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13533779 PIL Finals Reviewer 2009B

13533779 PIL Finals Reviewer 2009B

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Public international law Finals reviewer PROF.

HARRY ROQUE

I. IN GENERAL1 How is international law defined in the light of developments in international legal relations since the end of the Second World War? International law is a body of legal principles, norms and processes which regulates the relations of States and other international persons, and governs their conduct affecting the interests of the international community as a whole. II. SOURCES OF INTERNATIONAL LAW
Art. 38, ICJ Statute: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Article 53, 1969 Vienna Convention on Treaties Treaties conflicting with a peremptory norm of general international law (“jus cogens”) - A treaty is void if, at the time of its conclusion, it conflicts with a What are the sources international law. For the purposes of peremptory norm of general of international law? the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation

Sources of law refer to norms derived from international conventions or treaties, customs, and general principles of law. The distinctive character of these norms is that they are created, or they acquire binding effect through the methods pointed above. Treaty and custom are the primary sources of international law. While a treaty is a legal instrument which constitutes a material source of norms, treaty- making is a norm- creating process, a method of formalizing the consent of States by which they intend to be bound by the treaty. The formation of custom is as well as a norm- creating method. A formal source of customary norms. A number of writers have distinguished formal sources from material sources of international law. What is the distinction? Formal sources consist of the methods and procedures by which norms are created, and material sources are the substantive evidence of the existence of norms. A rule, for example, will be considered legally binding as customary norm or custom on account of the process or method by which it was created through the formation of general practice accepted as law. Hence, custom as a norm- creating process is a formal source of law. Its content in terms of state practice arising from a sense of legal duty is its material source. The material sources supplies the substance of the rule to which the formal sources gives the force and nature of law. What are the elements of international custom? The elements of custom or customary international norm are : 1. general practice, characterized by uniformity and consistency 2. opinion juris sive necessitates, or recognition of the practices that are legally binding State practice as an element of customary law must be “both extensive and virtually uniform”.(North Sea Case) Some degree of uniformity is required. (Anglo- Norwegian case) In the Asylum case, it considers general practice as “constant and uniform usage practised by States in question.” But in any event, universality of practice is not required. Repetition of practice or actions of states is necessary. A customary norm of international law arises in consequence of the repeated action of states. The element of repetition is basic to the formation of a rule

As identified in Article 38(1) of the ICJ Statute, these sources are as follows: a. international conventions, whether general or particular, establishing rules expressly recognized by contesting States; b. international custom, as evidence of a general practice accepted as law; and c. the general principles of law recognized by civilized nations.
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of conduct. In the majority of instances the repetition of specific actions in analogous situations can lead to the consolidation of such practice as a rule of conduct. According to Judge Hudson: “elements which must be present before a principle of international custom can be found to be established”: a. concordant practice by a number of states with reference to a type of situation falling within the domain of international relations b. continuation or repetition of the practice over a considerable period of time c. conception that the practice is required by or consistent with prevailing international law d. general acquiescence in the practice by other states. How is opinion juris understood? In the formation of international law norms through custom, States create law by what they do in practice or by their conduct. Opinio Juris means that in doing so, they must believe that the practice or conduct is obligatory. They do so for the reason that the practice is required by law, and not merely because of courtesy or political expediency. Are judicial decisions and teaching of publicists sources of international law? They are not sources of law as such. They are merely “subsidiary means for the determination of rules of law”. They are regarded as evidence of norms of international law. They are the means by which the rules of law may be verified. In other words, they may be regarded as evidence of law. What is a jus cogens norm? A jus cogens or peremptory or is a norm which States cannot derogate or deviate from in their agreements. It is a mandatory norm and stands on a higher category than a jus dispositivum norm which States can set aside or modify by agreement. In general, how do norms of international law come into being? They are created by States through definite norm- creating methods accepted or recognized by them as means of expressing their consent as to the binding effect of those norms. Hence, international law is based on their normative consent.

The methods of creating or recognizing norms are referred to as sources of law. By means of treaty or convention and custom, States create or recognize norms as binding law. Norms created by treaty are on the whole called conventional international law; those by custom are called customary international law. Kuroda v. Jalandoni (1949) Kuroda, the commanding General of the Japanese Imperial Forces in the RP during WWII, was charged before the AFP formed Military Commission, for having unlawfully disregarded and failed “to discharge his duties as such commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Japanese Forces, in violation of the laws and customs of war.” Kuroda contests the legality of of Executive Order No. 68 which established the National War Crime Office to prosecute those who have offended war crimes. Kuroda argues that since the Philippines is not a signatory to the Hague Convention on Rules and Regulations covering Land Warfare, he is charged of ‘crimes’ not based on law, national and international.” RP Consti. adopts the generally accepted principles of international law as part of the law of the nation. EO68 and prescribing rules and regulations governing the trial of accused war criminals is valid and constitutional since Art. 2 of our Constitution provides in its section 3, that “The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation.” So even without local legislation, the Constitution has provided for the application of international law. The rules & regulations of the Hague, Geneva Conventions form part of & are wholly based on the generally accepted principles of international law. Even if RP is not a signatory to the Hague Conv. and signed the Geneva Conv. only in 1947, it can’t be denied that the rules and regulations of the Hague and Geneva conv. form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the 2 belligerent nations, US and Japan, who were signatories to the 2 Conventions. Such rules and principles, therefore, form part of the law of our nation even if RP was not a signatory to the conventions embodying them, for our Consti has been deliberately general and extensive in its scope and is not confined to the recognition of rules

and principles of international law as contained in treaties to which our government may have been or shall be a signatory. Yamashita v. Styer (1945) Yamashita was the former commanding general of the Japanese Imperial Army in the Philippines, and now charged before an American Military Commission with the most monstrous crimes ever committed against the Americans and Filipinos. This is his petition for habeas corpus and prohibition. Yamashita contends that the MC was not duly constituted, and, therefore without jurisdiction and that there is against him no charge of an offense against the laws of war. The Court held that his petition for habeas corpus is untenable since he seeks no discharge from confinement but merely his restoration to his former Prisoner of War status. Likewise, his petition for prohibition can neither prosper since the MC is not made party respondent in this case. PERFECTO, J., concurring and dissenting: International law (in particular IHL) evolved from custom & practice throughout history. Many of the basic ideas which prevail today in the customs and usages of nations and became part of the international law emerged from the human mind centuries before the Christian Era. Such is the idea that prisoners of war are entitled to humane treatment, that treasons of war should be discountenanced, and that belligerents must abstain from causing harm to non-combatants. RP is bound to comply with established rules in treating war criminals. Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable natural urge for improvement, by the unquenchable thirstiness of perfection in all orders of life, humanity has been struggling during the last two dozen centuries to develop an international law which could answer more and more faithfully the demands of right and justice as expressed in principles which, weakly enunciated at first in the rudimentary juristic sense of peoples of antiquity, by the inherent power of their universal appeal to human conscience, at last were accepted, recognized, and consecrated by all the civilized nations of the world. Under these principles, Yamashita is entitled to be accorded all the guarantees, protections, and defenses that all prisoners should have, according to the customs and usages, conventions and treaties, judicial decisions and executive pronouncements, and generally accepted opinions of thinkers, legal philosophers and other expounders of just rules and principles of international law. The seriousness or unfathomable gravity of the

charges against him must not be taken into consideration in order that true justice may be administered in this case. Nicaragua v. US (1986) Nicaragua filed an Application instituting proceedings against the US in respect of a dispute concerning responsibility for military and paramilitary activities in and against Nicaragua (mining of ports, air space infringement, support to the contras, economic measures). Nicaragua contends that the US, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua, has violated and is violating its express charter and treaty obligations to Nicaragua, and in particular the UN Charter, the Charter of the Organization of American States, the Convention on Rights and Duties of States, and the Convention concerning the Duties and Rights of States in the Event of Civil Strife. The US declaration of acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute contained a reservation excluding from operation of the declaration: "disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction". Invoking its multilateral treaty reservation, US argues that adjudication of claims based on those treaties (i.e. UN Charter, OAS Charter) is barred. Thus the effect of the reservation in question is not merely to prevent the ICJ from deciding upon Nicaragua's claims by applying the multilateral treaties in question; it further prevents it from applying in its decision any rule of customary international law the content of which is also the subject of a provision in those multilateral treaties (that all principles of customary and general international law are barred, as these are subsumed and supervened by the provisions of the UN Charter.) The Court held that such acts of the US constitute breaches of obligations under customary international law not to intervene in the affairs of another state, not to use force against another state, not to violate the sovereignty of another state. Customary law operates independently of treaty law. It rather demonstrates that in the field in question, customary international law continues to exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content. But even if the customary norm and the treaty norm were to have exactly the same content, this would not be

Opinio juris can be deduced from attitude of states toward certain GA resolutions. A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2 of the UN Charter of may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. for a rule to be established as customary. if that rule parallels a rule of customary international law. not as indications of the recognition of a new rule. especially those of an institutional kind. Bound as it is by Art. but defends its conduct by appealing to exceptions or justifications contained within the rule itself. The principle of nonuse of force. it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. one of them may argue that the applicability of a treaty rule to its own conduct depends on the other State's conduct in respect of the application of other rules. Rules which are identical in treaty law and in customary international law are also distinguishable by reference to the methods of interpretation and application. it is exempted. In a legal dispute affecting two States. the Court may not disregard the essential role played by general practice. for example. in general. to be thenceforth treated separately from the provisions. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice. Court must make a determination of state practice & opinio juris. There are a number of reasons for considering that. though with all due caution.e. the significance of that attitude is to confirm rather than to weaken the rule. A State may accept a rule contained in a treaty not simply because it favors the application of the rule itself. these norms retain a separate existence. the "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN". If a State acts in a way prima facie incompatible with a recognized rule.a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm. This opinio juris may. two rules of the same content are subject to separate treatment as regards the organs competent to verify their implementation. may thus be regarded as a principle of customary international law. It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of rules). Thus. from a rule of treaty-law because of the breach by that other State of a different rule of treaty-law. if a State exercises its right to terminate or suspend the operation of a treaty on the ground of the violation by the other party of a "provision essential to the accomplishment of the object or purpose of the treaty". For example. not as such conditioned by provisions relating to collective security. Recognition that a rule is fundamental or a jus cogens establishes CIL. the failure of the one State to apply the one rule does not justify the other State in declining to apply the other rule. The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. to which it is subject on the treaty-law plane of the Charter. the corresponding practice must be in absolutely rigorous conformity with the rule. and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law. 38 of its Statute to apply international custom "as evidence of a general practice accepted as law". even if two norms belonging to two sources of international law appear identical in content. or to the facilities or armed contingents to be provided under Article 43 of the Charter. be consistent with such rules. This is so from the standpoint of their applicability. then whether or not the State's conduct is in fact justifiable on that basis. the shared view of the Parties as to the content of what they regard as the rule is not enough. vis-a-vis the other State. In order to deduce the existence of customary rules. The Court does not consider that. But if the two rules in question also exist as rules of customary international law. be deduced from the attitude of the Parties and the attitude of States towards certain General Assembly resolutions. i. Nicaragua in its Memorial on the Merits states that the principle prohibiting the use of force embodied in Article 2 "has come to be recognized as jus cogens" (jus cogens: a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted . but also because the treaty establishes what that State regards as desirable institutions or mechanisms to ensure implementation of the rule. the Court deems it sufficient that the conduct of States should. depending on whether they are customary rules or treaty rules. Conduct of a state must be consistent with the rule. on other subjects. On the contrary. also included in the same treaty. In the field of customary international law. and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule.

