of text—signing of the document; so that states will know the contents & avoid misunderstanding 4. Consent to be bound: a. Signature e. Approval b. Exchange of Instruments f. Accession c. Ratification g. Other means if so agreed d. Acceptance 5. Accession to a treaty—states which did not participate in the initial negotiation may express their consent to be bound 6. Reservations—unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State 7. Entry into force of treaties—date agreed or once consent given (but provisional application can also apply) 8. Application of treaties o PACTA SUNT SERVANTA—every treaty in force is BINDING upon the parties and must be PERFORMED by them in GOOD FAITH o A party may NOT INVOKE INTERNAL LAW as justification for its failure to perform a treaty o It is binding upon each party in respect of its entire territory unless a different intention appears in the treaty or is otherwise established 9. Interpretation of Treaties a. Objective approach—interpretation according to the ordinary meaning of the words
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Public International Law
afford the party affected a ground for invoking the termination or suspension of the treaty Procedure for the Termination of Treaties 1. Teleological approach—interpretation according to the telos or purpose of the treaty c. Material Breach a. 33 Authority to Terminate Belongs to the one who has authority to enter into the treaty In the Philippines. at the time of its conclusion. Coercion of a Representative of a State 5. carry out the measure proposed 3. Notify other parties of ground and measure proposed 2. Corruption of a Representative of a State 4. follow Art. Violation of jus cogens—treaty is void if. by all the parties to the treaty Modification—involves only some parties Termination of Treaties Terminated or suspended according to the terms of the treaty or with the consent of the parties 1. may. it conflicts with a preemptory norm of general international law Amendment and Modification of Treaties Amendment—formal revision done with the participation. Municipal law subsumes and is superior to international law B. Fraud—State has been induced to conclude a treaty 3. If there is an objection. If no objection. Monism Dualist or Pluralist Theory *when international and municipal law are in conflict. Coercion of a State by the threat or use of force 6. Doctrine of Incorporation o They become part of the law of the land 叶清蓮 & DSP Public International Law P a g e |4 . under certain conditions. Repudiation of the treaty not sanctioned by the present Convention b. the treaty was in force in respect of the territory to which the succession of state relates CHAPTER 4 Dualism v. Rebus sic stantibus o Resulted in a radical transformation of the extent of the obligations imposed by it.b. Violation of a provision essential to the accomplishment of the object or purpose of the treaty 2. authority to conclude treaties is shared between the Senate and the President Succession to Treaties Clean Slate Rule: newly independent state is not bound to maintain in force or to become a party to any treaty by reason only of the fact that at the date of the succession of states. at least in its initial stage. Supervening Impossibility of Performance o Results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty 3. International law is superior to Domestic Law (supported by Kelsen) As to source INTERNATIONAL LAW AND MUNICIPAL LAW Municipal Law in International Law Follows the dualist tradition and blocks domestic law from entry into the international arena A state which has violated a provision of international law cannot justify itself by recourse to its domestic law A state which has entered into an international agreement must modify its law to make it conform to the agreement International Law in Domestic Law How does international law become part of domestic law for dualists? 1. Municipal law must prevail Monism or Monistic Theory *International and Municipal laws belong to only one system of law Municipal Law International Law Product of local Treaties and custom custom or of grown among states legislation As to Regulates relations Regulates relations relations between individual between states they persons under the regulate state As to their Law of sovereign Law between substance over individuals sovereign states Two theories: A. Subjective approach—honors special meaning given by the parties Invalidity of Treaties 1. Doctrine of Transformation o It must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or Parliament o Treaties do not become part of the law of a state unless it is consented to by the state 2. Error—relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed 2.
Does not involve Establishment of New State—simply involves claims a. or if some of its territory is claimed by another state An entity does not necessarily cease to be a state even if all its territory has been occupied by a foreign power or if it has otherwise lost control of its territory temporarily 3. Capacity to enter into relations with other SOVEREIGNTYindependence from outside control States — Subjects of International Law—entities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane Those with international personality Objects of International Law—those who indirectly have rights under or are beneficiaries of international law through subjects of international law States—predominant actors. should possess the following qualifications: (Montevideo Convention of 1933 on Rights and Duties of States) 1. To be free from external coercion b. Government—that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state It is the National Government that has legal personality and it is such that is internationally responsible for the actions of other agencies and instrumentalities of the state Temporary absence of government does not terminate the existence of a state 4. Defined territory—an entity may satisfy this requirement even if its boundaries have not been finally settled. even if declared unconstitutional. independent of external control. 46 of Vienna Convention = in cases where the constitutional violation was manifest and concerned a rule of its internal law of fundamental importance Manifest = objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith Conflict between International Law and Domestic Law: Municipal Rule Domestic courts are bound to apply the local law Should a conflict arise between an international agreement and the Constitution. 2 of the Constitution: only customary law and treaties which have become part of customary law become part of Philippine law by incorporation Conflict between International Law and Domestic Law: International Rule Before an international tribunal. a state may not plead its own law as an excuse for failure to comply with international law Exception: Art. Sec. permanently occupying a definite portion of territory. 8. and possession an organized government to which the great body of inhabitants render habitual obedience Principle of Self-determination—sovereignty as an element of a state is related but not identical to this principleby virtue of this. the treaty will not lose its character as an international law CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW STATES Commencement of their Existence State. social and cultural development Levels of claim to Self-determination 1. however. the treaty would not be valid and operative as domestic law Art. Of people within an entity to be given autonomy International law has not recognized a right of secession from a legitimately existing state Recognition of States—the act of acknowledging the capacity of an entity to exercise rights belonging to statehood 叶清蓮 & DSP Public International Law P a g e |5 . people freely determine their political status and freely pursue their economic. if one or more of its boundaries are disputed. as a person of international law. Sec. Permanent population—PEOPLEa community of persons sufficient in number and capable of maintain the permanent existence of the community and held together by a common bond of law 2. Establishment of New State—the claim by a group within an established state to break away and form an new entity 2. To overthrow effective rulers and establish a new government—the assertion of the right of revolution c. 5 of the Constitution explicitly recognizes the power of the Supreme Court to declare a treaty unconstitutional. Philippines adheres to the dualist theory and at the same time adopts the incorporation theory and thereby makes international law part of domestic law International law can be used by Philippine courts to settle domestic disputes Art. a community of persons more or less numerous. 2.
Succession to state property—this is subject to agreement between predecessor and successor states 3. Vassal states c. Access to foreign courts and immunity from suit are gained d. Protectorates—dependent states which have control over their internal affairs but whose external affairs are controlled by another state. Successor state assumes all obligations and enjoys all the rights of the predecessor Issues on Succession of States 1. the international agreements of the predecessor state cease to have effect in respect of the territory o Relief from treaty obligation is rebus sic stantibus b. access to them may be suspended Admission of a government to the UN does not mean recognition by all members but only to the extent of the activities of the organization Recognition of a regime is terminated when another regime is recognized Succession of States Views on Succession A. Succession to treaties Moving Treaty Rule / Moving Boundaries Rule—when part of the territory of a state becomes territory of another state. referred to as a. The new state succeeds to no rights or obligations of the predecessor state but begins with a tabula rasa B. Doors of funding agencies are opened b. When a state is absorbed by another state. Right to self-defense c. Uti possidetis Rule—pre-existing boundary and other territorial agreements continue to be binding notwithstanding a. non-interference in each other’s affairs and the principle of equality Some Incomplete Subjects 1. the functions of a state o Restrictions upon a state’s liberty either from customary law or from treaties do not deprive a state of independence o There is duty not to interfere in the internal affairs of other states o Rights flowing from independence: a. Jurisdiction over its territory and permanent population b. Equality—equality of legal rights irrespective of size or power of the state o Within the General Assembly. Succession to contracts—this is subject to agreement between the states concerned o Responsibility for the public debt of the predecessor. Succession to territory—when a state succeeds another state with particular territory. the capacities. Autonomous states b. at least. Right of legation 2. Semi-sovereign d. it accepts such agreements d. Peaceful Co-Existence—mutual respect for each other’s territorial integrity and sovereignty. one vote 3. Fundamental Rights of States 1. Dependent sates P a g e |6 叶清蓮 & DSP Public International Law .Can an entity claim to be a state before it is recognized by other states? Declaratory Theory Constitutive Theory Recognition is merely ―declaratory‖ of Recognition ―constitutes‖ a state the existence of the state Its being a state depends upon its It is what makes a state a state and possession of the required elements confers legal personality on the entity and not upon recognition States may decide to recognize an entity as a state even if it does not have all the elements of a state Recognition of Government—act of acknowledging the capacity of an entity to exercise powers of government of a state If a change in government in an existing state comes about through ordinary constitutional procedure = recognition by others comes as a matter of course Consequence of Recognition or Non-Recognition A government. and rights and obligations under its contracts remain with the predecessor state but is subject to certain exceptions 4. to the exclusion of others. expressly or impliedly. Clean Slate Theory—when part of a state becomes a new state. the new state does not succeed to the international agreements to which the predecessor state was a party unless. once recognized. Loans are facilitated c. the doctrine means one state. mutual non-aggression. Independence—capacity of a state to provide for its own well-being and development free from the domination of other states o Right to exercise within its portion of the globe. international agreements of the absorbed states are terminated c. gains increased prestige and stability a. rights and duties of the predecessor state with respect to that territory terminate and are assumed by the successor state 2. Military and financial assistance also come within reach Absence of formal recognition bars an entity from all these benefits or.
General Assembly—it has plenary power in the sense that it may discuss any question or any matters within the scope of the Charter o GA distinguishes between a. All other matters—requires 9 affirmative votes. including the concurring votes of the permanent members The Charter does not specify what matters are procedural. and the promotion of human rights and fundamental freedoms for all human beings without discrimination UN is enjoined against intervening in matters which are essentially within the domestic jurisdiction of any state International Constitutional Supremacy Clause—in the hierarchy of international organizations. achievement of international cooperation in solving international problems of an economic. Powers conferred on international organizations—normally the subject of an express statement in their constituent instruments but in order to achieve their objectives. their powers and privileges are by no means like those of states since it is limited by the constitutional instrument that created them Advisory Opinion on the Use of Nuclear Weapons International organizations—governed by the Principle of Specialtythey are invested by the States which create them with powers. Immunities—based on the need for the effective exercise of their functions and not from sovereignty These immunities come from the conventional instrument creating them The United Nations: Structure and Powers Came into being on Oct. 6. 1. 叶清蓮 & DSP Public International Law P a g e |7 . o o Security Council—has primary responsibility for the maintenance of international peace and security There are 15 member states. Trusteeship Council—supervises non-self governing territories The Council suspended operations after Palau became independent on Oct. INTERNATIONAL ORGANIZATIONS An organization that is set up by treaty among 2 or more states which have international personality Constituent instruments of international organizations are multilateral treaties. 1994 International Court of Justice (ICJ)—principal judicial organ of the UN o o 3. it has no permanent population CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW 3. 4. social.2. Procedural matters b. 5. Other questions—decided by the majority 2. the limits of which are a function of the common interests whose promotion those States entrust to them. they possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. 24. development of friendly relations among nations. Federal state—a union of previously autonomous entities o The central organ will have personality in international law but the extent of international personality of the component entities can be a problem Mandated and Trust Territories—territories placed by the League of nations under one or other of the victorious allies of WWI o After WWII. to which the well-established rules of treaty interpretation apply Non-governmental organizations (NGO)—set up by private persons Although international organizations have personality in international law. 4. this was replaced by trusteeship system Taiwan—a non-state territory which de jure is part of China The Sovereign Order of Malta—the Italian Court of Cassation in 1935 recognized its international personality The Holy See and Vatican City—recognized under Lateran Treaty. obligations under the UN Charter shall prevail Principal organs of UN: 1. 5 permanent and the others are elected for 2 year terms in accordance with equitable geographic representation Distinguishes between a. the UN occupies a position of preeminence so if there is a conflict with other international agreement. hence. cultural and humanitarian character. decision on whether a matter is procedural or not requires the concurrence of the permanent members Abstention = veto Economic and Social Council (ECOSOC)—has 54 members elected for 3 year terms o 5. 1945 A universal organization charged with peacekeeping responsibilities. Important questions—decided by 2/3 majority of the members voting and present b.