) The US. Without attempting to enter into. 6. – Art. 6. and therefore as having an a priori character of so to speak juristic inevitability. The boundary should be determined “on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast and of the principle that the boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than to the coast of the other Party. then “the boundary between them is to be determined by the application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. still less pronounce upon any question of jus cogens. and that where the parties were in disagreement as to the boundary and special circumstances did not justify another boundary. direct or indirect. Vienna Convention. The Court does not agree… Provision should be norm-creating. 2. a "universal international law".-the claim being that these various factors have cumulatively evidenced or been creative of the opinion juris sive necessitatis. In its fundamentalist aspect. partly because of its own impact. and not at all de lege lata or as an emerging rule of customary international law. or must now be regarded as involving. requisite for the formation of new rules of customary international law. The Court notes that the principle of equidistance. delimitation should be governed by the principle of Art. on State practice and on the influence attributed to the Geneva Convention itself. Art. be derogated from in particular cases. In considering the equidistance method. this must be open to some doubt. in practice. is binding on Germany automatically and independently of any specific assent. somewhat on an experimental basis. 6. no rule of CIL in favor of the equidistance principle and no such rule was crystallized in Art. had not become customary international law and was not under the circumstances the appropriate method. par. Yet in the particular form in which it is embodied in Art. paragraph 2.and. causing it to come after a primary obligation to effect delimitation by agreement. Germany proposed that delimitation of the continental shelf between the parties is governed by the principle that each coastal State is entitled to a just and equitable share. given by the latter. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. 6 is so framed as to put 2ND the obligation to make use of the equidistance method. a "universally recognized principle of international law". was proposed by the ILC with considerable hesitation. in the sense that the equidistance principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State. a rule that is part of the corpus of general international law. rules of international law can.and which can be modified only by a subsequent norm of general international law having the same character. 53. at all events potentially. at most de lege ferenda (ideal norm). of the Continental Shelf Convention. This is clearly not the sort of foundation on which Art. at the date of the Geneva Convention on the Continental Shelf. and having regard to the relationship of that Article to other provisions. 6. As a matter of positive law. and certainly no priority. In the first place. It would be necessary that the provision should.” Germany contents that making use of the equidistance method of Article 6. This contention has both a positive law and a more fundamentalist aspect. the view put forward derives from what might be called the natural law of the continental shelf. As for Denmark and the Netherlands. North Sea Continental Shelf Cases (1969) Denmark. as it now figures in Art. in its Counter-Memorial on the questions of jurisdiction and admissibility. by agreement. The equidistance method could not be used where it would not achieve a just and equitable apportionment of the shelf. Denmark & Netherlands further argues that even if. and a "principle of jus cogens".- . partly on the basus of subsequent state practice. 6 of the Convention could be said to have reflected or crystallized such a rule. The Court does not agree with the contentions of Netherlands and Denmark. found it material to quote the views of scholars that this principle is a "universal norm". the International Law Commission's discussions reveal that not only was the notion of equidistance never considered from the standpoint of its having a priori a character of inherent necessity: it was never given any special prominence at all. or as between particular parties. it is well understood that. Germany and the Netherlands have submitted to the Court certain differences concerning 'the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them. it is based on the work done in this field by international legal bodies. such a rule has come into being since the convention. Considered in abstracto the equidistance principle might be said to fulfill this requirement. but is. be of a fundamentally normcreating character such as could be regarded as forming the basis of a general rule of law. The Court is requested to decide what are the applicable 'principles and rules of international law'.” Netherlands and Denmark argue that the use of this method is not in the nature of a merely conventional obligation. like other rules of general or customary international law.

that its failure to do so is in violation of its obligations as stated in the second paragraph of Article 2 of the Mandate and Article 22 of the Covenant. It had been attempted to derive a legal right or interest in the conduct of the Mandate from the simple existence. seem to deny to the provisions of Art. The principles set forth here have been obliterated in latter cases. Widespread & representative participation in the convention including specially affected states. Art. 1966) Southwest Africa (SWA) contends that South Africa. the faculty of making reservations to Art.. 1 and 2 possess. The Applicants tried to derive a legal right or interest in the conduct of the Mandate for South West Africa from the simple principle of the “sacred trust”.but this is not normally the subject of any express provision. But in order that this interest might take on a specifically legal character the sacred trust itself must be or become something more than a moral or humanitarian ideal. a very widespread and representative participation in the convention might suffice of itself. 6. for instance. or of itself. 6 the same norm-creating character as. an indispensable requirement would be that within the period in question. and is not the subject of any revision brought about in consequence of a request made under Art. even without the passage of any considerable period of time. *Sir: This is a legal challenge brought by Ethiopia & Liberia against South Africa WRT the practice of apartheid (although never mentioned here!!) The action is based on the mandate given to South Africa to promote the material & moral well-being & social progress of inhabitants of the South West African territory. Although the passage of only a short period of time is not necessarily. short though it might be. their work deals with customary norms. and the very considerable. and that the Union has the duty forthwith to cease the practice of apartheid in the Territory. State practice. does add considerably to the difficulty of regarding this result as having been brought about (or being potentially possible) on the basis of the Convention: for so long as this faculty continues to exist. it was said was a "sacred trust of civilization" and hence all civilized nations had an interest in seeing that it was carried out. Secondly the part played by the notion of special circumstances relative to the principle of equidistance as embodied in Art. In order to generate legal rights and obligations. Court can only rule on legal rights/obligations. or principle. social and educational policies applied within SWA has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory. including that of States whose interests are specially affected. provided it included that of States whose interests were specially affected. 6. still unresolved controversies as to the exact meaning and scope of this notion. and that the Union has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfill its duties under such Articles. The sacred trust. Passage of time immaterial in the formation of a new rule of CIL. so far as any particular mandate is concerned. operate per se to give rise to legal rights and obligations outside the system as a whole. of the "sacred trust". a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule. must raise further doubts as to the potentially norm-creating character of the rule. political. has distinguished as to race. for the reasons already indicated. by virtue of the economic. national or tribal origin in establishing the rights and duties of the inhabitants of the Territory. Since. * Sir: The ILC composed of experts is created by the UN GA to codify CIL. 13-of which there is at present no official indication-it is the Convention itself which would. Southwest Africa Case (2nd Phase. Furthermore. while it might not of itself prevent the equidistance principle being eventually received as general law. Finally. The Court did not decide on the merits because it did not consider the case as involving a legal issue because there was no law prohibiting apartheid. Regarded necessary before a conventional rule can be considered to have become a general rule of international law might be that. should have been both extensive and virtually uniform in the sense of the provision invoked. The principle of the "sacred trust" had no residual juridical content which could. their drafts/works are subsidiary means of discovering CIL.-and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. Fundamental equality is now considered an erga omnes . South Africa. exercising administrative powers over the their territory by virtue of a mandate practiced apartheid. 6. color. that such practice is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations. it must be given juridical expression and be clothed in legal form. The moral ideal must not be confused with the legal rules intended to give it effect.e. as it is in Art. i.

paragraph 2. and furthermore. as the territorial State. The tyrannical intolerance of said dictatorships toward all opposition induced them to resort to beastly oppression. such as the Montevideo Conventions of 1933 and 1939. can have no bearing on the question now under consideration. declarations or intention to become a Fil. of the Convention on Asylum. much less to the present Government of the land of his birth to which he is uncompromisingly opposed. therefore. The records of the Bureau of Justice. contends that the grant of asylum by the Colombian Ambassador at Lima to Haya de la Torre was made in violation of Article 1. What constitutes a stateless refugee. concentration camps and blood purges. citizen is sufficient to grant citizenship. The Convention of 1933 have. which refers to international custom “as evidence of a general practice accepted as law. the Colombian Government has referred to a large number of extradition treaties which. It has invoked conventions which have not been ratified by Peru. accompanied with supporting affidavits of 2 citizens. is supported by the well-known fact that the ruthlessness of modern dictatorship has scattered throughout the world a large number of stateless refugees or displaced persons. Appellant's contention that attachment of the certificate . paragraph 1." Custom = constant uniform usage. besides being uncontradicted. But due to the Japanese invation. 1950) Colombia cotends as the country granting asylum that it is competent to qualify the offence for the purpose of the said asylum. in fact. with due regard to the inviolability of his person. copy of a sworn declaration of intention and proper notice of the hearing.obligation since it is a fundamental human right. and the Convention on Asylum. He is not suffering from any mental alienation or incurable contagious disease. The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Solicitor General (1948) (to be read in connection with the asylum case) Kookooritchkin. a former Russian citizen. Asylum Case – Haya Dela Torre (Columbia/Peru. had been lost or destroyed during the battle for the liberation of Manila. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question. Neither is he a polygamist or a believer in the practice of polygamy. and Article 2. Peru. the case was suspended and the documents presented were destroyed. as already explained. filed a petition for naturalization. where the declarations of intention to become a Filipino citizen were filed. Certificate of arrival not essential. Appellee's testimony. The limited number of States which have ratified this Convention reveals the weakness of this argument. He disclaims allegiance to the present Communist Government of Russia. within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition. been ratified by not more than eleven States and the Convention of 1939 by two States only. & it is only natural that the not-so-fortunate ones who were able to escape to foreign countries should feel the loss of all bonds of attachment to the hells which were formerly their fatherland's. belonging to no State. This follows from Article 38 of the Statute of the Court. Although a Russian by birth he is not a citizen of Soviet Russia. & the certificate alluded to has not been reconstituted. It is particularly the Montevideo Convention of 1933 which Counsel for the Colombian Government has also relied on in this connexion. Petitioner belongs to that group of stateless refugees. and of American international law in general and that Peru. He is not against organized government or affiliated with any association which upholds and teaches doctrine opposing all organized governments. is bound in the case now before the Court to give the guarantees necessary for the departure of Haya de la Torre from the country. The case was reconstituted after the war and a resolution was eventually issued granting the petition. a stateless refugee in this country. personal assault or assassination for the success or predominance of his ideas. and that it is valid against Peru as a proof of customary law. It is contended that this Convention has merely codified principles which were already recognized by Latin-American custom.” In support of its contention concerning the existence of such a custom. without country and without flag. He is. it is invalidated by the preamble which states that this Convention modifies the Havana Convention. He does not believe in the necessity or propriety of violence. on the other hand. It has cited conventions and agreements which do not contain any provision concerning the alleged rule of unilateral and definitive qualification such as the Montevideo Convention of 1889 on international penal law. Kookooritchkin V. and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. item I (inciso primera). the Bolivarian Agreement of 1911 and the Havana Convention of 1928.

France) Case (1995) The Court handed down its decision that New Zealand's Request for an Examination of the Situation in accordance with Paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand v. a press conference given by the President of the Republic. The Court considers that these statements convey an announcement by France of its intention to cease the conduct of atmospheric nuclear tests following the conclusion of the 1974 series. The Court must. while recognizing the possibility of the dispute being resolved by a unilateral declaration on the part of France. the Court finds that the objective of New Zealand/Australia has in effect been accomplished. France. the dispute having thus disappeared. Nothing in the nature of a quid pro quo. It was bound to assume that other States might take note of these statements and rely on their being effective. . "does not fall within the provisions of the said paragraph 63 and must consequently be dismissed." Consequently. The proceedings instituted before the Court concerned the legality of atmospheric nuclear tests conducted by France in the South Pacific. In the present case. the possibility of further atmospheric tests has been left open. Samoa. inasmuch as France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific. Further statements are contained in a Note from the French Embassy in Wellington. including the Applicant. to cease the conduct of such tests.of arrival is essential to the validity of a declaration finds no support in the wordings of the law. It is well recognized that declarations made by way of unilateral acts. likewise had to be dismissed. France). The first element concerns the courses of procedure envisaged by the Court in . even after the French statements mentioned above. has announced its intention. the claim no longer has any object and there is nothing on which to give judgment. has stated that. as Sec. a letter from the President of France to the Prime Minister of New Zealand. made on 21 August 1995. New Zealand's request for provisional measures and the applications for permission to intervene submitted by Australia. nor any subsequent acceptance. may have the effect of creating legal obligations. however. the original and ultimate objective of New Zealand/Australia is to obtain a termination of those. Unilateral acts may have the effect of creating legal obligations. nor even any reaction from other States is required for such declaration to take effect. . 473 uses the words "has been issued. in view of the stage reached in carrying out the French nuclear defence programme France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed". 5 of Commonwealth Act no. the unilateral undertaking resulting from them cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. by various public statements made in 1974. France has conveyed to the world at large. Having regard to their intention and to the circumstances in which they were made. The binding character of the undertaking results from the terms of the act and is based on good faith interested States are entitled to require that the obligation be respected. Neither is the question of form decisive. following the completion of the 1974 series of atmospheric tests. the Marshall Islands and the Federated States of Micronesia as well as the declarations of intervention made by the last four States. but this does not affect the legal consequences of the statements in question. France)?". Nuclear Test Cases (1974) The Court has found that the claim of New Zealand/Australia no longer had any object and that the Court was therefore not called upon to give a decision thereon. all of which are proceedings incidental to New Zealand's main request. concerning legal or factual situations. they must be held to constitute an engagement of the French State. The Court limited the present proceedings to the examination of the following question: "Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. the first of these statements is contained in a communiqué which was issued by the Office of the President of the French Republic on 8 June 1974 and transmitted in particular to the Applicant: ". form its own view of the meaning and scope intended to be given to these unilateral declarations. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. the Applicant. In the Court's view that question has two elements. a speech made by the Minister for Foreign Affairs in the United Nations General Assembly and a television interview and press conference by the Minister for Defence. The intention of being bound is to be ascertained by an interpretation of the act. its intention effectively to terminate its atmospheric tests. With regard France’s declaration. Solomon Islands. It is true that France has not recognized that it is bound by any rule of international law to terminate its tests. in its view.