Taking of hostages c. OUTER SPACE Territory in International Law—an area over which a state has effective control Exact boundaries might be uncertain but there should be a definitive core over which sovereignty is exercised Acquisition of territory—acquisition of sovereignty over territory Includes land. Promote economic. maritime areas. United Nations Educational. 1994. however. Laos and Myanmar on July 23.6. cruel treatment and torture b. subject to veto power Other Agencies: 1. Their goal is self-determination—to free themselves from colonial domination. but some treaties have provided for the right of individuals to petition international bodies alleging that a contracting state has violated some of their human rights CHAPTER 7 TERRITORY: LAND. They must exercise such control over a part of its territory as to enable them to carry out sustained and converted military operations and to implement this Protocol Insurgent groups which satisfy the material field of application may be regarded as ―para-statal entities possessing definite if limited form of international personality‖ a. Outrages upon personal dignity. or a racist regime or foreign occupation c. Violence to life and person. World Health Organization (WHO) 4. International Civil Aviation Organization (ICAO) 3. military or political ASEAN—established on Aug. humiliating and degrading treatment d. Safeguard the political and economic stability of the region against big power rivalry c. social and cultural development of the region through cooperative programs b. 1967 in Bangkok. 3 main objectives: a. 1997. Singapore and Thailand Brunei Darrusalam joined on Jan. They must have an organization capable of coming into contract with other international organizations INDIVIDUALS Possess limited rights and obligations (deriving from customary international law) in international law Obligations of individuals are those arising from the regulation of armed conflicts When individual rights are violated. World Bank 6. They are recognized as having belligerent status against the de jure government b. mutilation. 8. Thailand with the signing of the Bangkok Declaration by the 5 original member countries: Indonesia. There is the ultimate goal of controlling a definite territory d. Cambodia in 1999. AIR. 8. Scientific and Cultural Organizations (UNESCO) 2. International Monetary Fund (IMF) Regional Organizations—they are neither organs nor subsidiary organs of UN They are autonomous international organizations having an institutional affiliation with UN by concluding agreements with UN Created by international agreements for the purpose of dealing with regional problems in general or with specific matters be they economic. in particular. Passing of sentences and the carrying out of executions without previous judgment pronounced NATIONAL LIBERATION MOVEMENTS Organized groups fighting in behalf of a whole people for freedom from colonial powers Characteristics: a. 1995. Secretariat—comprises a Secretary General and such staff as the Organization may require o Secretary General—elected to a 5 year term by General Assembly upon the recommendation of the Security Council. They can be based within the territory which they are seeking to liberate or they might find a base in a friendly country b. Armed dissidents must be under responsible command b. airspace and outer space Public International Law P a g e |8 . Food and Agricultural Organization (FAO) 5. individuals still have to rely on the enforcement power of states. Serve as a forum for the resolution of intra-regional differences INSURGENTS Protocol II—first and only international agreement exclusively regulating the conduct of parties in a non-international armed conflict Requirements for Material Field of Application: a. murder of all kinds. Philippines. They are seen as having treaty making capacity 叶清蓮 & DSP Common Article 3—for armed conflict not of an international character Prohibited acts under Article 3: a. Vietnam on July 28. in particular. Malaysia.
Continuous and peaceful display of sovereignty—the Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. THE ISLAND OF PALMAS HELD: Contiguity—US also argued that Palmas was US’ territory because the island was closer to the Philippines than to Indonesia which was then held by the Netherlands East Indies. The arbitrator held that mere proximity was not an adequate claim to land noted that if the international community followed the proposed United States approach. The arbitrator pointed out that if Spain had actually exercised authority. However. where the nearest continent or island of considerable size gives title to the land in dispute. if nomadic. than there would have been conflicts between the two countries but none are provided in the evidence.Modes of Acquisition of Sovereignty over Territory 1. it would lead to arbitrary results. Prescription—requires effective control and the object is not terra nullius o The required length of effective control is longer than in occupation o May be negated by a demonstrated lack of acquiescence by the prior occupant o 4. Western Sahara was inhabited by peoples which. 2. including a requirement of Protestantism and the denial of other nationals on the island. and (b) some actual exercise or display of such authority. In resolving island territorial disputes. The arbitrator noted that the US had failed to show documentation proving Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery. Additionally. Conquest and Subjugation Conquest—taking possession of a territory through armed force It is necessary that the war had ended either by treaty or by indication that all resistance had been abandoned o Now. If another sovereign begins to exercise continuous and actual sovereignty and the discoverer does not contest this claim. the following 3 important rules must be followed: 1. conquest is proscribed by international law o ―No territorial acquisition resulting from the use or threat of force shall be recognized as legal‖ o o Accretion and Avulsion—sovereignty by operation of nature Accretion—gradual increase of territory by the action of nature Avulsion—sudden change resulting for instance from the action of a volcano 5. there was no claim by any Power other than Denmark to the sovereignty of Greenland. o o Cession—acquisition of territory through treaty A treaty of cession which is imposed by a conqueror is invalid 3. it must be accompanied by effective control WESTERN SAHARA CASE HELD: Territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. Discovery and Occupation o Occupation—acquisition of terra nulliusterritory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant o There is abandonment when occupant leave the territory with the intention of not returning o Discovery of terra nullius is not enough to establish sovereignty. The information furnished to the Court shows that at the time of colonization. Title based on contiguity has no standing in international law 2. Another circumstance which must be taken into account is the extent to which the sovereignty is also claimed by some other Power. The arbitrator said there was no positive international law which favored the US’ approach of terra firma. involves 2 elements each of which must be shown to exist: (a) intention and will to act as sovereign. were socially and politically organized into tribes and under chiefs competent to represent them. the claim by the sovereign that exercises authority is greater than a title based on mere discovery EASTERN GREENLAND CASE HELD: A claim to sovereignty based not upon some particular act or title such as treaty or cession but merely upon continued display of authority. the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty. Title by discovery is only an inchoate title 3. One of the peculiar features of the present case is that up to 1931. 叶清蓮 & DSP Public International Law P a g e |9 . there was no evidence that Palmas was a part of the judicial or administrative organization of the Spanish government of the Philippines.
good order or security of the coastal state o Applies to ships. described as territorial sea 2.‖ (1967 Treaty on the Exploration and Use of Outer Space) CHAPTER 8 TERRITORY: LAW OF THE SEA Importance of the Sea 1. except that up to 3% of the total number of baselines enclosing any archipelago may exceed that length up to a maximum length of 125 nautical miles Sovereignty over Territorial Sea – same as sovereignty over its land territory o The sea and the strait are subject to the right of innocent passage by other states Right of Innocent Passage – passage that is not prejudicial to the peace.‖ (Art. beyond its land territory and internal waters and. Normal baseline – one drawn following the low-water line along the coast as marked on large scale charts officially recognized by the coastal State o this line follows the curvatures of the coast and therefore would normally not consist of straight lines 2. customs and police services ―No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise. Straight baseline – drawn connecting selected points on the coast without appreciable departure from the general shape of the coast o Most archipelagic states use straight baselines o Art. aircrafts.Is Contiguity a Mode of Acquisition? It is impossible to show a rule of positive international law to the effect that islands situated outside the territorial waters should belong to a state from the fact that its territory forms part of the terra firma (Las Palmas Case) Intertemporal Law Rules in effect at the time of the acquisition should be applied AIRSPACE Each state has exclusive jurisdiction over the air space above its territory Sovereignty over airspace extends only until where outer space begins Consent for transit must be obtained from the subjacent nation State Aircraft—aircraft used in military. 2 of the 1982 Law of the Sea provides that 1. to an adjacent belt of sea. Medium of communication 2. and submarines 叶清蓮 & DSP Public International Law P a g e | 10 . Sovereignty of a coastal State extends. where the application of the 12-mile rule to neighboring littoral states would result in overlapping the rule is that the dividing line is the median line equidistant from the opposite baselines o Equidistance rule does not apply where historic title or other special circumstances require a different measurement Baselines – the low-water line along the coast as marked on large scale charts officially recognized by the coastal State Two ways of drawing the Baseline: 1. in case of an archipelagic State. Sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law Territorial Sea – belt of sea outwards from the baseline and up to 12 nautical miles beyond o The width of this territorial belt of water is the 12-mile rule o However. 47 of the Convention on the Law of the Sea – the length of such baseline shall not exceed 100 nautical miles. its archipelagic waters. Sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil 3. 3[a] of Chicago Convention on International Civil Aviation) Aircraft must not only not be attacked unless there is reason to suspect that the aircraft is a real threat but also that a warning to land or change course must be given before it is attacked (Lissitzyn) Civilian aircraft should never be attacked OUTERSPACE Outer space. Contain vast natural resources Grotius – elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all o The doctrine recognized as permissible the delineation of a maritime belt by littoral states as an indivisible part of its domain o Maritime belt = territorial sea Convention on the Law of the Sea of 1982 – prevailing law on maritime domain Art. are not susceptible to appropriation by any state ―The Moon and other celestial bodies shall be used by all State Parties to the Treaty exclusively for peaceful purposes. and in accordance with the terms thereof. wherever that might be. and celestial bodies.
fiscal. Overflight – belongs to both civilian and military aircraft c. They must ensure through proper conservation and management measures that the living sources of the EEZ are not subjected to over exploitation 2. surrounded by water. Lay submarine cables and pipelines e. exclusive economic zone and continental shelf o Rocks which cannot sustain human habitation or economic life shall have no exclusive economic zone or continental shelf. immigration or sanitation authority over its territorial waters or territory and to punish such infringement o However. or larger than. beyond that limit. and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation Bays – well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast o Considered as internal waters of a coastal state o Indentation shall not be regarded as bay unless its area is as large as. Seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea. and it may take the necessary steps to prevent passage that it determines to be not innocent Internal Waters – all waters landwards from the baseline of the territory o Coastal states may regulate access to its ports (Nicaragua case) Archipelagic Waters o An archipelagic state may designate sea lanes and air routes thereabove. the power of control given to the littoral state does not change the nature of the waters o Beyond the territorial sea. that of the semi-circle whose diameter is a line drawn across the mouth of that indentation Historic Bays – treated by the costal state as internal waters on the basis of historic rights acknowledge by other states Contiguous Zone – an area of water not exceeding 24 nautical miles from the baseline o It extends 12 nautical miles from the edge of the territorial sea o Coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs. They must promote the objective of ―optimum utilization‖ of the living sources The Continental (Archipelagic) Shelf – refers to the a. and their subsoil. Fishing – includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas d. Seabed and subsoil of areas adjacent to islands The Deep Seabed: “Common Heritage of Mankind” o These are areas of the seabed and ocean floor. seabed and subsoil – but the right does not affect the right of navigation and overflight of other states o The delimitation of the overlapping EEZ between adjacent states is determined by agreement 叶清蓮 & DSP Two Primary Obligations of Coastal States: 1. which lie beyond any national jurisdiction o These are the common heritage of mankind and may not be appropriated by any state or person Islands – naturally formed area of land.o Coastal states have the unilateral right to verify the innocent character of passage. to a depth of 200 meters or. suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea o The concept of the archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines. Construct artificial islands and structures f. which is above water at high tide o Artificial islands or installations are not ―islands‖ o Important due to the possibility of exploiting oil and gas resources around them o Islands can have their own territorial sea. Scientific research Public International Law P a g e | 11 . the waters are high sea and are not subject to the sovereignty of the coastal state Exclusive Economic Zone or “Patrimonial Sea” – an area extending not more than 200 nautical miles beyond the baseline o Coastal state has rights over the economic sources of the sea. Navigation b. but can have a territorial sea The High Seas – all parts of the sea that are not included in the territorial sea or in the internal waters of a state o The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement Six Freedoms which High Seas are subject to: a. to where the depth allows exploitation b.