paragraph 63 of its 1974 Judgment. take account of the arguments derived by New Zealand. In its examination of that question the Court found in the first place that by inserting in paragraph 63 the abovementioned phrase. In Article 2. It is not possible for the Court now to take into consideration questions relating to underground nuclear tests. and that the Court cannot.and particularly the conclusion. in the nature of things. like the filing of a new application. and their ability to cause damage to generations to come. when it stated that "the Applicant could request an examination of the situation in accordance with the provisions of the Statute". since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and rules of international law. the Court must identify the existing principles and rules. It finally observes that its Order is without prejudice to the obligations of States to respect and protect the natural environment. interpret them and apply them to the threat or use of nuclear weapons. on the one hand from the conditions in which France has conducted underground nuclear tests since 1974. therefore. . The Court then addresses the question of the legality or illegality of recourse to nuclear weapons in the light of the provisions of the Charter relating to the threat or use of force. Nor are the political nature of the motives which may be said to have inspired the request or the political implications that the opinion given might have of relevance in the establishment of the Court's jurisdiction to give such an opinion. to be questions of a legal character". The Court notes that in order correctly to apply to the present case the Charter law on the use of force and the law applicable in armed conflict. and in particular their destructive capacity. The fact that this question also has political aspects. . And that. IHL. which would have been open to the Applicant in any event)." Constitutes a legal question. their capacity to cause untold human suffering. was not the case. particular treaties. as the basis of that Judgment was France's undertaking not to conduct any further atmospheric nuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have affected it. obligations to which both New Zealand and France have in the present instance reaffirmed their commitment Legality Of The Use Of A State Of Nuclear Weapons (1996) The Secretary-General of the United Nations officially communicated to the Registrar the decision taken by the General Assembly to submit a question to the Court for an advisory opinion: to request the International Court of Justice urgently to render its advisory opinion on the following question: 'Is the threat or use of nuclear weapons in any circumstance permitted under international law?'. thus offering a reply to the question posed based on law. the Court did not exclude a special procedure for access to it (unlike those mentioned in the Court's Statute. does not suffice to deprive it of its character as a "legal question" and to "deprive the Court of a competence expressly conferred on it by its Statute". In Article 51. The Court observes that it has already had occasion to indicate that questions "framed in terms of law and rais[ing] problems of international law . [and] appear . Unique characteristics of nuclear weapons: highly destructive. are by their very nature susceptible of a reply based on law . To do this. the Court found that that special procedure would only be available to the Applicant if circumstances were to arise which affected the basis of the 1974 Judgment. together with any specific treaties on nuclear weapons that the Court might determine to be relevant. however. and on the other from the development of international law in recent decades . In the light of the foregoing the Court concludes that the most directly relevant applicable law governing the question of which it was seised. Secondly. on 25 November 1986. . is the case with so many questions which arise in international life. The applicable law: UN charter. paragraph 4. is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities. in particular humanitarian law. of the Charter the use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is prohibited. This prohibition of the use of force is to be considered in the light of other relevant provisions of the Charter. or a request for interpretation or revision. . as.any more than of the arguments derived by France from the conduct of the New Zealand Government since 1974. it is imperative for it to take account of the unique characteristics of nuclear weapons. the other concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph 63 thereof. . of the Noumea Convention . the Charter recognizes the inherent right of individual or collective self- . It finds that the question put to the Court by the General Assembly is indeed a legal one. it found. . Provisions of the charter relating to the threat or use of force: not weapon specific.

The Court notes that the treaties dealing exclusively with acquisition. certainly point to an increasing concern in the international community with these weapons. Necessity & proportionality. of the Charter stand together in the sense that if the use of force itself in a given case is illegal . nor permits. no State . The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances. must. Rules on the lawfulness or unlawfulness of nuclear weapons as such. even within this framework. For the rest. As to the treaties of Tlatelolco and Rarotonga and their Protocols. a great many negotiations have been conducted regarding nuclear weapons. A further lawful use of force is envisaged in Article 42. The notions of "threat" and "use" of force under Article 2. . and also the declarations made in connection with the indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons.suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal. These provisions do not refer to specific weapons. possession. in the last two decades. including nuclear weapons. it emerges from these instruments that: (a) a number of States have undertaken not to use nuclear weapons in specific zones (Latin America. It concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons. and (c) these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties or from the Security Council. In short. (b) nevertheless. regardless of the weapons employed. they have not resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons. on the contrary.for whatever reason . without specifically addressing their threat or use. manufacture.the threat to use such force will likewise be illegal. The Charter neither expressly prohibits. International customary and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances. No treaty which expressly prohibits nukes. is formulated in terms of prohibition. in particular those of the exercise of legitimate self-defence. also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law. is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. the South Pacific) or against certain other States (non-nuclear-weapon States which are parties to the Treaty on the Non-Proliferation of Nuclear Weapons). The entitlement to resort to self-defence under Article 51 is subject to the conditions of necessity and proportionality. The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. It does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of certain provisions of the Second Hague Declaration of 1899. whereby the Security Council may take military enforcement measures in conformity with Chapter VII of the Charter.whether or not it defended the policy of deterrence . the use of any specific weapon. But at the same time. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but. a use of force that is proportionate under the law of selfdefence. and observes that. the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Geneva Protocol. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua: "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it. however. States sometimes signal that they possess certain weapons to use in selfdefence against any State violating their territorial integrity or political independence. deployment and testing of nuclear weapons.defence if an armed attack occurs. In order to lessen or eliminate the risk of unlawful attack. And the Court notes that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionality. but that they do not constitute such a prohibition by themselves. although. in order to be lawful. of the Charter depends upon various factors. But the Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction. paragraph 4. if it is to be lawful. a rule well established in customary international law". paragraph 4. Whether a signaled intention to use force if certain events occur is or is not a "threat" within Article 2. the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. the nuclear-weapon States have reserved the right to use nuclear weapons in certain circumstances. Nor. They apply to any use of force.

International humanitarian law. Martens clause. it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants. is applicable (subject to the relevant provisions of the United Nations Charter). These rules indicate the normal conduct and behaviour expected of States. In application of that second principle. which is of a fundamental character similar to that of the humanitarian principles and rules. because of the newness of the latter. has not been advocated in the present proceedings. in the Court's view.Cannot determine WON there’s opinio juris. which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. The principle of neutrality. paragraph 2. 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. have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognized humanitarian principles. States do not have unlimited freedom of choice of means in the weapons they use. However. The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict. to all international armed conflict. and requesting the member States to conclude a convention prohibiting the use of nuclear weapons in any circumstance. and there is a qualitative as well as quantitative difference between nuclear weapons and all conventional arms. a significant step forward along the road to complete nuclear disarmament. of resolutions recalling the content of resolution 1653 (XVI). the Court notes that nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence. it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris. Turning to the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons." The extensive codification of humanitarian law and the extent of the accession to the resultant treaties. those of the past. the Court observes that the cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. After sketching the historical development of the body of rules which originally were called "laws and customs of war" and later came to be termed "international humanitarian law". The emergence. According to the second principle. international law leaves no doubt that the principle of neutrality. reveals the desire of a very large section of the international community to take. A modern version of that clause is to be found in Article 1. The Court then turns to an examination of customary international law to determine whether a prohibition of the threat or use of nuclear weapons as such flows from that source of law. the Conferences of 1949 and 1974-1977 left these weapons aside. civilians and combatants remain under the protection and authority of the principles of international law derived from established custom. The Court also refers to the Martens Clause. and the still strong adherence to the doctrine of deterrence(in which the right to use those weapons in the exercise of the right to self-defence against an armed attack threatening the vital security interests of the State is reserved) on the other. which reads as follows: "In cases not covered by this Protocol or by other international agreements. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons. whatever its content. whatever type of weapons might be . by a large majority. It notes that the Members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the expression of an opinio juris. those of the present and those of the future. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry. as lex lata. of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand. It points out that the adoption each year by the General Assembly. by a specific and express prohibition of the use of nuclear weapons. of Additional Protocol I of 1977. as well as the fact that the denunciation clauses that existed in the codification instruments have never been used. from the principles of humanity and from the dictates of public conscience.

the Court noted. Another view holds that recourse to nuclear weapons. the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict. necessitates the co-operation of all States. By an ancient usage among civilized nations. According to one point of view. could never be compatible with the principles and rules of humanitarian law and is therefore prohibited. . and gradually ripening into a rule of international law. with their cargoes and crews. seen in a broader context. Holland. In these circumstances. The Court ordered that the decree of the District Court be reversed. does not necessarily mean that such recourse is as such prohibited.by adopting a particular course of conduct. that principle has therefore been considered by some to rule out the use of a weapon the effects of which simply cannot be contained within the territories of the contending States. or. in accordance with Article 51 of the Charter. Conclusions to be drawn from the applicability of international humanitarian law and the principle of neutrality. as a rule of international law. and the proceeds of the sale of the vessel. on the ground that. A similar view has been expressed with respect to the effects of the principle of neutrality. Obligation to negotiate nuclear disarmament. namely. any realistic search for general and complete disarmament. the use of such weapons in fact seems scarcely reconcilable with respect for the requirements of the law applicable in armed conflict. with damages and costs. international law.used. in view of the unique characteristics of nuclear weapons. the Court cannot lose sight of the fundamental right of every State to survival. in which its very survival would be at stake. are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons. and thus its right to resort to self-defence. coast fishing vessels. Also. to which the Court has referred above. and the US. The Paquete Habana (The Paquete Habana And The Lola) (1900) The Court held that the capture of the fishing vessel was unlawful and without probable cause. the obligation involved here is an obligation to achieve a precise result . It is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result. the Court considers that it needs to examine one further aspect of the question before it. to which an appreciable section of the international community adhered for many years. The legal import of that obligation goes beyond that of a mere obligation of conduct. Given the eminently difficult issues that arise in applying the law on the use of force and above all the law applicable in armed conflict to nuclear weapons. together with the proceeds of any sale of her cargo. Nor can it ignore the practice referred to as "policy of deterrence". Prussia. when its survival is at stake.nuclear disarmament in all its aspects . Accordingly. be restored to the claimant. in view of the present state of international law viewed as a whole. that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance. as examined by the Court. the Court appreciates the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament. fishing vessels are exempt from capture as a prize of war. The Court also noted cases in the past in different jurisdictions which decided the issue in the same light. The Court discussed the history of the custom exempting coastal fishers from capture beginning with King Henry IV’s orders to his admirals in 1403 to the relevant practices of France. the pursuit of negotiations on the matter in good faith. the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence. Indeed. The Court observes that. Ancient usage ripened to rule of international law. Like the principles and rules of humanitarian law. the vast majority of the international community. It considers nevertheless. and of the elements of fact at its disposal. pursuing their vocation of catching and bringing in fresh fish. and with it the stability of the international order which it is intended to govern. This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons. beginning centuries ago. legal writings and treatieses of legal experts and luminaries which provide for the exemption of fishing/commercial vessels. in view of the necessarily indiscriminate consequences of their use. Furthermore. from capture as prize of war. especially nuclear disarmament. have been recognized as exempt. in other words. In the long run.

In the present case two series of facts. and in 1947 in Washington before the Franco-Siamese Conciliation Commission. in its inception. they must be held to have acquiesced. Also. have to be considered. Corfu Channel Case (1949) A british destroyer vessel struck a mine and was gravely damaged while passing through the Corfu Channel in the territorial waters of Albania. The exclusive control exercised by a State within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. irrespective of its correspondence with the watershed line. the Court nevertheless concluded that. in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties. during the period they were signed. The map was never formally approved by the Mixed Commission. have been removed from the Temple or the Temple area by the Thai authorities. it would have been natural for Thailand to raise the matter: she did not do so. While there could be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector. The technique used by the court to establish the norm is through customary law and subsidiary means as evidence of the norm. The natural inference was that she had accepted the frontier at Preah Vihear as it was drawn on the map. however. stationed by her at the Temple. The other destroyer was sent to her assistance and. there were only very few countries. Even if there were any doubt in this connection. the acceptance of the Annex I map caused it to enter the treaty settlement. The first relates to the Albanian Government's attitude before and after the catastrophe. the Court considered that the interpretation to be given now would be the same. Thailand was precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. The maps were moreover communicated to the Siamese members of the Mixed Commission. can be considered as specially affected states. fragments of monuments. it had no binding character. Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. in that ease. was officially received there by the French Resident for the adjoining Cambodian province. or in its vicinity on Cambodian territory. the Parties had at that time adopted an interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and. which confirmed the existing frontiers. they could not now plead any error vitiating the reality of their consent.*Sir: The treaties which established the exemption of fishing vessels. which corroborate one another. stelae. linked together and leading logically to a single conclusion. to the Siamese Minister of the Interior. be allowed a more liberal recourse to inferences of fact and circumstantial evidence. since the date of the occupation of the Temple by Thailand in 1954. It was clear from the record. Allowance for admission of circumstantial evidence. The laying of the mines took place in a period in which it had shown its intention to keep a jealous watch on its territorial waters and in which it was requiring prior . the signatories being maritime nations. who said nothing. The Court held that Albania had breached its obligation under international law to notify states regarding the danger of passing through a body of water due to presence of mines in its territorial sea. Moreover. The State which is the victim must. Application of doctrines (general principles of law) of estoppel & acquiesence. which had ceased to function some months before its production. such indirect evidence must be regarded as of especial weight when based on a series of facts. the court concluded that Thailand had accepted the Annex I map. or other guards or keepers. either then or for many years. while towing her. when in 1930 Prince Damrong. in consequence. It also found that Thailand was under an obligation to restore to Cambodia any sculptures. that Thailand was under an obligation to withdraw any military or police forces. The Siamese Government and later the Thai Government had raised no query about the Annex I map prior to its negotiations with Cambodia in Bangkok in 1958. Preah Vihear Temple Case (1962) The Court held that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and. as there was no reason to think that the Parties had attached any special importance to the line of the watershed as such. From these facts. struck another mine and was also seriously damaged. as compared with the overriding importance of a final regulation of their own frontiers. Furthermore. that the maps were communicated to the Siamese Government as purporting to represent the outcome of the work of delimitation. since there was no reaction on the part of the Siamese authorities. a general principle of law. Moreover. though bilateral. If the Siamese authorities accepted the Annex I map without investigation. Siam failed to react. became source of customary norm because. on a visit to the Temple. sandstone model and ancient pottery which might.

authorization before they were entered, this vigilance sometimes going so far as to involve the use of force: all of which render the assertion of ignorance a priori improbable. Moreover, when the Albanian Government had become fully aware of the existence of a minefield, it protested strongly against the activity of the British Fleet, but not against the laying of the mines, though this act, if effected without her consent, would have been a very serious violation of her sovereignty; she did not notify shipping of the existence of the minefield, as would be required by international law; and she did not undertake any of the measures of judicial investigation which would seem to be incumbent on her in such a case. Such an attitude could only be explained if the Albanian Government, while knowing of the mine laying, desired the circumstances in which it was effected to remain secret. The second series of facts relates to the possibility of observing the mine laying from the Albanian coast. Geographically, the channel is easily watched: it is dominated by heights offering excellent observation points, and it runs close to the coast. The methodical and well-thought-out laying of the mines compelled the minelayers to remain from two to two-and-a-half hours in the waters. In regard to that point, the naval experts appointed by the Court reported, after enquiry and investigation on the spot, that they considered it to be indisputable that, if a normal look-out was kept and if the lookouts were equipped with binoculars, under normal weather conditions for this area, the mine-laying operations must have been noticed by these coastguards. From all the facts and observations mentioned above, the Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of Albania. As regards the obligations resulting for her from this knowledge, they are not disputed. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on October 22nd of the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these grave omissions involve her international responsibility. Chorzow Factory Case (Germany V. Poland) (1928) The German empire had a contract with a company, where the company undertook to establish for the Reich and forthwith to begin the construction of a nitrate factory at Chorzow, Upper Silesia. Subsequently, Poland and Germany signed a Convention concerning the Upper Silesia of Geneva (Geneva Convention). A Polish was then delegated with the full powers to take charge of the factory, thus, causing the end of the contract between Germany and the companies.

Germany brought action in behalf of the companies against Poland for the taking of the companies in violation of the Geneva Conventions. State’s espousal of claims on behalf of its nationals. International law does not prevent one State from granting to another the right to have recourse to international arbitral tribunals in order to obtain the direct award to nationals of the latter State of compensation for damage suffered by them as a result of infractions of international law by the first State. Reparation = indemnity for damages caused. It is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law. In estimating the damage caused by an unlawful act, only the value of property, rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed, or the damage done to whom is to serve as a means of gauging the reparation claimed, must be taken into account. The damage suffered is equivalent to the total value - but to that total only - of the property, rights and interests of this Company in that undertaking, without deducting liabilities. The reparation due by one State to another does not however change its character by reason of the fact that it takes the form of an indemnity for the calculation of which the damage suffered by a private person is taken as the measure. The rules of law governing the reparation are the rules of international law in force between the two States concerned, and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State. Reparation, defined. The essential principle contained in the actual notion of an illegal act - a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.

When restitution not possible, then reparation. Restitution in kind, or if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. Reparation, as applied in this case. This conclusion particularly applies as regards the Geneva Convention, the object of which is to provide for the maintenance of economic life in Upper Silesia on the basis of respect for the status quo. The dispossession of an industrial undertaking (which is prohibited by the Geneva Convention) then involves the obligation to restore the undertaking and, if this be not possible, to pay its value at the time of the indemnification, which value is designed to take the place of restitution which has become impossible. To this obligation, in virtue of the general principles of international law, must be added that of compensating loss sustained as the result of the seizure. The impossibility of restoring the Chorzów factory could therefore have no other effect but that of substituting payment of the value of the undertaking for restitution; it would not be in conformity with the principles of law or with the wish of the Parties to infer from that agreement that the question of compensation must henceforth be dealt with as though an expropriation properly so called was involved. (Some notes on the case from BP v. Libya: The Chorzow Factory case is the leading case on the proposition that restitutio in integrum is a recognized remedy of International Law. However, the judgment is not authority on the point, for the Claimant (the German Government) did not claim restitutio in integrum, and anything the Court stated on the availability of that remedy is obiter.) *Sir: What is the general principle of law in the case? Reparation for the taking of property requires compensation. Reparation is due when there is a breach of an obligation. When an expropriation is legal, the amount of the reparation is the logistical value of the property taken at the time of the expropriation. However, when there is an unlawful taking, the amount of reparation includes the intangible assets (loss of profits). Barcelona Traction, Light And Power Company Case (Belgium V. Spain) (1970)

The BTLPC, was incorporated in Toronto (Canada) for the purpose of creating and developing an electric power production and distribution system in Catalonia (Spain). It formed a number of subsidiary companies, of which some had their registered offices in Canada and the others in Spain. Some years after the first world war Barcelona Traction share capital came to be very largely held by Belgian nationals. The servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil war. After that war the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds. Eventually, the company was declared bankrupt. Belgium filed an application with the ICJ against the Spanish government seeking reparation of damages claimed to have been caused to the Belgian national shareholders of the company. Municipal law applied to international law. In the field of diplomatic protection, international law was in continuous evolution and was called upon to recognize institutions of municipal law. In municipal law, the concept of the company was founded on a firm distinction between the rights of the company and those of the shareholder. Only the company, which was endowed with legal personality, could take action in respect of matters that were of a corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but this did not imply that both were entitled to claim compensation. Whenever a shareholder's interests were harmed by an act done to the company, it was to the latter that he had to look to institute appropriate action. An act infringing only the company's rights did not involve responsibility towards the shareholders, even if their interests were affected. In order for the situation to be different, the act complained of must be aimed at the direct rights of the shareholder as such (which was not the case here since the Belgian Government had itself admitted that it had not based its claim on an infringement of the direct rights of the shareholders). General Rule: State of the company can seek redress. International law had to refer to those rules generally accepted by municipal legal systems. An injury to the shareholder's interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of

international law expressly conferred such a right on the shareholder's national State. Exceptional circumstances. The Court considered whether there might not be, in the present case, special circumstances for which the general rule might not take effect. Two situations needed to be studied: (a) the case of the company having ceased to exist, and (b) the case of the protecting State of the company lacking capacity to take action. As regards the first of these possibilities, the Court observed that whilst Barcelona Traction had lost all its assets in Spain and been placed in receivership in Canada, it could not be contended that the corporate entity of the company had ceased to exist or that it had lost its capacity to take corporate action. So far as the second possibility was concerned, it was not disputed that the company had been incorporated in Canada and had its registered office in that country, and its Canadian nationality had received general recognition. The Canadian Government had exercised the protection of Barcelona Traction for a number of years. If at a certain point the Canadian Government ceased to act on behalf of Barcelona Traction, it nonetheless retained its capacity to do so, which the Spanish Government had not questioned. Whatever the reasons for the Canadian Government's change of attitude, that fact could not constitute a justification for the exercise of diplomatic protection by another government. It had been maintained that a State could make a claim when investments by its nationals abroad, such investments being part of a State's national economic resources, were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment. But, in the present state of affairs, such a right could only result from a treaty or special agreement. And no instrument of such a kind was in force between Belgium and Spain. *Sir: What is the general principle of law in the case? A corporation has a juridical personality distinct from its shareholders. Texaco V. Libya (1978) Libya promulgated decrees purporting to nationalize all of the rights, interests and property of Texaco in Libya granted to them jointly under 14 Deeds of Concession. The Companies objected to the decrees and claimed that such action by the Libyan Government

violated the terms and conditions of their Deeds of Concession. The Companies requested arbitration. The Sole Arbitrator held that (a) the Deeds of Concession are binding on the parties, (b) by adopting the measures of nationalization, the Libyan Government breached its obligations arising under the Deeds of Concession and (c) the Libyan Government is legally bound to perform the Deeds of Concession and to give them their full force and effect. Libya argues that with respect to nationalization, municipal law should govern and not international law. Several UN G.A. resolutions were invoked by both parties. Thus the court had to look into the legal value and validity of such resolutions and their binding effect to the parties. Legal value of resolutions to be determined on the basis of the circumstances under which they were adopted & analysis of the principles they state. The legal value of the resolutions which are relevant to the present case can be determined on the basis of circumstances under which they were adopted (ex. voting pattern) and by analysis of the principles which they state. Resolutions in order to be binding must be accepted by the members escpecially those specially affected. With respect to the first point, the absence of any binding force of the resolutions of the General Assembly of the United Nations implies that such resolutions must be accepted by the members of the United Nations in order to be legally binding. In this respect, the Tribunal notes that only Resolution 1803 (XVII) of 14 December 1962 was supported by a majority of Member States representing all of the various groups. By contrast, the other Resolutions mentioned, and in particular those referred to in the Libyan Memorandum, were supported by a majority of States but not by any of the developed countries with market economies which carry on the largest part of international trade. Distinguish between those stating an existing right & those introducing new principles. The appraisal of the legal value on the basis of the principles stated, it appears essential to this Tribunal to distinguish between those provisions stating the existence of a right on which the generality of the States has expressed agreement and those provisions introducing new principles which were rejected by certain representative groups of States and having nothing more than a de lege ferenda (what the law ought to be); value only in the eyes of the States which have adopted them; as far as the others are concerned, the rejection of these same principles implies that they consider them as being contra legem (against the law). With respect

to the former, which proclaim rules recognized by the community of nations, they do not create a custom but confirm one by formulating it and specifying its scope, thereby making it possible to determine whether or not one is confronted with a legal rule. As has been noted by Ambassador Castaneda, "[such resolutions] do not create the law; they have a declaratory nature of noting what does exist" Resolution 1803 reflect the state of customary law – based on adoption of majority of states & opinio juris. On the basis of the circumstances of adoption mentioned above and by expressing an opinio juris communis, Resolution 1803 (XVII) seems to this Tribunal to reflect the state of customary law existing in this field. Indeed, on the occasion of the vote on a resolution finding the existence of a customary rule, the States concerned clearly express their views. The consensus by a majority of States belonging to the various representative groups indicates without the slightest doubt universal recognition of the rules therein incorporated, i.e., with respect to nationalization and compensation the use of the rules in force in the nationalizing State, but all this in conformity with international law. *Sir: The method of looking into voting patterns and employing the “specially affected” states doctrine do not fully and totally assess WON a resolution is binding. State Practice + Opinio Juris still has to be proved. Sir does not approve of this method. BP V. Libya BP Exploration Company (BP) had a contractual agreement with the Government of Libya (Libya), which allowed BP to operate in Libya for the extraction, processing and export of petroleum. The area in which BP was allowed to operate was called Concession 65. However, Libya, in December 1971 passed the BP Nationalization Law, which nationalized the operations of BP in Concession 65, restoring to the State ownership of all properties, rights, assets and shares in the operations conducted in the said area, and then transferring these to a new company, the Arabian Gulf Exploration Company. As a result of the Nationalization Law (which was rapidly implemented) BP’s operations in Concession 65 were brought to a complete halt and its staff were immediately excluded from the premises and facilities. The Arabian Gulf Exploration Company had taken over Concession 65. Applicable law in the case. Clause 28 of the concession agreement provides that should dispute arise, the applicable law shall be the principles of the law of Libya common to the principles of international