specific threat to national security P a g e | 12 叶清蓮 & DSP Public International Law .Hot Pursuit o Art. this is strictly construed to those offenses posing a direct. if they had one. and have not acquired a new one b. archipelagic waters. De jure stateless – persons who have lost their nationality. English Rule – crimes perpetrated under such circumstances are in general triable in the courts of the country within whose territory they were committed NATIONALITY PRINCIPLE o This is generally supported in customary law o Every state has jurisdiction over its nationals even when those nationals are outside the state Effective Nationality Link – used to determine which 2 states of which a person is a national will be recognized as having the right to give diplomatic protection to the holder of dual nationality Corporations – state has jurisdiction over corporations organized under its laws Maritime vessels – state has jurisdiction over vessels flying its flag o Same applies to aircraft and spacecraft Stateless Persons – persons who have no nationality a. Objective Territorial Principle – state has jurisdiction to prosecute and punish for crime commenced without the state but consummate within its territory Jurisdiction over Foreign Vessels in Philippine Territory – we follow the English Rule 1. Legislative jurisdiction – prescribe norms of conduct 2. control must also be established (Las Palmas Case) Boundary – separating the land areas of two states is determined by the acts of the states expressing their consent to its location o When the boundary between 2 states is a navigable river its location is the middle of the channel of navigation o When boundary between 2 states is a non-navigable river or lake its location is the middle of the river or lake Effects Doctrine o State also has jurisdiction over acts occurring outside its territory but having effects within it 1. Executive jurisdiction – enforce the norms prescribed 3. Judicial jurisdiction – adjudicate o International law limits itself to criminal rather than civil jurisdiction o Civil jurisdiction is subject for private international law or conflicts of law o Jurisdiction may also be acquired by treaty o However. or any other ships or aircraft properly marked for that purpose Settlement of Disputes o Peaceful settlement is compulsory CHAPTER 9 JURISDICTION OF THE STATES Jurisdiction – authority to affect legal interests o The scope of a state’s jurisdiction over a person. exclusive economic zone. De factor stateless – persons who have a nationality but to whom protection is denied by their state when out of the State PROTECTIVE PRINCIPLE o This is generally supported in customary law o State may exercise jurisdiction over conduct outside its territory that threatens its security as long as that conduct is generally recognized as criminal by states in the international community o However. territorial waters. there are 5 popular principles on jurisdiction TERRITORIALITY PRINCIPLE o This is generally supported in customary law o Fundamental source of jurisdiction is sovereignty over territory o It is necessary that boundaries be determined o To have jurisdiction. thing or event depends on the interest of the state in affecting the subject in question o Corresponding to the powers of the government. 111 allows hot pursuit of a foreign vessel where there is good reason to believe that the ship has violated laws or regulations of a coastal state o This must commence when the foreign vessel is within the internal waters. occupation is not enough. continental shelf or the contiguous zone of the pursuing state o Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own state or of a third state o May be carried out only by warships or military aircraft. Subjective Territorial Principle – a state has jurisdiction to prosecute and punish for crime commenced within the state but completed or consummated abroad 2. French Rule – crimes committed abroad a foreign merchant vessel should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed unless their commission affects the peace and security of the territory 2. jurisdiction can be: 1.
ethical. Crimes against humanity – acts committed as part of a widespread or systematic attack directed against any civilian population 1. require authority in all community members to punish such acts wherever they may occur. Character of the activity to be regulated c. Aircraft piracy f. and. even absent a link between the state and the parties or the acts in question Examples of acts covered by Universality Principle: a. to justify an assertion of extraordinary authority 2. Crime of Apartheid 9. to an act committed outside its territory by a person not its national where the victim of the act was its national o Not accepted for ordinary torts or crimes but is increasingly accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality. Genocide – acts committed with intent to destroy. a violation of the anti-trust law? c. any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention e. Torture 6. Piracy – any illegal act of violence or depredation committed for private ends on the high seas or outside the territorial control of any state b. Enslavement 4. Differences in legal system can be an obstacle to interpretation of what the crime is 3. Terrorism PASSIVE PERSONALITY PRINCIPLE o This does not enjoy wide acceptance o State may apply law. then the court will assume jurisdiction a. universally dangerous to states and their subjects. Persecution 8. Attack directed against any civilian population 2. Extermination – internal infliction of conditions of life 3. Forced pregnancy 7. or to assassination of a state’s diplomatic representatives or other officials CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction 1. namely. in whole or in part. therefore. criminal law. a national. Enforced disappearance of persons d. Was there an actual or intended effect on a state’s foreign commerce? 叶清蓮 & DSP b. War crimes – grave breaches of the Geneva Convention of 12 August 1949. Likelihood of conflict with regulation by another state 3. either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis EXTRADITION – the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime o This is a process that is governed by a treaty o Legal right to demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty o Procedure for extradition is normally through diplomatic channels Principles governing Extradition 1. Religious and political offenses are not extraditable Bail in Extradition Cases o Bail may be granted to a possible extraditee only upon a clear and convincing showing that 1. Link or connection of the activity to the territory of the regulating state b. Balancing Test – if the answer is yes to all the following questions. humanitarian and compelling circumstances Public International Law P a g e | 13 .Examples of acts covered by Protective Principle: a. Plot to break its immigration regulations UNIVERSALITY PRINCIPLE o This recognizes that certain activities. He will not be a flight risk or a danger to the community 2. Forum non conveniens – application is discretionary with the court o If in the whole circumstances of the case it be discovered that there is real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum. vis-à-vis those of other nations. Existence of justified expectations that might be protected or hurt by the regulation d. No state is obliged to extradite unless there is a treaty 2. Is the effect sufficiently large to present a cognizable injury to the plaintiffs. racial or religious group c. International Comity – state will refrain from exercising its jurisdiction is it is unreasonable o Factors to consider in determining unreasonableness: a. Plots to overthrow the government b. Forging its currency c. Are the interests of the state sufficiently strong. There exist special. Deportation or forcible transfer of population 5.
Based on the principle of equality and independence of states: par in parem non habet imperium. d. 叶清蓮 & DSP B. it has become necessary to distinguish them between sovereign and governmental acts. The commission of a crime which is an international crime against humanity and jus cogens cannot be a state function. Luis Reyes (Philippines) A claim of immunity by an American official was rejected when shown to have been committed outside the scope of her authority as well as contrary to law.Applies to both the Head of State and to the State itself Mighell v. Because state activities have multiplied. Hon. Despite the absolute territorial jurisdiction of states. Public International Law P a g e | 14 .The State may not be sued without its consent. British authorities detained Pinochet on an arrest warrant issued by Spanish Magistrate Baltasar Garzon under the charges of genocide. V. The result is that State immunity now extends only to acts jure imperii. one sovereign. . However. being bound to not degrade the dignity of his nation by placing himself within the jurisdiction of another. Pinochet Case: Regina v. though not expressly stipulated. Republic of Czechoslovakia It can no longer be said that by international law. can be supposed to enter into foreign territory in the confidence that the immunities belonging to his independent sovereign station.) Senator Pinochet as a former head of state enjoys immunity rationae materiae in relation to acts done by him in relation to his official function as such. USA v. if torture is treated as official business sufficient to justify the immunity. and private. and torture. In affirming that Pinochet did not enjoy immunity from prosecution as a former head of state and could thus be extradited. In this case. which is a function of the government not utilized nor dedicated to commercial or business purposes.) However. b. The principle of individual responsibility for international criminal conduct has become an accepted part of international law. Despite the fact that it was a private suit. The Schooner Exchange v.) Sovereign immunity 2.) Diplomatic/consular immunity A. * Exceptions: 1. The classic doctrine of immunity arose at a time when there was no justification for any distinction between private transactions and acts of sovereignty. US v.) The notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention which provides that the international crime of torture can only be committed by an official or someone in official capacity. organization of state torture is not an act committed in his official function. Since the immunity applies also to officials who carried out the functions of the state. 1999) General Augusto Pinochet led a military coup that overthrew the Chilean President Allende. Hon. Ruiz (Philippines) The traditional rule of State immunity is a necessary consequence of the principles of independence and equality of States. repairs of base facilities are an integral part of the naval base devoted to the defense of both the US and the Philippines. Dralle v.CHAPTER 10: IMMUNITY FROM JURISDICTION * GR: Jurisdiction of a state within its territory is complete and absolute. at least 3. then no party would be held liable and the structure of universal jurisdiction over torture committed by officials is rendered abortive. it was dismissed upon verification that the Sultan was a sitting foreign sovereign.) Thus. c.With the gradual expansion of state involvement in commerce. acta gestionis are exempt municipal jurisdiction. . terrorism. MacFaddon States enjoy absolute immunity. State Immunity . the rules of International Law are constantly developing and evolving. Bartle and the Commissioner of Police (House of Lords. Senator Pinochet was not acting in any capacity which gives rise to immunity rationae materiae since authorized and organized torture are contrary to international law. But this does not apply where the contract relates to the exercise of its sovereign functions. Sultan of Johore The Sultan of Johore was sued for bread of a promise to marry in a British court. Today.196 people were killed or forcibly disappeared during his dictatorship. the principle of state immunity has evolved to one of restrictive state immunity: only acts jure imperii (governmental acts) and not acts jure gestionis (trading and commercial acts) are immune.M. Immunity of Head of State . According to a national truth and reconciliation mission. commercial and proprietary acts. the House of Lords explained: a. 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. States engage in commercial activities and enter into competition with their own nationals as well as foreigners. are reserved by implication and will be extended to him.
If the answer to (b.) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. If it is in pursuit of a sovereign activity or an incident thereof.) if not. Eriberto Rosario. a State must request the Foreign Office of the state where it is sued to convey to the court that it is entitled to immunity. Jr. Hence.) Under Article 31 of the Vienna Convention on Diplomatic Relations. Republic of Indonesia v. Respondent alleged that the petitioner has expressly waived its immunity from suit based on a provision in the Maintenance Agreement which states that any legal action arising from the agreement will be settled according to the laws of 叶清蓮 & DSP the Philippines and by the proper court of Makati City. then the act is jure imperii. It is merely meant to apply where: (a. d.) The existence alone of a provision in the contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not necessarily a waiver of state immunity from suit. Respondent failed to dispute such claim. water heaters. There is not such waiver in this case. In addition. or (b. and especially if it is not undertaken for profit or gain. and an action against the latter is not a suit against the State within the rule of immunity of the State from suit. The increasing need of sovereign states to enter into purely commercial activities brought about a new concept of immunity. b. Petitioner questions the ruling of the CA that the former had waived its immunity from suit based on the agreement. Respondent alleges that the termination was arbitrary and unlawful. the particular act or transaction must be then tested by its nature. c.Unauthorized acts of government officials or officers are not acts of the State. The applicability of Philippine laws include the principle recognizing sovereign immunity. The SC ruled in favor of the petitioner: a. given explicitly or by necessary implication. Petitioner filed a Motion to Dismiss based on sovereign immunity from suit as well as diplomatic immunity under the Vienna Convention on Diplomatic Relations. electrical facilities. which the CA affirmed. furnishings and equipment of the embassy and the living quarter of its agents and officials.) whether the foreign state is engaged in the activity in the regular course of business. Holy See v.) otherwise waives its immunity by any subsequent act. Minister Counselor Azhari Kasim allegedly found Vinzon’s work unsatisfactory and not in compliance with the agreed standards. James Vinzon of Vinzon Trade and Services. e. the foreign government or international organization must first secure an executive endorsement (in whatever form) of its claim of sovereign or diplomatic immunity. (Philippines) The mere entering into a contract by a foreign state with a private party cannot be the ultimate test of whether the activity or transaction is ―commercial‖. The doctrine of state immunity cannot be used as an instrument to perpetrate an injustice. then it is an act jure imperii. Republic of Indonesia entered into a Maintenance Agreement with respondent. It encompasses its maintenance and upkeep. Vinzon filed a complaint in the RTC Makati. The restrictive theory holds that immunity of the sovereign is recognized only with regard to public acts but not with regard to private acts. to maintain specified equipment (aircons. he claimed that the acquisition of Lot 5-A was for the site of its mission or the Apostolic Nunciature of the Philippines. One must also question: (a. Chief of Administration. regarding the suit against Ambassador Soeratmin and Minister Counsellor Kasim.In PIL. Bu the acts of the Ambassador and the Minister Counsellor in P a g e | 15 Public International Law . a diplomatic agent may be sued in his private capacity for (c. In this case.) the sovereign party elects to sue in the local courts. whether the nature of the particular transaction or act is in pursuit of a sovereign activity or an incident thereof.In the Philippines. Vinzon (2003) Petitioner.) The mere entering into a contract by a foreign state with a private party cannot be construed as the ultimate test of whether or not it is an act jure imperii or jure gestionis. * How to claim State immunity? . as in this case. water motor pumps) at the Embassy Main and Annex buildings and that the Wisma Duta. If the foreign state is not engaged regularly in a business or commercial activity. petitioner has denied having bought and sold lands in the ordinary course of a real estate business. Philippines. Thus. the Embassy terminated the agreement.) is yes.) The rules of IL are neither unyielding not impervious to change. f. generator sets. . Instead. the Ambassador and Minister Counsellor may be sued in their personal capacity for tortious acts done with malice and bad faith. The trial court denied the Motion to Dismiss. the state may enter into contracts with private entities to maintain the premises.) Submission by a foreign state to local jurisdiction must be clear and unequivocal.) The establishment of a diplomatic mission is a sovereign function. and (b.