law, and only if such common principles do not exist with respect to a particular matter, will resort be made to general principles of law. In the event that international law and Libyan law conflict on the issue, general principles of law should apply to resolve the question. The governing system of law is what the clause expressly provides, that in the absence of principles common to the Libyan and International law, general principles of law, including those that may have been applied by international tribunals, should apply. Specific Performance not applicable here. In the decisions of tribunals, while arbitral tribunals can declare awards which include the declaration of specific performance against a recalcitrant party, their powers and jurisdiction to do so rest carefully on the parties’ consent. Examined in the light of general principles of law, the legal systems analyzed here offer different solutions to the problem. Thus these municipal systems of law profess allegiance to two divergent principles on the question. It is therefore NOT POSSIBLE to hold that under general principles of law an agreement fundamentally abrogated by one party continues in force and is to be specifically performed indefinitely until the innocent party terminates it, for under English and American law the sole remedy is damages and in others specific performance does not lie against the State. It is clear then, that there does not exist a uniform general principle of law that an agreement continues in effect after being repudiated by one party but not the other, and there is no uniform principle which provides that specific performance is a remedy available at the option of an innocent party. Restitutio in integrum not applicable again. As to restitutio in integrum, while it has been claimed, especially in the form of physical restoration, no tribunal has ever prescribed the remedy with regard to such property or parties as in these proceedings. The concept has rather been employed at times as a principle for assessing the amount of damages due for breach of an international obligation. The impossibility of restitution and specific performance. The claim would not even be realistic; such an action, which has the effect of turning back the clock would upset the current situation too profoundly and would have unforeseeable practical consequences. Furthermore, if awarded now and the contract would still be allowed to exist indefinitely, the amount would be so great it would be absurd. A rule of reason therefore dictates a result which conforms to international law, evidenced by state practice and the law of treaties,

the concessionaire is not entitled to call for specific performance by the Government of the agreement and reinstatement of his contractual rights. here. Under Public International Law. India) Portugal has a territory in the Indian Peninsula made up of the three districts of Goa. this is the only decision that the restituto in integrum is impossible. Take note. An obligation must be performed. Step three: Look at the general principles of international law (municipal legal principles existing in different legal systems). *Sir: This case also involves a concession contract. There are no certain conclusions as to the position of Libyan law on the subject matter of the dispute. it is only when damages are inadequate that specific performance is resorted to. the norm is the payment of damages. There is no reason why long continued practice between two States accepted by them as regulating their . Daman and Diu. two parcels of territory completely surrounded by the territory of India which constitute enclaves: Dadra and Nagar-Aveli. The district of Daman comprises. the Government of India prevented Portugal from exercising this right of passage. The principle of compensation is also recognized in the BP Nationalization Law. Portugal claims that the denial of passage by India was done due to India’s open campaign to annex Portugese territories.same as German. BP cannot ask for specific performance nor to be declared owner of any oil extracted in Libya. but his sole remedy is an action for damages. the remedies of restitution in king and specific performance are unavailable against governmental authorities. it was not the LEGAL IMPOSSIBILITY but IMPRACTICABILITY that restitution cannot be ordered. mutuality. Although as a matter of law. Existence of local custom between two states. restitution in integrum and damages Step one: Look at the principles of Libyan law common to international law. Portugal claims that there was a local custom in its favor with the right of passage over the territory.Aveli. in addition to its littoral territory. Here. specific performance and restituto in integrum is not available. consensuality and obligatory are observed. Vienna Convention does not provide for specific rules on remedies. Payment of Damages. Passage Case (Portugal V. Portugal has been passing through Indian territory through the years in order to the enclaves of Dadra and Nagar. However. Step two: Look at Public international law (Vienna Convention on the law of Treaties). a State (Libya) is the respondent and normally. The law between the parties must be complied with in good faith. it is impractical to order specific performance necause cannot compel a state because there is no coercive apparatus in international law. The conclusion is thus: when by exercise of sovereign power a State committed a fundamental breach of a concession agreement by repudiating it through a nationalization of the enterprise and its assets in a manner which implies finality. Customary international law (particularly the practice of international tribunals) does not provide explicit support for the proposition that specific performance and restitution in integrum are remedies available at the option of a party suffering a breach by a contracting party. However in 1954. however. (The principles of these legal systems are principles of ordinary commercial law. BP is entitled to damages arising from Libya’s wrongful acts.specific performance is the normal remedy and damages are resorted to only when it is not possible. it is possible. Danish law. * Reviewer notes: The framework of the Tribunal with regards entitlement to specific performance. German law.and to governing principles of English and American contract law. this case is different because one of the parties is a state. Under the applicable systems of law. As a consequence of which. but in this case. The breach because of the Nationalization Law is made the basis of the amount of damages in favor of BP. a contractual undertaking as previous cases. English law – the norm is damages and specific performance is the exception. General principles of law: The General principles of a contract such as autonomy. The Court says that it is difficult to see why the number of States between which a local custom may be established on the basis of long practice must necessarily be larger than two.

and arms and ammunition. in respect of private persons. and subject to the regulation and control of India. and the practice requiring previous authorization. covered by its power of regulation and control of the right of passage of Portugal. It was in support of this contention that it invoked its right of passage and asked the Court to declare the existence of that right. with regard to these categories. Practice was accepted as law by the Parties and has given rise to a right and a correlative obligation. and arms and ammunition. armed police. The course of dealings established between the Portuguese and the British authorities with respect to the passage of these categories excludes the existence of any such right. This situation continued during the post-British period. it is the eve of the creation of these obstacles that must be selected as the starting point which to ascertain whether or not Portugal possessed such a right. There was no right of passage in favour of Portugal involving a correlative obligation on India has been established in respect of armed forces. a right of passage over intervening Indian territory between coastal Daman and the enclaves and between the enclaves. civil officials and goods in general. The question was put to the Court in respect of the dispute. ACTORS IN INTERNATIONAL LAW . civil officials and goods in general. III.relations should not form the basis of mutual rights and obligations between the two States. This being so. Right of passage. armed police. No breach of international obligation when custom was subject to regulation of the other party. periods a constant and uniform practice allowing free passage between Daman and the enclaves. civil officials and goods in general. the Court is unable to hold that India’s refusal of passage to the proposed delegation and its refusal of visas to Portuguese nationals of European origin and to native Indian Portuguese in the employ of the Portuguese Government was action contrary to its obligation resulting from Portugal’s right of passage. as in the case of armed forces. There was a clear distinction between the practice permitting free passage of private persons. which has arisen between India and Portugal with regard to obstacles placed by India in the way of passage. to the extent necessary. for the exercise of its sovereignty over the enclaves. Portugal’s claim of a right of passage is subject to full recognition and exercise of Indian sovereignty over the intervening territory and without any immunity in favour of Portugal. This practice having continued over a period extending beyond a century and a quarter unaffected by the change of regime in respect of the intervening territory which occurred when India became independent. it was well understood that passage could take place only by permission of the British authorities. In 1954. in the circumstances. In view of the tension then prevailing in intervening Indian territory. The dispute arises at the time of the creation of the obstacles. as claimed by Portugal. With regard to private persons. there existed during the British and post-British. The practice that was established shows that. India’s refusal of passage in those cases was.

4: 1. c ) government. 35 (2): A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance. . subject to and in conformity with its Rules. 93(2): A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. 2. UN Charter: ART. 2. without vote. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. in the judgment of the Organization. and shall receive such information presented by such organizations on their own initiative. 32: Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations. shall be invited to participate. b ) a defined territory. The Security Council shall lay down such conditions as it deems just for the participation of a state which is not a Member of the United Nations. for the purposes of the dispute. ART. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and. the obligations of pacific settlement provided in the present Charter. in the discussion relating to the dispute. 1.Reparations For Injuries Suffered In The Service Of The Un (1949) The UN GA asked the ICJ for an advisory opinion submitting the following legal questions: ART. the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings. ART. if it is a party to a dispute under consideration by the Security Council. Wherever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court. 3. Montevideo Convention on the Rights and Duties of States: The state as a person of international law should possess the following qualifications: a ) a permanent population. Only states may be parties in cases before the Court. ART. ART 34. may request of public international organizations information relevant to cases before it. ICJ Statute: 1. are able and willing to carry out these obligations. and d) capacity to enter into relations with the other states. The Court.

though not expressly provided in the Charter. to one more affected or less affected by the complications of international life. In particular. except with the consent of the States concerned. which occupies a position in certain respects in detachment from its Members. equal in law. to one in sympathy . UN Capacity to bring claims for damage caused to a victim. the capacity to bring an international claim against the responsible de jure or de facto government with a view of obtaining the reparation due in respect of the damage caused (a) to the United Nations. to its administrative machine. in the present state of the law as to international jurisdiction. and. it is essential that in performing his duties he need not have to rely on any other protection than that of the UN (save of course for the more direct and immediate protection due from the State in whose territory he may be). protest. And lastly. if need be. how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national? Capacity. If he had to rely on that State. UN’s international personality as evidenced by UN Charter. When the UN has sustained damage resulting from a breach by a Member of its international obligations. and cannot. Organization has a capacity to exercise functional protection of its agents. Competence to bring an international claim is. UN Capacity to bring claim against one of its members for breach of international obligations towards it. To ensure the independence of the agent. to its property and assets. negotiation. request for an enquiry. Such a claim takes the form of a claim between two political entities. Conventions to which the UN is a party-has confirmed this character of the UN. similar in form. and which is under a duty to remind them. To illustrate. In the event of an affirmative reply on point I (b). his independence might well be compromised. he should not have to rely on the protection of his own State. in its claim for reparation. Capacity of a state. (b) to the victim or to persons entitled through him? 2. Reparation guidelines. the UN must be deemed to have those powers which. But under international law. as an organization. the damage would include the reimbursement of any reasonable compensation which the UN had to pay to its agent or to persons entitled through him and the expenditure in replacing a dead or disabled agent engaged upon a distant mission. are conferred upon it by necessary implication as being essential to the performance of its duties. for those possessing it. damage caused to the victim or to persons entitled through him. contrary to the principle applied by Article 100 of the Charter. In order that the agent may perform his duties satisfactorily. it is essential that whether the agent belongs to a powerful or to a weak State. (i.1. and that he may count on it. and is in fact exercising and enjoying. Whereas a State possesses the totality of international rights and duties recognized by international law. Difference of rights possessed by a state and the UN. and both the direct subjects of international law. The Charter does not expressly confer upon the UN the capacity to include. has the United Nations. the capacity to resort to the customary methods recognized by international law for the establishment. functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. the rights and duties of an entity such as the UN must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. of certain obligations.e. it is impossible to see how it can obtain reparation unless it possesses capacity to bring an international claim. The UN was intended to exercise and enjoy. and request for submission to an arbitral tribunal or to the Court in so far as this may be authorized by the Statute). In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State. The UN Charter by giving the UN legal capacity and privileges and immunities in the territory of each of its Members. and to the interests of which it is the guardian. It is clear that UN has the capacity to bring a claim for damage caused to the interests of the UN itself. The measure of the reparation should depend upon the amount of the damage which the UN has suffered as the result of the wrongful act or omission of the defendant State and should be calculated in accordance with the rules of international law. consequently. be submitted to a tribunal. It is dealt with by means of negotiation. practice and conventions. and by providing for the conclusion of agreements between the UN and its Members. the presentation and the settlement of claims. he must feel that this protection is assured to him by the UN. A State can bring an international claim against another State. the independent action of the UN itself. defined.

may be described as pointing to the goal of international peace and secunty and friendly relations. the right that the obligations due to it should be respected. UN Capacity to bring a claim against a defendant state which is not a member of the UN. But Greece took up Mavrommatis’ case so it is now a dispute in international law. So WON a dispute originates in a personal injury is irrelevant. in this case.” At first. Purpose of the UN. Fifty States. Certain Expenses Of The UN (1962) The UN GA asked the ICJ for an advisory opinion "Do the resolutions authorized by the General Assembly to cover the costs of the UN operations in the Congo (ONUC) and of the operations of the UN Emergency Force in the Middle East (UNEF). and not merely personality recognized by them alone. Expenditures must be tested by their relationship to the purposes of the United Nations in the sense that if an expenditure were made for a purpose which is not one of the purposes of the United Nations. in conformity with international law. social. This assurance is even more necessary when the agent is stateless. is the sole claimant. which it deems likely to impair the general welfare or friendly relations among nations. Responsibility of the UN Security Council and the UN General Assembly. Greece has the right to ensure respect for rules of international law. When the victim has a nationality. a conflict of legal views or of interests between 2 persons. had the power. social. together with capacity to bring international claims. humanitarian and other purposes of the United Nations. that the General Assembly is also to be concerned with international peace and security.” Greece is asserting its rights by claiming indemnity from Britain arguing that Britain treated Mavrommatis in “a manner incompatible with certain international obligations which they are bound to observe. "Expenses" of any organization are the amounts paid out to defray the costs of carrying out its purposes. however. the political. of the Charter of the United Nations"? Expenses. but is actually asserting its own rights. When it claims redress for a breach of these obligations. representing the vast majority of the members of the international community. It is not substituting itself with the citizen. The fourth and last purpose is to be a center for harmonizing the actions of nations in the attainment of these common ends. Capacity of a state to bring claims from acts contrary to international law committed by another state. the dispute was between a private person (Mavrommatis) and a State (Britain). cultural and humanitarian goals and respect for human rights. The capacity of the UN to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter. it could not be considered an "expense of the Organization". "constitute 'expenses of the Organization' within the meaning of Article 17. The first two purposes as stated in paragraphs I and 2. including situations resulting from a violation of the provisions . paragraph 2. or which compels either the State or the UN to refrain from bringing an international claim. cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the UN. because the question of nationality is not pertinent to the admissibility of the claim. the UN is invoking its own right. The Charter makes it abundantly clear. in the eyes of Britain. The third is the achievement of economic. to bring into being an entity possessing objective international personality. from whom they have been unable to obtain satisfaction through the ordinary channels. Greece. Mavrommatis Case (1924) This dispute relates to Palestine and Britain’s wrongful refusal to recognize Mavrommatis’ rights acquired under contracts for public works to be done in Palestine. Article 14 authorizes the General Assembly to "recommend measures for the peaceful adjustment of any situation. economic. defined. It does not matter whether or not the State to which the claim is addressed regards him as its own national. In such a case. regardless of origin.or not in sympathy with the mission of the agent-he should know that in the performance of his duties he is under the protection of the UN. Greece took up Mavrommatis’ case as it is a Greek subject. It is only the Security Council which can require enforcement by coercive action against an aggressor. defined. Disputes. A dispute is defined as a “disagreement on a point of law or fact. there is no rule of law which assigns priority to the one or to the other. A state can take up the case of its subjects when injured by acts contrary to international law committed by another State.

The provisions of the Charter which distribute functions and powers to the Security Council and to the General Assembly give no support to the view that such distribution excludes from the powers of the General Assembly the power to provide for the financing of measures designed to maintain peace and security. the initiation of studies and the making of recommendations. Article 17. the functions and powers conferred by the Charter on the General Assembly are not confined to discussion. Expenses.existence of .of the present Charter setting forth the purposes and principles of the United Nations". how is it related to the independence of other States and to their equality on the international plane? From the standpoint of the national legal order. state sovereignty is the supreme legal authority in relation to subjects within its territorial domain. one moves to the internal plane. by means of recommendations to States or to the Security Council. If the action was taken by the wrong organ. at the request. of the States concerned. If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes. TERRITORIAL SOVEREIGNTY If state sovereignty is said to be “absolute”. the Secretary-General properly exercised the authority given him to incur financial obligations of the Organization and expenses resulting form such obligations must be considered "expenses of the Organization within the meaning of Article 17. exclusively. This being true. Both national and international law contemplate cases in which the body corporate or politic may be bound. paragraph 2". of each Member to bear that part of the expenses which is apportioned to it by the General Assembly. they are none the less "expenses of the Organization" to be apportioned in accordance with the power granted to the General Assembly by Article 17. or to both. The powers of the UNSC and the UNGA. Even though certain expenses are "extraordinary" and "essentially different" from those under the "regular budget". of the Charter could lead to the simple conclusion that "the expenses of the Organization" are the amounts paid out to defray the costs of carrying out the purposes of the Organization. paragraph 2. the presumption is that such action is not ultra vires the Organization. in accordance with such resolution. in the international sphere. That limitation is built into the nature of state sovereignty under international law. to promote and to maintain a peaceful settlement of the situation. it was irregular as a matter of that internal structure. However. to organize peacekeeping operations. The sovereignty of one state begins where the sovereignty of another state begins. A.existence of sovereignties under conditions of independence and equality. As the United Nations Charter included no procedure for determining the validity of the acts of the organs of the United Nations. that is. When the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations. but this would not necessarily mean that the expense incurred was not an expense of the Organization. to the internal structure of the Organization. those amounts must be presumed to constitute "expenses of the Organization". the General Assembly is also given the power to apportion the expenses among the Members and the exercise of the power of apportionment creates the obligation. To conceive it as unlimited as to negate its existence in the context of the co. determine its own jurisdiction. If the Security Council adopted a resolution purportedly for the maintenance of international peace and security and if. Acts of the UN. or with the consent. While it is the Security Council which. the Secretary-General incurred financial obligations. as to third parties. in the first place at least. as applied in this case. It is apparent that the operations were undertaken to fulfill a prime purpose of the United Nations. by an ultra vires act of an agent. The General Assembly is given the power not only to "consider" the budget of the Organization. such that there prevails in fact co. consideration. each organ must. STATES 1. paragraph 2. but also to "approve" it. Article II par 2 empowers the General Assembly. sovereignty realizes itself in the existence of a large number of sovereignties. may order coercive action. specifically stated in Article 17. This is the traditional context in referring to sovereignty as “absolute”. paragraph 2.

occupation or conquest. According to widely accepted opinion of Judge Huber in the Island of Palmas case. The growing . the development of international law. claiming that Spain acquired title by discovery in the 1500s. or else by legal engagements entered into between interested neighbors. Independence in regard to a portion of the globe is the right to exercise therein to the exclusion of any other State. corollarily. must be considered critical. The Netherlands claims that the Dutch East Indies possessed and exercised rights of sovereignty through conventions and agreements with the natives (Treaty of Suzerainty). cannot or do not yet form the territory of a State. Territorial sovereignty. Territorial sovereignty belongs always to one. It seems therefore natural that an element which is essential for the constitution of sovereignty should not be lacking in its continuation.g. isolated island found between Mindanao and Greenwich. a situation recognized and delimited in space. Titles of acquisition of TS in present-day international law are either based on an act of effective apprehension. occupation. for the decision of the dispute. like cession. either by so-called natural frontiers as recognized by international law or by outward signs of delimitation that are undisputed. recognizes—though under different legal formulae and with certain differences as to the conditions required—that the continuous and peaceful display of TS (peaceful in relation to other States) is as good as a title. natural accretion can only be conceived of as an accretion to a portion of territory where there exists an actual sovereignty capable of extending to a spot which falls within its sphere of activity. as a corollary.existence. presuppose that the ceding and the cessionary Powers or at least one of them have the faculty of effectively disposing of the ceded territory. precisely the characteristic feature of the legal situation pertaining in those parts of the globe which. The fact that the functions of a State can be performed by any State within a given zone is. “Sovereignty in the relations between states signifies independence. it must also be shown that the TS has continued to exist and did exist at the moment which.” Again. in regard to a portion of the globe. to the exclusion of any other State. the functions of a State. it cannt be sufficient to establish the title by which TS was validly acquired at a certain moment. e. have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. defined.” Sovereignty in the relations between States signifies independence. if the contestation is based on the fact that the other Party has actually displayed sovereignty. on the other hand. the development of international law. it is important to view sovereignty in international law as the sovereignty of one State in relation to the sovereignty of another State in conditions of co. the functions of a State. How is state sovereignty defined in international law? The right to exercise in a definite portion of the globe the functions of a State to the exclusion of another state. The development of the national organization of States during the last few centuries and. However. If a dispute arises as to the sovereignty over a portion of territory. This demonstration consists in the actual display of State activities. Sovereignty in relation to territory is called “territorial sovereignty. The development of the national organization of States during the last few centuries. Both US and Netherlands claim territorial sovereignty over the island.g. conquest. frontier conventions. resulting in the negation of international community composed of juridically equal states. or by acts of recognition of States within fixed boundaries. Territorial sovereignty [TS] is. e. States. Island Of Palmas Case The island of Palmas is a single. have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. So true is this that practice. or. it is customary to examine which of the claiming States possesses a title— cession. In the same way. as well as doctrine. how resolved. etc. Acquisition of title. Disputes with regards territorial sovereignty. and.sovereignties. in general. It appears to follow that sovereignty in relation to a portion of the surface of the globe is a legal condition necessary for the inclusion of such portion in the territory of a particular State. such as belongs only to the territorial sovereign. Independence. like the high seas or lands without a master. or in exceptional circumstances to several.—superior to that advanced by the other State. is the right to exercise therein. to the exclusion of all others. US bases its title by cession from the Spaniards.

the State cannot fulfill this duty. such a title exists. Territorial Sovereignty. the delimitation of Hinterland. with its complete judicial system. Although continuous in principle. shall follow the conditions required by the evolution of law. However. if effectiveness were required only for the act of acquisition and not equally for the maintenance of the right. to the category of an abstract right. the question arises whether a title is valid erga omnes. Manifestations of TS asume different forms. the fact of peaceful and continuous display is still one of the most important considerations in establishing boundaries between States. International law. as e. no conventional line of sufficient topographical precision exists. its continued manifestation. the actual continuous and peaceful display of state functions is. The principle that continuous and peaceful display of the functions of State within a given region is a constituent element of TS is not only based on the conditions of the formation of independent States and their boundaries. has demanded that the occupation shall be effective would be inconceivable. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved. it is true. Although municipal law. As regards the question which of different legal systems prevailing at successive periods is to be applied (the so-called intertemporal law). Continuous and peaceful display of sovereignty. i. This right has as corollary a duty: the obligation to protect within the territory the rights of other States. e. together with the rights which each State may claim for its nationals in foreign territory. the view is adopted that discovery does not create a definitive title of sovereignty but only an “inchoate” title. however. this is because the question rarely arises in connection with territories in which there is already an established order of things. without external manifestation. in case of dispute. An inchoate title could not prevail over the continuous and peaceful display of authority by another State. and in this way may prevent the other from any penetration of its territory. Principle of contiguity.e. or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from. with which almost all international relations are bound up. without concrete manifestations. or if there are gaps in the frontiers otherwise established. involves the exclusive right to display the activities of a State.g. on the other hand. the structure of which is not based on any super-State organization.. according to the view that has prevailed since the 19th century. or if. as has already been said. as well as on an international jurisprudence and doctrine widely accepted. a distinction must be made between the creation of rights and the existence of rights. in the case of an island situated in the high seas. or if a conventional line leaves room for doubt. for such display may prevail even over a prior. Just as before the rise of international law. it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). an inchoate title of discovery must be completed within a reasonable period by effective occupation. but the alleged principle itself . If. definitive title put forward by another State. Without manifesting its territorial sovereignty in a manner corresponding to circumstances. Intertemporal law. so too. sovereignty cannot be exercised in fact at every moment on every point of a territory. Correlative duty with regards territorial sovereignty. it has nonetheless limited their effect by the principles of prescription and the protection of possession. If the effectiveness has above all been insisted on in regard to occupation.g. only an inchoate title. Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation. according to time and place. e.g. It is true that neighboring States may by convention fix limits to their own sovereignty. is able to recognize abstract rights of property as existing apart from any material display of them. If. under the reign of international law. even in regions such as the interior of scarcely explored continents where such sovereignty is scarcely manifested. Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule. the sound and natural criterium [sic] of TS. cannot be presumed to reduce a right such as TS.insistence with which international law. boundaries of lands were necessarily determined by the fact that the power of a State was exercised within them. The same principle which subjects the act creative of a right to the law in force at the time the right arises. Discovery is not enough. in particular their right to integrity and inviolability in peace and in war. the high seas. demands that the existence of the right. ever since the middle of the 18th century.