civil. 32) i. (Art. unless held on behalf of the SS for mission purposes 2. not extending to those payable under the laws of RS by persons contracting with them. .) Diplomatic bag may only contain diplomatic documents or articles for official use. irrespective of ownership Article III.) Tax exemption of diplomatic agents. they enjoy immunity from suit. (Art.) registration.Exception: 1. (Art. inheritance. and of the diplomatic bag.Exceptions: 1. Diplomatic and Consular Immunities .) promote friendly relations * Rights and Privileges of the diplomatic mission: a.) Free entry of articles for official use of the mission and for the personal use of the diplomatic agent or his family. and may at any time and without explanation notify the sending state (SS) that a diplomatic agent is persona non grata or that a staff member is unacceptable.) Express waiver of immunity from suit made by SS or impliedly by diplomatic agent upon initiation of proceedings.) negotiate with the government d. (Art. * Diplomatic Immunities (Vienna Convention on Diplomatic Relations 1961) . (Art. (Art.) members of the mission including the diplomatic.) head of mission b. 24) d. 30) g.) Exemption from social security provisions of the RS for services rendered for the SS.) private servant in the domestic service of a member of the mission. Thus. .) private servant who is either a national or a permanent resident of the RS.) charges levied for services rendered 6.) Mission must have consent of RS to instate and use a wireless transmitter.The immunities and privileges are personal (for diplomat’s benefit) but also functional (to enable the diplomat to perform his functions properly). 33) .) Inviolability of archives and documents of the mission. .) Free communication and inviolability of official correspondence. mortgage dues and stamp duty on immovable property k.) dues and taxes on private immovable property in RS (unless on behalf of SS. and administrative jurisdiction of RS.terminating the agreement was committed in relation to their official functions.Based on customary law.) action relating to succession. for mission purpose) 3. Functions of the diplomatic mission: a. The RS has no obligation to explain its refusal. C. of the diplomatic courier.) report on developments and conditions in the receiving state e.The receiving state has a corresponding obligation to protect the representative and his property and office. Who can enjoy diplomatic immunities? a. but only in respect to compulsory counterclaims. 29) f. not employed by the sending state e. and service staff d. 31) .Exceptions: 1.) diplomatic agent (head of mission or member of diplomatic staff) c. RS has duty to protect the premises and prevent any disturbance to the mission or impairment of its dignity. property.) Inviolability of the person of diplomatic agent from arrest or detention. .) Inviolability of the private residence. done as a private person and not on behalf of the SS 3.) indirect taxes incorporated in price of goods or services 2.) Immunity of diplomatic agent from criminal. (Art. Article I. 22) b. (Art. (Art.) private income from within RS 5. immunity from giving evidence as witness.The SS can either recall the person or terminate his functions with the mission. immunity from execution of judgement.Exception: 1. papers.) personal baggage of the diplomatic agent may be inspected in his/duly authorized representative’s presence if there is serious ground to presume that it contains articles not exempted. (Art. (Art.) real action relation to private immovable property in the RS. court or record fees.) Tax Exemptions for the SS and the head of mission. . administrative and technical. or prohibited by import or export laws or quarantine regulations Public International Law P a g e | 16 . Waiver of immunity from suit is distinct from waiver of immunity from execution. and correspondence of a diplomatic agent. 27) 叶清蓮 & DSP .) not covered by the social security provision in the SS or a third state j. succession duties 4. 36) .) protect its interests and of its nationals c.Official representatives of a state are given immunities and privileges within the territory of another state.) estate.Exceptions: 1. e.Diplomatic relations are purely by mutual consent. 34) .) Represent the sending state in receiving state b.) premises of the mission. 23) c.An agreement by the receiving state (RS) is a prerequisite before the head of mission is sent.) action relating to any professional or commercial activity done in the RS outside his official capacity h. and 2.) Inviolability of mission premises and means of transport. 2.
) Personal inviolability of consular officers from arrest or detention (Art.) permanent resident of RS (not for family of diplomatic agent) m.Head of consular post must first be authorized by RS via an exequatur. 36) d. 43.SS can only recall or terminate his functions with the consular post. 35) c. 42) f.RS may at any time and without explanation notify the SS that a consular officer is a persona non grata or a staff member is unacceptable.) nationals of RS 2. They had the means to perform their obligations but failed to do so.) represent or arrange representation for nationals before the tribunals or other authorities of the RS j. Tehran: US Dipliomatic and Consular Staff in Iran Case ICJ (1980) Iranian students seized the US embassy in Tehran and a number of consulates in the outlying cities.) Waiver of privilege and immunity under Art.) Freedom of communication (Art.Attend only to the administrative and economic issues.Exception: 1. Over 50 US nationals were held hostage for 444 days. only such privileges and immunities that the RS may allow. (Art. immunity of service staff for official acts and tax exemption under Art.) act as notary and civil registrar and perform administrative functions g. * Article V.) issue passports and travel documents to nationals of SS and visa and appropriate documents for those who wish to travel to SS e.Exceptions: 1. the ICJ ruled: a. In deciding in favor of the US. (Art. .) Immunity from jurisdiction for official acts.l. 29-35. . or if already there. (Art. and 2.) safeguard interests of nationals in cases of succession mortis causa in RS h.) safeguard interest of nationals who are minors or lack full capacity i.) extend assistance to such vessels and aircrafts and their crew m. (Art. They must immediately take every effort and opportunity to bring the flagrant infringements of the inviolability of the premises.) further development of economic. (Art. 39) *Obligations of diplomatic mission: a. cultural and scientific relations and promote friendly relations between RS and SS c. 29-36.) Extension of immunity to family of diplomatic agent under Art. For others.Exceptions: 1. immunity of members of administrative and technical staff and their families under Art. or on reasonable period. Court must decide whether the initial attack by the students could be attributed to the Iranian government and whether Iran was therefore in violation of its international obligations. .) Communication and contact with nationals of the SS (Art. 41.Not concerned with political matters. and tax exemption of private servant for emoluments due to employment. 33.) report on development and condition of RS d.) Freedom of movement (Art.) Privileges and immunities begin from entry into RS.) To refrain from practice for personal profit any professional or commercial activity in the RS. 44) h. 43) . Consular Functions: a. They cease upon leaving the RS.) The Iranian authorities were fully aware of their obligations under the conventions to protect the premises of the US embassy and its diplomatic and consular staff and were aware of the urgent need for action. commercial.) Notification of arrest. a consular employee can’t refuse while a consular officer may refuse without threat of coercive measure or penalty. vessel or aircraft g. but shall subsist even in armed conflict.) To respect the laws and regulations of the RS (Art. 37) . from notification of appointment to Ministry of Foreign Affairs of the RS.) civil action by a 3rd party for damage arising from an accident in the RS cause by a vehicle. and 44 by SS (Art. 2. 42) * Consuls and Consular Immunities (Vienna Convention on Consular Relations 1967) .) assist nationals f. .) grave crime.) protect the interest of the SS and of its nationals in the RS b. archives. and their crew l. 41) .) transmit judicial and extrajudicial documents or executing letters to take evidence for the courts of the SS 叶清蓮 & DSP k.) exercise supervision and inspection over vessels under SS flag. b. (Art.) pursuant to a decision by a competent judicial authority e. detention or prosecution (Art. aircrafts registered in SS. archives and interests of the SS and ensure the unimpeded functioning of the consular offices.) other functions not prohibited by laws of RS * Rights and Privileges of the consular mission: a. 38) n.RS has duty to protect the consular premises. and in general reestablish the status quo and offer reparation for damage. 34) b.) Immunities of a diplomatic agent who is a national or permanent resident of RS is limited to immunity from jurisdiction and inviolability in respect to official acts.) civil actions arising from contract not entered into in official capacity. P a g e | 17 Public International Law . 41) b. 45) US v. and diplomatic and consular staff of the US embassy to a speedy end and to restore the consulates to the US control. The Iranian authorities failed to protect the embassy and later appeared to adopt the students’ actions. .) The actions required of the Iranian Government by the Vienna Conventions and by general IL is manifest.) Liability to give evidence.
Gen. Gen. b. had constructed a waterworks system for Bolivar under a contract with the government and operated a machinery repair business. assumed leadership of the government. Environmental Tectonics Corp. Hence. Iran failed to employ the remedies placed at its disposal by diplomatic law specifically for dealing with activities it now complains of. the US court applied the ―act of state doctrine‖: a. A contract was entered into between the Nigerian Government and Kirkpatrick Co. for the construction and equipment of an aeromedical center at Kaduna Air Force base in Nigeria.The basis of their privileges and immunities is not sovereignty but necessity for the effective exercise of their functions. States impose legal standards for admission Once admitted. Environmental Tectonics. not did it indicate any intention to declare any member of the US diplomatic or consular staff in Tehran persona non grata.) The Iranian Government’s decision to continue the subjection of the embassy to occupation by militants and the staff to detention as hostages clearly gave rise to repeated and multiple breaches of the Vienna Conventions. It brought the matter to the Nigerian Air Force and the US embassy in Lagos.‖ SC ruled that the act of state doctrine is inapplicable where the validity of a foreign government act is not in question.) Redress of grievances due to such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. E. embodied by the principle of separation of powers.) The concept of an act of state should not be extended to include the repudiations of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. it is difficult to deny admission to all. and for certain alleged assaults and affronts by the soldiers of Hernadez’s army. whereby courts refrain from making decisions in deference to the executive who is the principal architect of foreign relations. In denying Underhill’s plea. Hernandez refused to grant Underhill a passport to leave the city to coerce him to operate his waterworks and repair works for the benefit of the community and the revolutionary forces. Cuba The issue is whether or not the failure of Cuba to return to Dunhill funds mistakenly paid by the latter for cigars sold to him by certain expropriated Cuban cigar business was an ―act of state. beyond their failure to prevent the attacks. a US citizen.) The Iranian Government did not break of diplomatic relations with the US. done within its own territory. The Act of State Doctrine Underhill v. Environmental Tectonics brought a civil action against Kirkpatrick to seek damages under the Racketeer Influenced and Corrupt Organizations Act. found that Kirkpatrick had bribed Nigerian officials to win the contract. George Underhill. D. aliens may not be expelled without due process Aliens = ―nationals abroad‖ States protect aliens within their jurisdiction in the expectation that their own nationals will be properly treated when residing or sojourning abroad Forms of ill-treatment of foreign nationals: a. v. d.‖ The Court ruled in favor of Dunhill: a. Mistreatment by judicial or police authorities P a g e | 18 叶清蓮 & DSP Public International Law . Hernandez who commanded the anti-administration party. at least under democratic regimes. Banco Nacional de Cuba v. Hernandez Through the 1982 revolution in Venezuela. Alfred Dunhill of London. his alleged confinement to his own house. Defendant moved to dismiss the complaint on the ground of ―act of state doctrine.) Every sovereign state is bound to respect the independence of every other sovereign state. Kirkpatrick Co. Immunity of International Organization . an unsuccessful bidder. and the courts of one county will not sit in judgment on the acts of the government of another. Sabbatino The act of state doctrine is not a rule of international law but of judicial restraint in domestic law. Underhill files a suit in the US to recover damages for the detention. Thus. CHAPTER 11 STATE RESPONSIBILITY PROTECTION OF ALIENS No State is obliged to admit aliens into its territory unless there is a treaty requiring it Generally.c. v. US attorney for the District of NJ charged Kirkpatrick with violations of the Foreign Corrupt Practices Act of 1977 to which the latter pleaded guilty. Inc. as in this case.
US-Vietnam DOCTRINE OF STATE RESPONSIBILITY When an injury has been inflicted. Attributability of the wrongful act to the State 3. Ad-hoc tribunals established for the purpose a. Belgian nationals. Denial of justice or denial of due process of law – failure to prosecute those who attack foreign nationals Diplomatic protection – the instrument used for the protection of aliens o Injury to a national abroad = injury to the individual’s State of nationality o The interest of the State is in the redress of the injury to itself and not of the injury to the individual o Individuals are at the mercy of their own State Corporations and Shareholders The doctrine of ―effective link‖ Barcelona Traction Case Facts: The claim arose out of the adjudication of bankruptcy in Space of Barcelona Traction. Failure to provide those guarantees which are generally considered indispensable to the proper administration of justice e. or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. 9. US-Iran Claims Tribunal b. willful neglect of duty. was shot to death. in order to constitute an international delinquency should amount to an outrage. Jus gentium – applicable to both citizens and aliens 2. aliens should be protected by certain minimum standards of humane protection Neer Claim Facts: Mr. Held: Treatment of an alien. as a result of acts committed contrary to international law. it is to the latter that he has to look to institute appropriate action. Gross deficiency in the administration of judicial or remedial process d. Canada. only the company could take action. Standard for the Protection of Aliens Under the Roman Law: 1. International Court of Justice 2. Whenever a shareholder’s interests are harmed by an act done to the company. there is need to determine whether the State can be held responsible for it Internationally wrongful act – committed when a State violates a customary rule of international law or a treaty obligation What needs to be understood? 1. US-Cambodia b. Denial b. National treatment or Equality of treatment – aliens are treated in the same manner as nationals o Bright side: aliens would enjoy the same benefits as local nationals o Dark side: if the State is tyrannical and its municipal laws are harsh and violative of human rights. Minimum International Standard – however harsh the municipal laws might be. Unwarranted delay or obstruction of access to courts c. if any. then aliens would likewise be subject to such laws 2. Neer. Denial of Justice exists when there is a. Enforcement of the obligation that arises from the wrongful act INTERNATIONALLY WRONGFUL ACT No State can escape this responsibility when once it has committed an act which satisfies the requirements of an ―internationally wrongful act‖ P a g e | 19 叶清蓮 & DSP Public International Law . bad faith. Jus civile – applicable only to Roman citizens In modern times 1. The claim’s object was to seek reparation for damage suffered by its shareholders. Held: The Court found that Belgium lack jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain. Unlawful expropriation of property c. hence. Elements of an Internationally wrongful act 2. a US national working in Mexico. it is the State of Nationality of the corporation. Manifestly unjust judgment – but error of a national court which does not produce manifest injustice is not denial of justice Enforcement Regimes Who can resolve issues of violations of the rights of aliens when appealed to by States in conflict? 1. a company incorporated in Canada.b. As to who should have the right to protect the corporation. in this case. was committed against the company. The breach. Lump-sum Settlements (Claims Settlement Agreements) a. UN Compensation Settlements 3. It was claimed that the Mexican government had been negligent in their investigation of the murder. Denial of Justice Harvard Draft Convention on the Responsibility of States for Damages o Art.
and whatever its character o Organ – includes any person or body which has that status in accordance with the international law of the State b. Issue: w/n Mexico is responsible for actions of individual military personnel acting without orders or against the wishes of their commanding officers Held: Objective responsibility of the States – responsibility for the acts of the officials or organs of a State. US did not issue any public and official warning to international shipping of the existence and location of the mines. whatever position it holds. Objective – act constitutes a breach of an international obligation of the State What determines the wrongful character of the act is international law and not internal law 1. a French national. Applying to the present case. equipped. in this capacity they began exacting the remittance of certain sums of money and when Caire refused. P a g e | 20 叶清蓮 & DSP Public International Law . The imputability to US of these attacks appear therefore to the Court to be established. affect the responsibility of the State. there remains no doubt that. Nicaragua complains also of infringement of its air space by US military personnel. was killed in Mexico by Mexican soldiers after they had demanded money from him. Conduct of a State organ or of an entity empowered to exercise elements of governmental authority. such organ or entity having acted in that capacity. This responsibility does not find its justification in general principles. in international affairs. therefore. ATTRIBUTION TO THE STATE 1. The act of an official is only judicially established as an act of State if such an act lies within the official’s sphere of competence. The act of an official operating beyond this competence is not an act of State.‖ Nicaragua also alleges that US conceived. executive. or they must have used powers or methods appropriate to their official capacity. but to the State itself 2. Elements of Internationally wrongful act: Subjective – act must be attributable not to the persons or agencies who performed it. exceeding its authority or contravening instructions concerning its exercise CAIRE CLAIM Facts: Caire. whether the official or organ in question has acted within or exceeded the limits of his competence. It should not in principle. they finally shot him. by persons in the pay and acting of the instructions of such agency. The Court is not able to satisfy itself that US created the contra force but holds it largely financed. and that personal and material injury was caused by the explosion of the mines. The Court finds that only violations of Nicaraguan air space imputable to US on the basis of the high altitude reconnaissance flights and low altitude flights causing ―sonic booms. which may devolve upon it even in the absence of any ―fault‖ on its own It tends to impute to the State. the officers in question consistently conducted themselves as officers in the brigade of the Villista general. Acts of State Organs a. In order to be able to admit this so-called objective responsibility of the State for acts committed by its officials or organs outside their competence. Conduct of an entity which is not an organ of the State but which is empowered to exercise elements of governmental authority provided the entity was acting in that capacity in the case in question c. the officers have involved the responsibility of the State. even if they are to be regarded as having acted outside their competence. either in Nicaraguan internal waters or in its territorial sea. those regulating the judicial organization of the State. judicial or any other functions. Acts of any State organ whether the organ exercises legislative. created and organized a mercenary army. Under these circumstances. trained. one element of the force. CORFU CHANNEL (previous case) NICARAGUA v. The President of US authorized a US Government agency to lay mines in Nicaraguan ports. Conduct of an organ placed at the disposal of a State by another State acting in the exercise of elements of governmental authority of the State at whose disposal it had been placed d. they must have acted at least to all appearances as competent officials or organs. armed and organized the FDN. the contra force. the responsibility for all the acts committed by its officials or organs which constitute offenses from the point of view of the law of nations. US Facts: Nicaragua alleges that the mining of Nicaraguan ports or waters was carried out by US military personnel.
all US’ Missions were attacked. which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration a. or under the direction or control of. it was in itself a fiscal measure to which British Government was perfectly entitled to exercise. Issue: w/n the revolt is attributable to the British Government Held: Even assuming that the ―hut tax‖ was the effective cause of the native rebellion. Lack of nationality link b. Held: Where a revolution leads to the establishment of a new government. and either destroyed or damaged. where it is itself guilty of no breach of good faith. The acts of supporters of a revolution as opposed to its agents cannot be attributed to the government. There is no clear evidence that US actually exercised such a degree of control as to justify treating the contras as acting on its behalf. PRELIMINARY OBJECTIONS Claim of denial of justice may be lost due to failure to answer some preliminary objections a. 2. A partial dependency may be inferred from the fact that the leaders were selected by US. or of no negligence in suppressing insurrection. BRITAIN) Facts: The collection of a tax newly imposed by Great Britain on the natives of Sierra Leone known as the ―hut tax‖ was the signal for a serious and widespread revolt in the Ronietta district. US v. insurrectional or other. these does not amount to an authorization to revolutionaries to act in such a way that the Claimant should be forced to leave Iran. The claimant sought compensation for salary and other losses resulting from his alleged expulsion contrary to international law. Failure to exhaust national remedies o Purpose: to protect international courts from being swamped with cases which are better handled locally o Application: cases founded on diplomatic protection or on injury to aliens 叶清蓮 & DSP Public International Law P a g e | 21 . the State is held responsible for the acts of the overthrown government insofar as the latter maintained control of the situation. and that the loss of life and damage to property is the result of such neglect. SHORT v. While these statements are of anti-foreign and in particular anti-American sentiments. that State in carrying out the conduct b. Claimant relies on the declarations made by the leader of the Revolution. claimant was evacuated from Iran on company orders. and some of the missionaries were murdered.Issue: w/n the contras is equated as an organ of US or is acting on behalf of US Held: The Court considers that the evidence available to it is insufficient to demonstrate the toal dependence of the contras on US aid. Conduct of a movement. Acts of Revolutionaries Conduct of an insurrectional movement. HOME MISSIONARY SOCIETY CLAIM (US v. IRAN (previous case) 3. Conduct of a person or group of persons exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority a. Acts of other Persons Conduct of a person or group of persons acting on the instructions of. In the course of rebellion. which becomes the new government of a State b. IRAN Facts: Claimant is an American national employed by an American Company in Iran. 3 days before the Islamic Revolutionary Government took office. US contends that British Government is responsible for the revolt since it wholly failed to take proper steps for the maintenance of order and the protection of life and property. Claimant relies only on the acts committed by revolutionaries and is unable to identify any agent of the revolutionary movements whose actions compelled him to leave Iran. It is well established principle of international law that no government can be held responsible for the act of rebellious bodies of men committed in violation of its authority.
Obligation to make full reparation for the injury caused by the internationally wrongful act 2. arising in consequence of the internationally wrongful act 3. but also and above all incompatible with the aim of the Convention that is the prohibition of the liquidation of property. if need be. Such a consequence would not only be unjust. Universal respect for. slaves. Higher standards of living. both domestic and foreign o In such cases. Solutions for international related problems 3. or. whether material or moral. do not provide for the definitions of human rights THE COVENANT ON CIVIL AND POLITICAL RIGHTS The following are substantive rights: 1. Restitution in kind. Life. common heritage of mankind. Injury consist of any damage. Responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligation CHORZOW FACTORY CASE (GERMANY v. POLAND) Facts: The action of Poland which the Court has judged is not an expropriation but is a seizure of property which could not be expropriated even against compensation. e. The essential principle contained in the actual notion of an illegal act is that reparation must wipe out all the consequences of the illegal act and re-establish the situation would have exited if that act had not been committed. rights and interests of German nationals and of companies controlled by German nationals in Upper Silesia. however.g. in a situation more unfavourable than that in which Germany and these interests would have been if Poland had respected the said Convention. payment of a sum corresponding to the value which a restitution in kind would bear. and conditions for economic and social progress and development 2. of damages for loss sustained which would not be covered by restitution in kind or payment in place of its – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. clean environment. minorities. minority rights AN EMERGING INTERNATIONAL BILL OF HUMAN RIGHTS The UN became the cradle for the development of the new international law on human rights Key obligations assumed by the Organization and its Members: 1. security or the national inters which are recognized as overriding purely individual or private interests. self-determination. Such a limitation might result in placing Germany and the interests protected by Geneva Convention. Held: If follows that the compensation due to German Government is not necessarily limited to the value of the undertaking at the moment of disposition. development. if this is not possible. the owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law CHAPTER 12 INTERNATIONAL HUMAN RIGHTS LAW FROM ALIEN RIGHTS TO HUMAN RIGHTS Early concern about human rights was about specific classes of people. does not say when protected life begins. Traditional civil and fundamental rights 2. the award. and Equality This. and observance of. plus interest to the day of payment. and certain nationalities It was not until the birth of the United Nations that human rights of all people became the subject of legislation Human Rights – those inalienable and fundamental rights which are essential for life as human beings 3 generations of human rights: 1. CALVO CLAUSE REJECTED A provision in a contract to the effect that ―under no condition shall the intervention of foreign diplomatic agents in any matter related to the contract‖ be resorted to This was rejected in North American Dredging Company Claim due to the right to seek redress is a sovereign prerogative of a State and a private individual has no right to waive the State’s right EXPROPRIATION OF ALIEN PROPERTY Expropriation can be internally wrong if it is done contrary to the principles of international law 1962 UN General Assembly Resolution on the Sovereignty over Natural Resources o Expropriation shall be based on grounds or reasons of public utility. Liberty and Property. Social and economic rights 3.REPARATION 1. whereas the Philippines protects ―the life of the unborn from conception‖ There is also no provision on the right to property P a g e | 22 叶清蓮 & DSP Public International Law . human rights These. Right to peace. however. full employment.
only after conviction for the most serious crimes In Article 14. for instance. SOCIAL AND CULTURAL RIGHTS The rights specific to this are social welfare rights a. the right to change one’s residence and the right of the aliens not to be expelled without due process Limitations: a. Expression and Political Freedoms This includes the explicit protection of the Right of Parents in the matter of Religion for their children Covenant prohibits ―propaganda for war‖ 6. Right to the highest standard of physical and mental health h. Legal Personality. Right to education including compulsory primary education i. UNDHR. Minorities This guarantees ―ethnic. in accordance with its constitutional processes and with the provisions of present Covenants P a g e | 23 4. Conscience. Anyone who has been a victim of unlawful arrest or detention 2. religious or linguistic minorities‖ This is one of the few rights which was already the subject of earlier treaties (Treaty of Versailles and Polish-German Upper Silesia Treaty) 2-fold aspect for the concern for minorities: 1. Thought. right to leave the country. Those provided for by law b. Right to adequate standard of living g. Freedom of Movement Right to travel within the country. Necessary to protect national security. Any person who has been a victim of miscarriage of justice unless the non-disclosure of the unknown fact in time is wholly or partly attributable to him 2. Right to social security and insurance e. minority or insanity 5. public order. right to return to one’s country. Fear of a secessionist movement by minorities 2. Right to favorable conditions of work c. public health or morals The separation between the right to leave and right to return to one’s country is to make the limitation more narrow than for the right to leave the country since exile is now prohibited by customary law and may even be jus cogens 7. to freely dispose of the natural wealth and resources without prejudice to any obligation arising out of international cooperation Peoples – include those ruled by colonial powers. Religion. infancy. Right to form free trade unions d. Legal Personality Capacity to Act Whether citizens or aliens May not be available to some by reason. those who form a component part of a multi-national state 2 aspects of Self-Determination: a. ill-treatment and Prison Conditions Proscription on torture and other forms of ill-treatment that offend not only against bodily integrity but also against personal dignity Imprisonment in conditions seriously detrimental to a prisoner’s health constitutes a violation of Articles 7 and 10(1) of the Covenant 3. Associations and Unions Covenant is silent about the right of government employees to form unions which is explicit in our Constitution 叶清蓮 & DSP Public International Law . and to the Optional Protocol to the Covenant on Civil and Political Rights Treaty commitments become part of domestic law Those which are not self-executing provisions must be attended to by the necessary steps. the 2 Covenants. Torture. Right to freely determine their political status and freely to pursue their economic. Genuine concern for the human rights of minorities and the desire to flourish 8. External – belongs to colonies and to those non-self governing and Trust Territories OPTIONAL PROTOCOL ON THE COVENANT ON CIVIL AND POLITICAL RIGHTS This treaty is designed to enable private parties who are victims of human rights violations Complaints may be filed only against States who have ratified the Protocol THE COVENANT ON ECONOMIC. Right to special assistance for families f. Right for their own ends. Internal – this is the 2 important rights b. the Covenant’s Article 6(2) expresses a bias for the abolition of the death penalty and allows its imposition. On the right to life. Right to work b. social and cultural development b. it is more restrictive in the matter of publicity of criminal proceedings ―where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children 2 provisions on Right to Compensation: 1. Self-determination of Peoples This covers 2 important rights: a. Right to the enjoyment of cultural and scientific benefits and international contracts DUTY TO IMPLEMENT The Philippines is a party to the UN Charter. in countries which still have death penalty. Privacy and the Family When does one become a person? The Covenant does not say.