is by its very nature so uncertain and contested that even Govts of the same State have on different occasions maintained contradictory opinions as to its soundness. and such a state of things would create in favour of the Netherlands an inchoate title for completing the conditions of sovereignty. or having a claim to sovereignty.serving acts of parties at a stage when it was evident that a dispute existed. they would have shown Spanish occupation of the islands. in view of occupying or colonizing the regions at issue must. provision of defense 3. in international law. or a commencement of occupation of an island not yet forming a part of the territory of a state. and had already existed as continuous and peaceful before that date long enough to enable any Power who might have considered herself as possessing sovereignty over the island. Such inchoate title. according to local conditions. Spain could not transfer to US more rights than she herself possessed. based on display of state authority. These facts at least constitute a beginning of establishment of sovereignty by continuous and peaceful display of state authority. *Sir: US: Discovery “Inchoate title” Huber: Discovery is not enough. taxation 2. the fact of such display must be shown precisely in relation to the disputed territory. lacking in precision. Principle of Continguity – presumption of sovereignty in favor of a particular state wherein islands relatively close to the shores of a state belonged to them by virtue of their geographical proximity to each other. what is essential in such a case is the continuous and peaceful display of actual power in the contested region. The acts of the Dutch East Indies are attributable to the state itself. coats of arms). and Spain did not have the island based on discovery. to have. It may suffice that such display existed in 1898. in equity. Dutch East Indies exercise of sovereignty. The court held that there was indeed cession through the treaty of Paris. and arbitrary results * Reviewer notes: The Critical Period is a juridical technique in the use or exclusion of evidence consisting of self. civil registrar. The island was only reported to have been seen but there . might be deduced from the notion of contiguity. collection of tribunes. but it cannot suffice for the territory to be attached to another by a legal relation not recognized in international law as valid against a State contesting this claim to sovereignty. Spain never protested the exercise of territorial rights by Netherlands Critical Date (definition) – regardless of what parties will do (subsequent events..) – the court will freeze the period of the controversy to the date when the controversy became ripe for adjudication. contradictory opinions. and it would equally prevail over any claim which. would prevail over an inchoate title derived from discovery. If the claim to sovereignty is based on the continuous and peaceful display of State authority. especially if this latter title has been left for a very long time without completion by occupation. a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights. be entirely assimilated to acts of the Netherlands State itself. And all the events after such date will be ignored. From the end of the 16 th till the 19th century. By showing that there were priests. etc. However. The Netherlands has proved the exercise of some acts of State authority and the existence of external signs of authority (flags. The acts of the East India Company. In this case. It is not necessary that the display of sovereignty should go back to a very far distant period. It is not necessary that there should be a special administration established in this territory. so uncertain and uncontested. etc. Critical date in this case – treaty of paris (1898) United States could have won the case if they had shown that at the time there was no separation of church and state. the tribunal disregarded this because: no precedent. companies formed by individuals and engaged in economic pursuits (Chartered Companies) were invested by the State to whom they were subject with public powers for the acquisition and administration of colonies. international law prescribed that not only discovery but also effective occupation Netherlands: Treaty Agreement of the Dutch with the natives allowed the Dutch to exercise sovereignty over the islands through: 1.

which is only limited in certain cases by prohibitive rules. every State remains free to adopt the principles which it regards as best and most suitable. Territioriality of criminal law is not absolute in international law. have taken place there. But the existence if a right must follow the conditions required by the evolution of law – the 19th century IL which requires effective occupation to constitute territorial sovereignty. if a war vessel. A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State the flag of which it flies. Such argument could only be used in the present case if international law forbade Turkey to take into consideration the fact that the offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged. 8 Turkish nationals on board died. for. protesting his arrest. Demons. happening to be at the spot where a collision occurs between a vessel flying its flag and a foreign vessel were to send on board the latter an officer to make investigations or to take evidence. Based on the INTERTEMPORAL LAW. IL underwent modifications. and no other State may do so. effects on a vessel flying another flag or in foreign territory. in regard to a variety of situations. and they do so in ways which vary from State to State. no State may exercise any kind of jurisdiction over foreign vessels upon them. In virtue of the principle of the freedom of the seas (absence of any territorial sovereignty upon the high seas). If a guilty act committed on the high seas produces its. Jurisdiction can be determined by looking at the elements [effects] of the crime. and more especially its effects. given decisions sanctioning this way of interpreting the territorial principle. Nationality of victim is not the sole basis of jurisdiction. Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental. SS Lotus Case (France V. Demons was arrested by the Turkish authorities and was subjected to trial in the Turkish courts. the authors of which at the moment of commission are in the territory of another State. The officer on watch on board Lotus was Lt. demanding his release or obtaining transfer of the case from the Turkish Courts to the French Courts. that State exercises its authority. It’s not necessary to consider the contention that a State cannot punish offences committed abroad by a foreigner simply by reason of the nationality of the victim. French courts have. it leaves them in this respect a wide measure of discretion. it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them. even of countries which have given their criminal legislation a strictly territorial character. a ship is placed in the same position as national territory but there is nothing to support the claim according to which the rights of the State under whose flag the vessel sails may go farther than the rights which it exercises within its territory properly so called. But no such rule of international law exists. Turkey) There was a collision at the high seas between a French mail steamer Lotus with the Turkish collier Boz Kourt. property and acts outside their territory. In other cases. Although under international law in the 16th century. just as in its own territory. The case under international law at present is that far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons. Vessels are covered under the jurisdiction of the state whose flag they fly. if one of the constituent elements of the offence. The French government protested the actions of the Turkish authorities. However. the act which creates a right is subjected to the law in force at the time the right arises. upon it. All that can be said is that by virtue of the principle of the freedom of the seas. “seeing” without occupation amounted to discovery. State discretion in applying local laws. But it does not follow that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas. such an act would undoubtedly be contrary to international law. The parties submitted the conflict tot the Court at the Hague. are nevertheless to be regarded as having been committed in the national territory. even in regard to offences committed there by foreigners. the same principles . interpret criminal law in the sense that offences. Lt. Vessels on the high seas are subject to no authority except that of the State whose flag they fly.was no sign of possession or administration by Spain or any mention of a contract with the natives. Thus. a French citizen. For this contention only relates to the case where the nationality of the victim is the only criterion on which the criminal jurisdiction of the State is based. The territoriality of criminal law is not an absolute principle of international law and does not coincide with territorial sovereignty. It is certain that the courts of many countries. The Boz Court was cut in two and sank.

Norway has not succeeded in establishing her contention. Eastern Greenland Case Norway. *Sir: The decision in the SS Lotus case has already been overturned by the UNCLOS. and some actual exercise or display of such authority. has not been contested by any Power. and the tribunal has had to decide which of the two is the stronger. said that it is taking possession of which is “officially confirmed”. Norway claims that Denmark possessed no sovereignty over the area which Norway occupied on July 10. and a desire arose in Norway and Denmark to recover the territory which had been subject to the sovereignty of the King's ancestors in the past. That period was an era of adventure and exploration. Nor is the fact of "conquest" established. involves two elements each of which must be shown to exist: the intention and will to act as sovereign. Loss of sovereignty by conquest. Constructive Possession. the delinquent. Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory is the extent to which the sovereignty is also claimed by some other Power. Norway: Denmark only possessed West Coast of Greenland. One of the peculiar features of the present case is that up to 1931 there was no claim by any Power other than Denmark to the sovereignty over Greenland. no Power disputed the Danish claim to sovereignty. from regarding the offence as having been committed in its territory and prosecuting. and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs. by treaty or otherwise herself recognized Danish sovereignty over Greenland as a whole and therefore cannot dispute it. must be regarded as the ordinary meaning of the word. the tradition of the King’s rights lived on. Conquest only operates as a cause of loss of sovereignty when there is war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State. there have been two competing claims to the sovereignty. in its proclamation of July 10. There is nothing to show any definite renunciation on the part of the Kings of Norway or Denmark. Court: Naaah!. time. Also. 1931. has been continuously and peacefully exercised. The example set by the navigators of foreign countries was inspiring. Denmark claims that the sovereignty which it enjoys over Greenland has existed for a long. despite having no intercourse with Greenland. and which is “placed under Norwegian sovereignty” of Elrik Raudes Land in Eastern Greenland. Denmark claims that Norway. but at the time there seems to have been a belief that despite the loss of contact and the loss of knowledge of the whereabouts of the settlements one or both of them would again be discovered and found to contain the descendants of the early settlers. Also. It is not sufficient for her to show that in many of these legislative and administrative acts action was only to be taken in the colonies. This proclamation was criticized for its failure to specify the limits of the occupation but it must have been intended that on the eastern side of the sea and the western side the “inland ice” should constitute the limits of the area occupied. and until the present dispute. accordingly.e. A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority. Loss of sovereignty by voluntary abandonment. The burden of proof lies on Norway to prove that Denmark used the word “Greenland” only to mean the colonies on the West Coast. a revival of interest in Greenland on the part of both the King and of his people took place. i. up till 1931. Indeed. It is known now that the settlements must have disappeared at an early date. In most of the cases involving claims to territorial sovereignty which have come before an international tribunal. and that at the time of the occupation the area was terra nullius. The fact that most of these acts were concerned with what happened in the colonies and that the colonies were all situated on the West coast is not by itself sufficient ground for holding that the authority in virtue of which the act was taken – whether legislative or . The geographical meaning of the word "Greenland".must be applied as if the territories of two different States were concerned. the name which is habitually used in the maps to denominate the whole island. In the opinion of the Court. and in the early part of the 17 th Century. This conclusion could only be overcome if it were shown that there was a rule of customary international law which established the exclusive jurisdiction of the State whose flag was flown. 1931. This 1931 Proclamation of Norway triggered the controversy between Denmark and Norway. The principle does not apply in a case where a settlement has been established in a distant country and its inhabitants are massacred by the aboriginal population.

the drawing of baselines must not depart to any appreciable . [4] licensing of fishing boats.” specifically referring to: [1] Jersey courts exercising criminal jurisdiction for nearly 100 years. This method consists in selecting appropriate points on the low water mark and drawing straight lines between them.” [2] this gives a simpler form to the belt. The goal is to provide a simpler form to the belt of the territorial waters. (1951) Proof of territorial sovereignty: exercise of jurisdiction. However. defined. [7] Jersey customs authorities established a custom house for the purpose of a census. lying along the coast of the mainland. Skjaergaard. Criteria provide courts with basis for their decisions.administrative – was also restricted to the colonized area. Trace parallele method. Ihlen. in which Greenland has been described as a Danish colony or as forming part of Denmark or in which Denmark has been allowed to exclude Greenland from the operation of the agreement. there was no animus possidendi. [4] the 10-milemaximium rule on the maximum length of the baseline does not apply because it has always been opposed by Norway. granting of concessions. the Minister of Foreign Affairs of Norway and Sweden (Sweden had control over Norway during this time). defined. speaking on behalf of his Government debarred Norway from proceeding to any occupation of territory in Greenland even if she had not by other acts recognized an existing Danish sovereignty there. [5] real estate contracts relating to property in the area were registered in the public registry of deeds. Also. The following are fundamental considerations inherent in the nature of the territorial sea. Method applies to well-defined bays and cases of minor curvature of the coastline. Estoppel and acquiescence by Norway. especially with its financial obligations under the Treaty of Kiel. and by various multilateral agreements to which both Denmark and Norway were contracting Parties.e. The letter was written because Norway-Sweden was asking for the intervention of the British Prince Regent in settling its differences with Denmark. local administration and legislation. This method consists in drawing the outer limit of the belt of territorial waters by following the coast in all its sinuosities. is afforded by various bilateral agreements concluded by Norway with Denmark. Minquiers & Ecrehos Case (UK v. Denmark maintained that the promise by in 1919 by M.” “diversity of facts” and “special circumstances. (1951) Circumstances affecting delimitation. The clearest dividing line between land and sea is the skjaergaard. [3] general toleration of the international community. Norway’s possession was not in the concept of a title. what won it for Denmark was estoppel or acquiescence because of the Ihlen Declaration. Anglo-Norwegian Fisheries Case (UK v. There must also be intent. such as expeditions. Method applies to ordinary coasts. and the Faroe Islands. Norway). which is one of the 2 requirements of sovereignty. There is equal preponderance of evidence presented by both states as to their occupation of a certain portion of Greenland. [2] Jersey law requires the holding of inquests on corpses found in the area. However. it is a proof of a better claim. [3] houses built in the area were assessed for the levying of taxes. France). etc. It did not have the intent to possess in behalf of a sovereign. i. legislation. First. ICJ allowed Norway’s method of delimiting the fisheries zone through the straight base-line method reckoned from the outer line of the skjaergaard because [1] this is in consonance with “geographic realities. wrote to the British Minister in Stockholm that the King of Sweden and Norway agreed to renounce in favor of the Kingdom of Denmark their claims over Iceland. defined. Both UK and France seek to establish sovereignty over the Minquiers Group and Ecrehos Group of islets and rocks by citing ancient title and treaties. Greenland. UK argues that the baseline should be the low-water mark on permanently dry land and that the trace parallele method should be used.. Unless it was so restricted. *Sir: Although both sides were able to present evidence establishing their sovereignty over the area. A second series of undertakings by Norway. UK won because of “ordinary local administration. Straight baselines method. it affords no ground for interpreting the word “Greenland” in this restricted sense. not the coast of the mainland. A skjaergaard is made up of around 120. recognizing Danish sovereignty over Greenland. Although acquiescence is not a means of acquiring title. the Norwegian Minister for Foreign affairs.000 insular formations. Remember that it is not only physical possession that is important.