Public debate procedure under ECOSOC Resolution 1235 o This carries 2 types of activities: 1. If SC deems the dispute to likely endanger international peace and security. at any stage recommend appropriate procedures or methods of adjustment. Slavery and Discrimination INTERNATIONAL IMPLEMENTATION OF HUMAN RIGHTS LAW Each country has the obligation to implement human rights law within its jurisdiction properly done through municipal or regional courts 2 different procedures used by Human Rights Commission for responding to violations of human rights: a. and justice are not endangered. 36: SC may. But if a decision is made to settle disputes. Art. resort to regional agencies or arrangements. 38: If all parties request. the obligation is to settle them peacefully. 33: (disputes likely to endanger international peace and security) Parties to any dispute shall first of all seek a solution by negotiation. or (b) recommend appropriate terms of settlement. par. but findings invariably find their way into media b. 33. judicial settlement. It engages in studies and investigations of particular situations INTERNATIONAL CRIMINAL COURT Until the establishment of ICC. Genocide Convention b. or other peaceful means of their choice. Convention Against Torture and other Cruel. SC should take into consideration what has already been adopted by the parties. SC may make recommendations for pacific settlement. Crimes against Humanity. Convention on the Elimination of All Forms of Racial Discrimination c. they shall refer it to the SC. Inhuman or Degrading Treatment or Punishment e. and the Crime of Aggression Principle of Complementarity – the court of last resort 叶清蓮 & DSP Public International Law P a g e | 24 . There is no obligation to settle disputes except in cases that might endanger peace and security. When it deems necessary. 2. conciliation. Convention on Migrant Workers CUSTOMARY HUMAN RIGHTS LAW Prohibition on Torture. Genocide. mediation. 37: If parties fail to settle disputes via Art. Art. 36. international crimes were prosecuted in ad hoc criminal courts (Nuremberg and Tokyo Tribunals) The goal of ICC is to demand individual and not collective accountability Its jurisdiction is limited to most serious international crimes: Genocide. Other Conventions on Human Rights a. the SC shall call upon the parties to settle their disputes by such means. Convention on the Rights of the Child f. Confidential consideration under ECOSOC Resolution 1503 o The confidential findings of the Sub-Commission are brought to the attention of CHR o The CHR is expected to submit its report and recommendation to the ECOSOC o Procedure is kept confidential. arbitration. It holds annual public debates in which governments and NGOs are given opportunity to identify specific situations which deserve attention 2. War crimes. enquiry. Progress Realization – State is obligated to undertake a program of activities and to realize those rights which are recognized by the Economic Covenant CHAPTER 13: PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES What is international dispute? A disagreement on a point of law of fact. Convention on the Elimination of All Forms of Discrimination Against Women d. a conflict of legal views or interests between 2 persons Must have practical effect on the relationship between the parties Peaceful methods of settling disputes: Art. Art. Key provisions in UN Charter: Art. SC should consider that legal disputes should generally be referred by the parties to the ICJ. it shall: (a) take action under Art. 3 of UN Charter: ―All members shall settle their international disputes by peaceful means in such manner that international peace and security.
Arbitration clause incorporated in a treaty b. Treaties solely to establish methods of arbitration (i. States may limit their acceptance to certain types of disputes and attache various conditions and reservations. etc. adverse party did not receive proper notice OR was not afforded opportunity to present its case c. (b) with high moral character. (c) rules of procedure to be applied. Only means that the State may accept its jurisdiction. regardless of nationality. Non-judicial Negotiation: Preferred since States are hesitant to submit disputes to adjudicatory bodies. (b) jurisdiction. Merely clears the air. etc. No set rules: An agreement to negotiate may be formalized via treaty or exchange of notes. Arbitral decisions Applies international law UNLESS parties specify that some other law applies. under the law of the adverse party. Inquiry: Fact-finding done by a designated group of individuals or institutions. To be binding. Ad-hoc arbitral agreements (i. Hague Convention for Pacific Settlement of Disputes) c. Quasi-judicial Arbitration Binding settlement of a dispute on the basis of law by a non-permanent body designated by the parties. The compromis d’arbitrage is agreed upon by the parties and sets out: (a) composition. there was corruption on the part of a member of the body c. States cannot be required to submit to arbitration UNLESS there is a previous agreement. composition of tribunal. under the law of the adverse party. the constitution of the tribunal OR the arbitral procedure was contrary to the agreement or the law of the state where arbitration took place e. award is outside the terms of agreement to arbitrate d. Mediation: Involves assistance of 3rd parties (approved by bother parties) who either act as bridge between parties who don’t meet OR may sit with the disputants to chair meetings. process. has been set aside or suspended by a competent court where it was made f. after which disputants look for a win-win solution via a give-and-take process. Preliminary step is ―good offices‖ when a neutral 3rd party tries to bring 2 disputants together. failure to state reasons for the awards OR a serious departure from fundamental rule of procedure d. Art. suggest solutions. Resolves disputes based on questions of fact. the arbitral body exceeds its powers b. b. parties MUST agree to it. award has not yet become binding. the undertaking to arbitrate OR the compromis is a nullity Domestic courts may refuse to give recognition to arbitral awards under Convention on the Recognition and Enforcement of Foreign Arbitral Awards: a. the subject matter is not capable of settlement by arbitration g. Arbitral decisions may be challenged if: a. General principles: a.e. States cannot be compelled to submit their disputes to international adjudication unless they consent. Generally. Conciliation: A more formal technique whereby parties agree to refer controversies to a 3rd party to make findings of fact and recommendations. Composition of the ICJ: Art. (c) who possess qualifications required by their countries for appointment to the highest judicial offices OR are jurisconsults of recognized competence in international law. Different from judicial settlement since parties have a greater say in deciding the law applied. 3 types of arbitral agreement: a.e. Judicial ICJ All members of the UN are ipso facto parties to the Statute of ICJ.Classifications of peaceful means of settlement: A. 2: Composed of a body of (a) independent judges. but it does not mean acceptance of the court’s jurisdiction. recognition or enforcement would be contrary to public policy B. agreement to arbitrate was not valid under applicable law b. 3: 15 members. parties are not bound by the recommendations. no 2 of whom from the same State P a g e | 25 叶清蓮 & DSP Public International Law . May be arm’s-length or face to face. Only states may be parties in the court. US-Iran claims) C.
The case was initially brought to the ICJ by Israel. 1984) I. Facts: In 1964. of UN Reciprocity enables a party to invoke a reservation to the compulsory recognition which was not expressed in its own Declaration BUT was expressed in the other party’s. interpretation of a treaty b. On grounds of reciprocity and consensual basis of ICJ jurisdiction. nature or extent of the reparation for breach of international obligation Declarations of compulsory recognition may be made un/conditionally. which the Court accepted as the end of the dispute. 3 ways to accept ICJ’s jurisdiction: a. Investigators argue that Bulgarian military failed to adhere to international civil aviation agreements involving appropriate interception and identification of intruding aircraft. it shall be settled by ICJ decision.‖ The 1984 notification was deposited with the Sec. or (b) particular cases. stating that ―the 1946 declaration shall not apply to disputes with any P a g e | 26 Public International Law . Facts: US acceded to the optional clause. preferably among those nominated as candidates. If a judge of the same nationality of a party is included in the Bench by the Court. nationality is based on where civil and political rights are ordinarily exercised. US continued its claim based on violation of international law and injuries to US nationals. ICJ 1959) 1. Art. including 6 US nationals. Bulgaria contests ICJ’s jurisdiction. 叶清蓮 & DSP Aerial Incidence Case (US. stating that Bulgaria’s acceptance of the optional clause in the Statute of PCIJ did not carry over to acceptance of the optional clause of the ICJ. Nicaragua vs. Signatory states may at any time declare compulsory recognition in relation to any other state accepting the same obligation. Optional system (Unilateral declaration of recognition in relation to any other state accepting the same jurisdiction in all legal disputes) Art. on condition of reciprocity of several or certain states. vs. 4: The Court can form chambers. the other party may choose a person to sit as judge. or for a certain time. the parties may choose a judge. Bulgaria. 27: Judges of the nationality of the parties shall retain their right to sit in the case. c. 26: Chamber decisions are deemed Court decisions. Art. In case of dispute as to Court’s jurisdiction. US (ICJ. Disputes are to be settled by IL and not DL. existence of any fact which. Court acquires jurisdiction only upon referral by both parties. Submitted to the Sec. any question of international law c. 36: All cases which parties refer to it and all matters specially provided for in the UN Charter or in treaties and conventions in force. composed of 3 or more judges. killing all passengers and crew. for dealing with particular categories of cases. Ad-hoc basis (one party applies unilaterally to the Court and is consented to by the other party) b. The President shall request the members of the Chamber to give place as necessary. Contentious Art. Jurisdiction of the ICJ: 1. if established. the jurisdiction of the ICJ in all legal disputes concerning: [Optional system] a. the US made a Optional Clause Declaration with a reservation that ―it would remain in force for 5 years and thereafter until the expiration of 6 months after notice was given to terminate. would constitute a breach of international obligation d. by the US. or (c) at the request of the parties. as determined by the US‖ (Connally amendment) EL Al Israel airliner was driven off course by bad weather and innocently passed through Bulgarian air space where it was shot down by Bulgarian military planes. thereby accepting the compulsory jurisdiction of the ICJ but subsequently made a reservation for ―disputes with regard to matters which are essentially within the domestic jurisdiction of the US. Several parties of the same interest are deemed one party only. the composition to be approved by the parties. US withdrew its application. where ICJ ruled that it had no jurisdiction. If dual citizenship.Gen. Bulgaria had invoked the Connelly amendment exempting matters within its internal competence and contended that its airspace security and anti-craft defenses were within its domestic jurisdiction. Parties adhere to a treaty which accepts jurisdiction on matters of interpretation or application of a treaty.Gen. If the Bench does not include a judge of the same nationality as the judges.
the US included a proviso which required a 6 months’ notice prior to termination. Case concerning East Timor (Portugal vs. duration or extinction. the notion of reciprocity is concerned with the scope and substance of commitments (including reservations) and not with the formal conditions of their creation. the nature of the obligation is different from the rule of consent to jurisdiction. the fact that the latter denied the same created a legal dispute. Thus. II. Facts: Portugal initiated proceedings against Australia for the latter’s ―failure to observe the obligation to respect the duties and powers of Portugal as the administering power of East Timor and the right of the people of ET to self determination and related rights‖ pertaining to the Treaty of 1989 for the creation of a zone of cooperation in the area between East Timor and Northern Australia. 41 to preserve the rights claimed. Both Governments should ensure that no action is taken which might prejudice the rights of the other party in respect to the carrying out of whatever decision the Court may render. the Court cannot rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Nicaragua vs. US I. Held: 叶清蓮 & DSP Court found that Australia’s behavior cannot be assessed without first entering into the question of why Indonesia could not lawfully have concluded the 1989 treaty. blocking or endangering access from or to Nicaraguan ports. and in particular. Portugal insists that the dispute is exclusively based on the objective conduct of Australia when the latter negotiated. Central American State or arising out of events in Central America. States should not intervene in matter within the domestic jurisdiction of a State. II. Until final judgment. it referred to the declarations of both states under the optional system. Provisional Measures Art.. the Court found the same untenable. Reciprocity cannot be invoked to excuse departure from the terms of the State’s own declaration. US should cease and refrain from any action restricting. having regard to the circumstances in which Indonesia entered and remained in East Timor. b. Nicaragua could not rely the the US’ time-limit proviso under the principle of reciprocity. 41: ICJ has the power to indicate any provisional measures which ought to be taken to preserve the respective rights of either party Pending final decision. US contends that Nicaragua was not a ―state accepting the same obligation‖ since its own declaration was of undefined duration and thus liable to immediate termination. it could/not have acquired power to enter into treaties on behalf of ET relating to resources of its continental shelf. States should refrain from using force or threat of force against its territorial integrity or political independence. Furthermore. the Court will keep matters covered by this order continuously under review. The very subject matter would be a determination whether. However. Australia. given that the timelimit proviso was made by the US freely and by its own choice. c. d. notice of the measures suggested shall be given to the parties and the SC. Such measures include: a. Australia contends that the real dispute is between Portugal and Indonesia and that the latter has not signed the optional clause. The Court ruled that w/n Portugal has rightly formulated complaints against Australia.this notice shall take place immediately and remain in force for 2 years. e. Facts: Court finds it necessary to indicate provisional measures under Art. Nicaragua can invoke the 6 months notice not on the basis of reciprocity but because it is an undertaking which is an integral part of the instrument that contains it. thereby taking away the court’s jurisdiction over the case.‖ The ICJ initially found that Nicaragua could rely on the 1946 declaration since it was a ―state accepting the same obligation‖ on the basis if its own declaration under the Statute of the PCIJ.. The right to sovereignty and political independence of Nicaragua. W/N the behavior of Australia breaches rights erga omnes (ET’s right to self determination). US contends that the 1984 notification should be given effect. Further. Held: In its 1946 declaration. As basis for jurisdiction. The governments of US and Nicaragua should ensure that no action is made to aggravate or extend the dispute. ICJ 1995) I. concluded and initiated performance of its treaty with Indonesia. The court cannot make such determination without the consent of Indonesia. Australia contends that the effect of Portugal’s application would require the Court to determine the rights and obligations of Indonesia to settle the validity of the treaty between Australia and Indonesia. Finally. P a g e | 27 Public International Law . Such decision in no way prejudges the question of jurisdiction to deal with the merits of the case. laying mines. the court ruled that it cannot be inferred from the sole fact that a number of resolutions of the GA and the SC refer to Portugal as the administering Power of ET that they intended to establish an obligation on 3rd states to treat exclusively with Portugal as regards the continental shelf of ET.
to inform the Court of its legal rights which are in issue in the dispute The Court points out that there must be a legal interest that may be affected.‖ Further. There is a fundamental distinction between the question of acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law. Case concerning legality of use of force (Yugoslavia vs. to protect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca and the adjacent maritime areas by all legal means available b. but limited to the scope of its legal interests. It is not allowed to tack on a new case nor have its own claims adjudicated by the Court. It does not acquire the rights or become subject to the obligations. Germany. Portugal. Nicaragua must also show a ―valid like of jurisdiction‖ between Nicaragua and the Parties. therefore. it may submit a request to the Court to be permitted to intervene. 62: If a State has an interest of a legal nature which may be affected by the decision in the case. Facts: By request of the Federal Republic of Yugoslavia against the NATO states (Belgium. US. before deciding w/n to indicate them. Normally. Netherlands. 叶清蓮 & DSP Intervention Art. 38. Held: Court accepts US’ contentions and finds that it does not have jurisdiction to entertain the dispute between Yugoslavia and the US alleged to fall under the provisions of the GC. even prima facie. no other State may involve itself in the proceedings without the consent of the original parties.‖ Court finds that the subject of intervention is proper. Art. US contends that it made a clear and unambiguous reservation that ―with reference to Art. (a) reservations in the Genocide Convention are generally permitted. the Court need not. the fact that US has not made such consent does not create a prima facie jurisdiction allowing the Court to indicate any provisional measure. US adds that there no legally sufficient basis between the charges against the US and the supposed jurisdictional basis under the GC. In requests for provisional measures. The Court’s competence in this matter is not derived from the consent of the parties to the case. Court recognizes that it can exercise jurisdiction only between states parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court. P a g e | 28 Public International Law . par. but the construction given by the judgment shall be binding on the intervenor. Rules of Court require a statement of the ―precise object of intervention. However. 62 does not require a separate title of jurisdiction. specific consent of the US is required in each case. Every state notified has the right to intervene. Honduras (Nicaraguan Intervention. El Salvador contends that for intervention to be proper. II. which attach to the status of a party. prima facie. W/N States accept jurisdiction. (b) the reservation is not contrary to its object and purpose. 62: a. procedures for a 3rd state to intervened are provided in Art. 62 and 63 of the Court’s Statute. It has the right to be heard by the Chamber. IX. UK. ICJ. in becoming parties to the Court’s statute. Facts: Nicaragua filed an application to intervene based on Art. Disputes relating to the legality of such acts MUST be resolved by peaceful means chosen by the parties. either in general form or for the individual dispute concerned. US) in relation to the bombings carried out by NA 8:00 AM forces. which the Court shall decide at its discretion. IX of the Genocide Convention to which both parties are signatories. 1999) I. Even under Art. (c) absence of Yugoslavia’s objection to the reservation means acceptance. El Salvador vs. finally satisfy itself that it has jurisdiction on the merits of the case. but the the consent given by them. Italy. Spain. A state allowed to intervene does not become a party to the case. France. Further.f. 5 of the Rules of Court which allows the jurisdiction of the Court to be founded upon the consent thereto yet to be manifested or given by the other party. they remain responsible for acts attributable to them that violate IL. ICJ 1992) I. Thus. 63: Registrar shall inform all parties to a convention regarding cases which relate to its construction. Nicaragua however bases jurisdiction only upon the ICJ Statute and states that Art. the Court has competence to permit intervention (subject only to the requirements of object and purpose) even if both parties oppose. Written proceedings shall first be addressed to the question of jurisdiction of the Court. including humanitarian law. yet only if the provisions invoked by the applicant appear. Held: The Court’s decision’s binding power rests upon the agreement of both parties to the case to confer jurisdiction upon the Court. to afford a basis on the the jurisdiction of the Court might be established. Yugoslavia claims ICJ jurisdiction based on Art. Canada. II. and that Article manifestly does not constitute a basis of jurisdiction in the present case.
the Court shall construe it upon request of any party. Through written requests containing (a) the exact statement of the question and (b) all documents likely to throw light upon the question. 59: No binding force except as between the parties and in respect to that particular case Art. within a time limit fixed by the President. Parties which presented shall be permitted to comment on statements made by others. 60: Final without appeal. (c) such ignorance was not due to negligence. and the court will decide. 2(4) of the UN Charter: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. Art. Obligation to comply with decisions Art. The Court must first decide whether the fact is of such character as to lay the case open to revision. the respect for territorial sovereignty is an essential foundation for international relations. was unknown to the Court and to the party. Application must be made within 6 months from discovery and within 10 years from date of judgment. It can only regard the alleged right of intervention as the manifestation of policy of force which cannot find a place in international law. or in any other manner inconsistent with the Purposes of the United Nations. Autonomy of individual states b. which must be: (a) a decisive fact. Their right to freedom from coercion and to the integrity of their territory Art. 2. 65: Advisory jurisdiction in accordance with the UN Charter On any legal matter at the request of any body authorized to do so. The above text does not use the word ―war‖ because it is a technical term which does not include some uses of force o Hence. that the Court will be prepared to receive written statements OR hear at a public sitting oral statements relating to the question If an entitled state fails to receive notification. Winning state may make uses of alternative methods of enforcement. Held: The Court cannot accept these lines of defense. (b) at the time judgment was given. via special and direct communication. Such enforcement measures are subject to veto powers of the permanent members. notify any state entitled to appear or international organization likely to furnish information on the question. In the event of dispute as to (a) meaning or (b) scope of the judgment. The Court is also unable to accept the theory of self help as between independent States. it may express a desire to submit a written statement or to be heard. P a g e | 29 叶清蓮 & DSP Public International Law . Britain sent additional warships to sweep the minefields within Albanian territory arguing the theory of intervention where its objective was to secure the mines for possible fear that they should be taken away. Art. the prohibition is broader than the prohibition of war noting that it applies to ―any other matter inconsistent with the Purposes of the United Nations‖ Corfu Channel Facts: After a British warship had been struck by mines. 61: Application for Revision of a judgment may be made only when based upon newly discovered fact. Advisory non-binding non/acceptance depends on internal law of the institution Art. and declaring the application admissible. 96 UN Charter: SC and GA may make requests for advisory opinion. and the theory of self-help. 66: Registrar shall: a. GA may also authorize other UN agencies to seek advisory opinion on legal questions arising within the scope of their activities. CHAPTER 14 THE USE OF FORCE SHORT OF WAR Use of Force General Principle: International law recognizes the a. which may make recommendations OR decide upon measures to be taken to give to the judgment. Art. give notice of the request to all state entitled to appear before the Court b. such as economic or diplomatic pressure. 94 of UN Charter: If any party fails to perform any obligation under ICJ judgment. The Court may require previous compliance with the terms of judgment before it admits proceedings in revision. Art. the other party may have recourse to the SC.
within which to accept the demands made upon it and is told that. States do not invoke the right because they are afraid that it might be used against them too 2. Is anticipatory self-defense allowed? 2 views: 1. regardless of the weapons employed. These apply to any use of force. Occupation of a given territory Legality of the Threat or Use of Nuclear Weapons The Charter recognizes the inherent right of individual or collective self-defense if an armed attack occurs. Threat of Force Charter prohibits not just use of force but also the threat of force Typical form of threat of force: o A State is given an ultimatum.‖ The Court does not believe that the concept of ―armed attack‖ includes assistance to rebels. to which it is subject on the treaty-law plane of the Charter Nicaragua v. this being additional to the requirement that the State should have declared itself to have been attacked. Revocation of tariff concessions not guaranteed by treaty c. US The general rule prohibiting force established in customary law allows for certain exceptions. 51 refers to an ―inherent right‖. Retorsion o Any forms of counter-measures in response to an unfriendly act o Includes: a. which Art. Whether self-defense be individual or collective. the Allied forces came on invitation of Kuwait which was under invasion The right to use force to defend claimed territory was rejected in the Falkland War Traditionally Allowable Coercive Measures 1. if it rejects the demands. The exception of the right of individual or collective self-defense is also established in customary law. there is no ruling permitting the exercise of collective self-defense in the absence of a request by the State which is a victim of the alleged attack. it can only be exercised in response to an ―armed attack. A further lawful use of force is envisage whereby the Security Council may take military enforcement measures in conformity of the Charter. The Parties agree in holding that whether the response to an attack is lawful depends on the observance of the criteria of necessity and the proportionality of the measures taken in self-defense. Israel launched a preemptive strike against its Arab neighbors but the UN did not condemn the act In the case of the Gulf War against Iraq. regarded as a principle of customary international law. directly or indirectly. the Court finds that in customary international law. The prohibition of the use of force is customary international law Nicaragua v. Furthermore. independently of the provisions. The entitlement to resort to self-defense is subject to the conditions of necessity and proportionality. 叶清蓮 & DSP Public International Law . 3. Severance of Diplomatic Relations o Reason: there is no obligation to maintain diplomatic relations o Limitation: not be resorted unless truly necessary because it might endanger peace o Suspension involves withdrawal of diplomatic representation but not of consular representation 2. especially those of an institutional kind. a time-limit. Naval blockade b. for the consequences of illegal act of another State which has refused to make amends for such illegal acts o This must be preceded by an unsatisfied demand for reparation P a g e | 30 Individual and Collective Self-Defense Exception to the prohibition of the use of force Article 51 Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and the responsibility of the Security Council to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Bombardment c. Display of naval forces near the waters of an unfriendly State Reprisal o Any kind of forcible or coercive measures where by one State seeks to exercise a deterrent effect or obtain redress or satisfaction. war will be declared on it or certain coercive measures will be taken Examples of coercive measures: a. Shutting of ports to vessels of an unfriendly State b. US Consent to such resolutions is one of the forms of expression of an opinio juris with regard to the principle of non-use of force.
proof is necessary that the central authorities are utterly unable to put an end to those crimes while at the same time refusing to call upon or to allow other States or international organization to enter the territory to assist in terminating the crimes 3. 7. Armed force is exclusively used for the limited purpose of stopping the atrocities and restoring respect for human rights 7. or as a threat of collective counter-measures involving armed force. Under certain strict conditions. no solution can be agreed upon by the parties to the conflict 5. Raid of Entebee in Uganda b. and then calls for or authorizes an enforcement action to put an end to these violations. State keeps its own vessels for fear that it might find their way in foreign territory pacific embargo c. Security Council is unable to take any coercive action to stop it because of disagreement among the Permanent Members or because one or more of them exercises its veto power 4. resort to armed force may gradually become justified. any attempt at legal justification will ultimately remain unsatisfactory 5. A group of States decides to try to halt the atrocities. recourse to Art.4. with the support or at least the non-opposition of the majority of Member State of UN 6. All peaceful avenues have been exhausted. Gross and egregious breaches of human rights involving loss of life of hundreds or thousands of innocent people. notwithstanding which. 6. even absent any authorization by the Security Council Ex Injuria Oritur Jus Antonio Cassese Conditions: 1. If the Security determines that massive violations of human rights occurring within a country constitute a threat to the peace. Such crimes against humanity result from anarchy in a sovereign State. Seizure of vessels even in the high seas b. Embargo o A lawful measure o Consists of: a. Scope for abusing such a right argues strongly against its creation Whether we regard the NATO threat employed in the Kosovo crisis as an ersatz humanitarian intervention. US intrusion into Stanleyville to rescue American students Humanitarian Intervention The prohibition in Art. The UN and the Use of Force: Legal Aspects Bruno Simma Certain points on Humanitarian Intervention a. 51 is not available Reasons for the majority legal opinion against the existence of a right of Humanitarian Intervention: 1. State practice provides only a handful of genuine cases of humanitarian intervention 3. UN Charter and the corpus of modern international law do not seem to specifically incorporate such right 2. a humanitarian intervention by means of military is permissible b. Use of force must be commensurate with and proportionate to the human rights exigencies on the ground Protection of Nationals Abroad Right to defend nationals abroad is an aspect of the right to self-defense since population is an essential element of Statehood Examples of forcible rescue of nationals a. When humanitarian crises do not transcend borders and lead to armed attacks against other States. 2(4) is now considered jus cogens Prevailing opinion: intervention without the authorization of the Security Council violates international law 叶清蓮 & DSP Public International Law P a g e | 31 . and amounting to crimes against humanity 2. Seizure of import of drugs or of oil collective embargo Boycott o A form of reprisal which consists of suspension of trade or business relations with the nationals of an offending State Non-intercourse o Suspension of all commercial intercourse with a State Pacific Blockade o Naval operation carried out in time of peace whereby a State prevents access to or exit from particular ports or portions of coast of another State o Purpose: compel a State to yield to demands by the blockading State NATO.
the actual power to make war is lodge in the executive The commencement of hostilities result in the severance of all normal relations. 26 Countries met at The Hague and promulgated Conventions and Declaration which adopted the principles constituting the law of armed conflict. Civilians 叶清蓮 & DSP Public International Law . Wounded. including treaties. governing land and naval warfare GENEVA CONVENTIONS OF 1949 Essence: persons not actively engaged in warfare should be treated humanely o Geneva ―Red Cross‖ Conventions a. by means of a a. CUSTOMARY and CONVENTIONAL LAW What is embodied in Hague and Geneva Conventions are customary law o Thus. except treaties of a humanitarian character Nationals of a combatant State residing in enemy territory become subject to restrictions which the enemy might impose subject to limitations found in customary or treaty law Merchant vessels found in enemy territory are given a period of grace to depart Laws of armed conflict remain in effect until the conflict is terminated. Prisoners of War d. non-parties are still covered Commencement and Termination of Hostilities Under Hague Convention III. Petersburg: o The only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of this enemy o This object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men. does not end the conflict but only puts an end to the active fighting Protocol I International armed conflict includes armed conflicts in which peoples are fighting against a. in the absence thereof. peace treaty b. Sick and Shipwrecked at Sea c.CHAPTER 15 THE LAW OF WAR INTERNATIONAL HUMANITARIAN LAW Previously known as Laws of War a. Humanitarian considerations dictate the need for rules which curtail violence beyond what is necessary to achieve a State’s goal c. 2(4) of the UN Charter: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. or in any other manner inconsistent with the Purposes of the United Nations. Colonial denomination b. Racist regimes Those engaged in such conflict receive combatant status and are entitled to combatant rights o Instead being treated as ordinary criminals when captured. for an armed conflict to be considered a war. Wounded and Sick in the Field b. or render their death inevitable P a g e | 32 The above provisions outlaws war The paradox is that side by side with the prohibition of armed conflict is the proliferation of laws of war o 3 facts which explain the paradox: a. Those who resort to the use of arms do not give up until they have achieved victory b. There still remains in the hearts of the soldiery an acceptance of chivalry as a value On the assumption that wars can always occur. Law of the Hague. Regulates the conduct of armed conflict – jus in bello Early international law did not consider as illegal a war admittedly waged for the purpose of gaining political or other advantages over another State Art. there arose the need to formulate laws that can humanize the conduct of war THE HAGUE LAW In 1899. the hostilities should be preceded by a declaration of war or an ultimatum with a fixed limit While the Constitution gives to the legislature the power to declare the existence of a state of war and to enact all measures to support the war. they are treated as prisoners of war METHODS OF WARFARE: JUS IN BELLO Declaration of St. Alien occupation c. by declaration made by the combatant states that hostilities have come to an end Armistice – an agreement to suspend hostilities. whether local or general. Provides for instances when the use of armed force is justifiable – jus ad bellum b.
Passing of sentences and carrying out of executions without previous judgment pronounced by a regular court International Committee of the Red Cross – an impartial humanitarian body Protocol II The first and only international agreement exclusively regulating the conduct of parties in a non-international armed conflict International armed conflict – that which takes place in the territory of a Contracting Party between its armed forces and dissident armed forces or other organized armed groups which Material Field of Application: a. mutilation. Obligation to distinguish between combatants and civilians b. Customary rule prohibiting the use of chemical weapons. Prohibition of attacks against the civilian population as such or against individual citizens c. Violence like murder of all kinds. projectiles or material calculated to cause unnecessary suffering‖ There is a need to balance military necessity and humanitarian consideration Outside help for governments experiencing rebellion is legitimate provided requested by the government Aid to rebels is contrary to international law Legality of the Threat or Use of Nuclear Weapons (ICJ 1996) Cardinal Principles constituting the Fabric of Humanitarian Law: 1. cruel treatment and torture b. Death or serious bodily injury to any person b. Soldier’s Rules a. The Hague Convention prohibits the employment of ―arms. Taking of hostages c. Armed dissidents must be under responsible command b. Prisoners of war must be treated humanely and are bound to give only information about their identity c. Serious damage to a State or Government Facility with the intent to cause extensive destruction Attack on WTC on 9-11 was characterized as Crime against Humanity through the atrocious character exhibited by the act: its magnitude. States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets 2. Fight only enemy combatants and attack only military objectives b. poison as means of warfare. It is forbidden to kill or injure an enemy who surrenders or is hors de combat 3. Non-International Armed Conflicts a. persons should still be accorded a minimum humanitarian protection Prohibited acts: a. 2. It is prohibited to cause unnecessary suffering to combatants INTERNATIONAL COMMISSION ON RED CROSS Basic Rules Governing Armed Conflicts: 1. gravity. religious or ideological cause Draft of an International Convention for the Suppression of the Financing of Terrorism: o Any person commits an offense of terrorism if he does an act intended to cause: a. Outrages on human dignity d. and booby-traps NEUTRALITY To adopt an attitude of impartiality towards the belligerents Such attitude must be recognized by belligerents and creates both rights and duties in the neutral states Neutrals must not engage in activities which interfere with the activities of the belligerents NON-INTERNATIONAL CONFLICTS Civil wars or rebellion do not violate international law International law on armed conflict does not apply to internal conflicts 叶清蓮 & DSP Common Article 3 In case of armed conflict not of an international character. Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts a. bullets which expand or flatten easily in the human body. They must ―exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol INTERNATIONAL TERRORISM There is no crime terrorism in Philippines statute books but some acts are considered terroristic and are independently punished by the RPC Terrorism Act (British Law) – violent moves against person or property or against public health and safety which have for their purpose to influence the government or to intimidate a section of the public or to advance a political. Respect other’s property. Looting is prohibited. targeting of civilians P a g e | 33 Public International Law . Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and moral and physical integrity b.
they do not have the force of law 1. Convention on Biological Diversity Regional Treaties a. at the relevant level States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States Warfare is inherently destructive of sustainable development WHO HAVE ENVIRONMENTAL RIGHTS? Persons capable of having rights Minors pleading for intergenerational protection (Factoran case) SUSTAINABLE DEVELOPMENT A concept adopted by the World Commission on Environment and Development This encourages development in a manner and according to methods which do not compromise the ability of future generation and other States to meet their needs EMERGING PRINCIPLES The following are only declarations. land. and he bears a solemn responsibility to protect and improve the environment for present and future generations Natural resources of the earth. The protection of the environment is now also a concern of international law a. must be safeguarded Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat The struggle of the peoples of ill countries against pollution should be supported States shall take all possible steps to prevent pollution of the seas 叶清蓮 & DSP Some Treaties a. Vienna Convention for the Protection of the Ozone Layer – the layer of the atmospheric ozone above the planetary boundary layer b. water. flora and fauna and especially representative samples of natural ecosystems. in an environment of a quality that permits a life of dignity and well-being. Art. land. Protocol on Environmental Protection to the Antarctic Treaty d. Treaty of Rome b. Preservation of the cultural heritage of mankind The protection of the environment is a vital part of contemporary human rights doctrine. equality and adequate conditions of life. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. flora and fauna b. including the air. Protection of the atmosphere. for it is a sine qua non for numerous human rights such as the right to health. Amazon Declaration Public International Law P a g e | 34 . and the right to life itself Resources should be made available to preserve and improve the environment Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries on an equal footing Man and his environment must be spared the effects of nuclear weapons and all other means of mass destructions 2. North American Agreement on Environmental Cooperation c.o The importance of this characterization is that it led to what seems to be a development in the international law of self-defense Self-defense – legitimate response to an armed attack by a State CHAPTER 16 INTERNATIONAL ENVIRONMENTAL LAW ENVIRONMENTAL CONCERNS Sec. Kyoto Protocol – protection of the atmosphere d. 2 of the Constitution. UN Conference on Environment and Development – stabilization of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system c. the sea. Stockholm Declaration Man has fundamental right to freedom. Convention on International Trade in Endangered Species of Wild Fauna and Flora e. environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it The special situation and needs of developing countries shall be given special priority Environmental issues are best handled with the participation of all concerned citizens. 16. Rio Declaration Human beings are at the center of concerns for sustainable development States have the sovereign right to exploit their own resources In order to achieve sustainable development.
Products of prison labor e. artistic or archaeological value f. Angara] Dispute Resolution Body Established by the WTO agreement Consists of General Council of the WTO Operates under the Understanding on Rules and Procedures Governing the Settlement of Disputes 1994 a. Security exceptions 3. To create a global framework designed to minimize economic conflicts International Monetary Fund o Function: to provide short-term financing to countries in balance of payments difficulties International Bank for Reconstruction and Development [World Bank] o Provide long-term capital to support growth and development International Trade Organization (ITO) o Promote a liberal trading system by proscribing certain protectionist trade rules o ITO General Agreement on Tariff and Trade (GATT) World Trade Organization (WTO) WTO o Oversees the operation of GATT and a new General Agreement on Trade and Services Key Principles of International Trade Law 1. Agreed Tariff Levels o GATT contains specified tariff levels for each State o However. countervailing duties and atidumping International Economic Law affects the sovereignty of States and their capacity to give force to national policy objectives Public International Law P a g e | 35 . It is intertwined with municipal law 3. these can be re-negotiated 2. 4. Strengthening of the rules on subsidies. General exceptions a. Vessels c. Exceptions for developing nations [Tanada v. It provided for a permanent Appellate Body consisting of persons with recognized expertise in law Expanding Scope of International Economic Law Uruguay Round of 1994 expanded the scope of the multilateral trade regime It includes: a. Public morals b.CHAPTER 17 INTERNATIONAL ECONOMIC LAW What is International Economic Law? In its broadest sense includes all international law and international agreements governing economic transactions that cross state boundaries or that otherwise have implications for more than one state o Those involving the movement of a. Principle of National Treatment o Prohibits discrimination between domestic producers and foreign producers o Once foreign producers have paid the proper border charges. Investment e. Aircraft d. Most Favored Nation Principle o Embodies the principle of non-discrimination o Any special treatment given to a product from one trading partner must be available for like products originating from or destined for other contracting partners o Tariff concessions 叶清蓮 & DSP 3. Intangibles Characteristics: 1. Currency protection d. Goods e. Protection of exhaustible natural resources 2. Intellectual property b. Sanitary and physiosanitary measures d. Public health c. It is part of public international law o Treaties alone make this so 2. To advance the reduction of tariffs and other trade barriers 2. It requires multi-disciplinary thinking 4. Technology b. Funds f. Services c. National treasures of historic. Each State has a right to establish a Panel b. no additional burdens may be imposed on foreign products Principle of Tariffication o Prohibits the use of quotas on imports or exports and the use of licenses on importation or exportation o Purpose: to prevent the imposition of non-tariff barriers o Exception: GATT provides for a quantitative and temporary basis for balance of payments or infant industry reasons in favor of developing states Exceptions to Key Principles 1. Persons g. Regional Trade exceptions 4. Empirical research is very important for understanding its operation Important Economic Institutions Objectives of the Bretton Woods Conference of 1944: 1.