Second. the economic interest peculiar to the region. Both Morocco and Mauritiana claim to have legal ties with Western Sahara prior to its colonization by Spain through.” and public display of sovereignty. The dispute relates to the expiration of the treaty with Chad citing the uti possidetis juris principle and Italy . and Botswana was formed in the former British territory. (Cambodia v. Mauritiana bases its claim on the Mauritian entity. respectively. Siam (Thailand) is estopped from questioning the delimitation in the maps because [1] Siam did not react to the map when it was so presented. the ICJ took note of the following facts: [1] the practice of taxation was done by the people of Western Sahara for themselves. (1994) A treaty between the colonial powers France and Libya was entered into delimiting its frontiers. In the absence of these circumstances. the sea areas lying within the baseline must be closely linked to the land domain to be subject to the regime of internal waters. Case Concerning Kasikili/Sedudu Island (Botswana v. Later. defined. Mali). Namibia and Botswana. [2] the nomadic nature of the tribes is contrary to the concept of sovereignty. This concept deals with the exercise of sovereignty of a state over a particular territory. (1999) A treaty between the colonial powers Germany and UK was entered into delimiting Southwest Africa. Third. colonial effectivites. Preah Vihear Temple Case. This is because: [1] state practice indicates that a territory inhabited by tribes having a socio-political organization is not terrae nullius. (1986) The dispute relates to the delimitation of part of the common barrier between the former colonies of Upper Volta (now. Effective occupation is a mode of acquiring title which seeks to prove title to the territory. (1962) Estoppel Principle. Effectivites. In addition. over which sovereignty can be acquired by occupation. and imposes the obligation to respect pre-existing international frontiers in the event of State succession. as inherited from the French administration and existing at the moment of independence. The rationale for this principle is that the maintenance of the territorial status quo is seen as the wisest course in order to preserve what has been achieved by people who have struggled for their independence and to avoid a disruption. [3] there was no evidence the people recognized any further allegiance outside their local leaders. State succession is a mode of acquiring title which seeks to prove administrative boundaries. but merely “protection. It aims to secure respect for the territorial boundaries at the moment when independence is achieved. geographical and social entity existing in the tribes of Western Sahara. should be considered. Mali). as evidenced by long usage. The court rejected this contention because there was no common institution recognized by the tribes. Morocco claims to have “immemorial possession. and neither is there proof of effective occupation by Namibia and Botswana. uninterrupted and uncontested for centuries. Western Sahara Case (1975) Area was not terra nullius at the time of Spain’s colonialization. as evidenced by the Arab conquest in 7th Century AD. Thailand). defined. Effectivies. This concept deals with acts of administration. The dispute relates to the location of the boundary around the Kasikili/Sedudu Island between Namibia and Botswana. must respect the boundary set by the colonial powers. [2] Spain never treated its case as occupation. Burkina Faso) and Sudan (now. Uti Possidetis Juris principle. but merely of allegiance of some of the nomadic people. Libya v. ICJ used the uti possidetis juris principle and looked into evidence of colonial heritage Uti Possidetis Juris principle. This principle proves administrative boundaries or colonial heritage during the colonial period. There is no agreement in the treaty as to the exact boundary line. effective occupation. Ratio for this is because it is the land which confers upon the coastal state the right to the waters off its coast. Namibia became independent from Germany.” There are no legal ties so there can be no reversion to either Morocco or Mauritiana. The court rejected this contention because there was no display of control. Terra nullius means a territory belonging to no one. Frontier Dispute Case (Burkina Faso v. [2] France (Cambodia) relied on Siam’s non-objection. Chad. which denotes the cultural. Namibia). Chad and Italy became independent of France and Libya. Later.extent from the general direction of the coast. as successors.

This is a method by which off-shore islands can be attributed to a State’s sovereignty. Eritrea v. Uti Possidetis Juris principle. and title by succession as proof of ownership. Effective occupation. Eritrea’s predecessor. Eritrea did not gain title by succession. Physical occupation is not required where: [1] territory is terra nullius. The principle will be used where the colonial boundaries are not clear as is in this case where lack of sophisticated means of surveying led to cases of overlapping administrative boundaries. [3] its declaration of a bird sanctuary. This is in line with the need to prevent conflict and instability. El Salvador v. Effective occupation. [2] its building of lighthouses. located within the territorial sea of Eritrea. Malaysia) Indonesia and Malaysia lay claim over the islands of Ligitan and Sipadan. The Mohabbakahs islands. Yemen cannot claim title by automatic reversion. Mexico). [2] at the time the occupying state makes its appearance there. . Successor states must respect the colonial boundaries of colonial rulers. Effective occupation. The ICJ did not look into effective occupation because the territories were subject to only 1 colonial power. Primary question in territorial disputes. properly belongs to it. In order to determine the colonial boundaries. concessions. Therefore. The Polynesian in the same year. many countries lay claim over it. and Yemen which claims title by reversion and historic title. the theory of auto-imitation provide that boundaries have a life of their own separate from the treaty itself because a boundary established by treaty achieves permanence. Italy. is prima facie evidence of title. The court will determine who has a better claim. No title by succession.arguing that there is no longer a boundary since the treaty has expired. Effective occupation. (1992) El Salvador and Honduras became independent states after the disintegration of the Spanish empire in Central America. Physical occupation. did not obtain title to the territory under the Treaty of Lausanne because it was provided that the allied powers have yet to agree on who can claim sovereignty over the territory. Even before their independence. No historic title. Uti Possidetis Juris principle. Colonial effectivites. Yemen.” specifically: [1] its regulation on gathering of turtle eggs. colonial effectivites. Clipperton Island Arbitration (France v. with Nicaragua intervening. Spanish Central America had overlapping administrative boundaries. Medieval Yemen had no concept of territorial sovereignty. China’s Claim to the Spratly’s Islands. the ICJ looked into the colonial effectivites or contemporaneous acts. Theory of auto-imitatation. and recognition. and [3] taking of possession and intent to possess is shown by a pubic declaration of sovereignty. (1998) The dispute relates to ownership over the red sea islands between Eritrea which claims title by succession. (1931) Clipperton island is terra nullius considering the territory was uninhabited and without administration. Parties seek to have the boundaries determined. effective occupation. Notwithstanding the fact that the treaty provides for a mere 20-year effectivity. not necessary. France successfully acquired title by occupation. Both countries cite treaties. Islands near coastal states must pertain to such states. The group of islands need not be awarded to one claimant. such as petroleum Portico doctrine. which refer to the belief of one that he belongs to one or the other unit. China bases its claim on discovery. Roque When oil was discovered. ICJ rule in favor of Malaysia because effective occupation was proved by its “effective acts of administration. Honduras. Therefore. Splitting of award. Case Concerning Sovereignty Over Pulau Ligitan and Sipadan (Indonesia v. Sovereignty over the island was declared by France from the moment its navy members landed on the island in 1858 and was published in a Honolulu journal.

Effective occupation is the official exercise of exclusive authority by an occupying state or any authorized person. Note that territory must be terra nullius. Acquisition of territory results where there is long and continued possession. bays. coupled with the enemy’s declaration of its intention to conquer. that of a semi-circle whose diameter is a line drawn across the mouth of that indentation (the semi-circle test). and Jerome for this part. lakes. or an island/islet/rock of the archipelago have been actually occupied by another state. Ben. Conquest is a means by which territory can be acquired by an enemy through the complete and final subjugation of the territory. Possession is a strong evidence of title when coupled with effective occupation. But according to Nicaragua v. This must concur with effective occupation for there to be acquisition of property (Island of Palmas Case). The article discusses the modes of acquiring territory. and is not subject to the right of innocent passage. in Saudi Arabia v. To be considered a bay. but is not enough on its own for the acquisition of title. with or without physical occupation depending on whether or not the island is uninhabited (Clipperton Island Arbitration). Estoppel is a general principle of international law which precludes another claimant from acquiring title. etc). Constructive possession. 6 of the Geneva Convention on the Continental Shelf. a coastal state may regulate access to its ports. the coastal State has absolute territorial jurisdiction. Discovery alone gives the claimant merely an inchoate title.The Philippines bases its claim on effective occupation after Japan renounced its title over the islands. There is constructive possession of the whole island or archipelago where a coast of the island. . INTERNAL WATERS Internal waters are all waters landwards from the baseline of the territory (rivers. Possession. Contiguity. * Sir: foreign vessels without a right to call on ports UNLESS there is a Treaty of Commerce. 6 referred to in some of the cases is Art. 2. Also. Modes of Acquiring Territory: Effective occupation. inchoate title. There can be no constructive possession where the occupied island is so far distant from the others in the group. Aramco the arbitrator said that according to international law ports of every state must be open to foreign vessels and can only be closed when vital interests of the state so requires. Note that territory must be terra nullius. Carol. Bays are well-marked indentations whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. the Art. Sovereignty over these is the same in extent as sovereignty over land. but is now illegal. Note that possession requires animus possedendi. Historic bays are those which are treated by the coastal state as internal waters on the basis of historic rights acknowledged by other states. US. or larger than. the area of the indentation must be as large as. Conquest was once an accepted norm. Conquest. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)2 a. However. Contiguity merely raises a presumption of occupation. thus it may exclude 2 Thanks to Gem. Discovery. Other Principles Insufficient for the Acquisition of Territory: Estoppel. Acquisitive prescription. Friendship & Navigation. For internal waters.

the rule is now 12 miles. It is also by virtue of its sovereignty that the coastal State may regulate access to its ports. but the AngloNorwegian Fisheries Case suggested using the mean between the high and low tides. At all events. Coastal State’s Laws apply in Internal Waters. the reality and importance of which are clearly evidenced by long usage 5. Nicaragua v. US (1986) US military laid mines in Nicaraguan internal waters and in its territorial sea and along Nicaraguan ports causing material damage to Nicaragua and innocent vessels. This was the method used in the Anglo-Norwegian Fisheries Case. take account of economic interests peculiar to the region concerned. The laying of mines within the ports of another State is governed by the law relating to internal waters. Regarding its width. first in the exclusive economic zones and beyond territorial waters and on the high seas. If this right of access to the port is hindered by the laying of mines by another State. Freedom of Navigation hampered. The extent of the territorial sea depends on the baseline. the drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast 2. the baselines shall not be drawn to and from low-tide elevations 4. it is true that in order to enjoy access to ports. Singapore) The sovereignty of the coastal state over its territorial sea. the airspace above it. however. foreign vessels possess a customary right of innocent passage in territorial waters for the purposes of entering or leaving internal waters. Internal waters. the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters 3. But this equidistant rule does not apply where historic title or other special circumstances require a different measurement. the original rule was the “cannon shot” rule. that where the application of the 12-mile rule to neighboring littoral states would result in overlapping. The “normal baseline” is drawn following the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State. If the vessel is docked. However the sea is subject to the right of innocent . If the foreign vessel is merely passing through. 7(1) of UNCLOS. this method may not be applied in such a manner as to cut off the territorial sea of another State from the high seas or an EEZ (ex. TERRITORIAL SEA This is the belt of sea outwards from the baseline and up to 12 nautical miles beyond. It is therefore the sovereignty of the coastal State which is affected in such cases. the dividing line is instead a median line equidistant from the opposite baselines.” These are drawn connecting selected points on the coast without appreciable departure from the general shape of the coast. where the width was measured in terms of the range of shore-based artillery. Take note. the coastal State may exercise jurisdiction (English rule). Coastal State’s Sovereignty extends to internal waters and airspace. which are subject to the sovereignty of the coastal State. This article provides that straight baselines may be used where the coastline is deeply indented and cut into. This later became the 3-mile rule. and is now in Art. Archipelagic states instead use “straight baselines. b. On the other hand.all foreign vessels from its ports. it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internal waters. There is no fixed norm for determining this low-water line or mark. the flag State has jurisdiction (French rule). and the seabed is the same as its sovereignty over its land territory. This line follows the curvatures of the coast and therefore would normally not consist of straight lines. or if there is a fringe of islands along the coast in its immediate vicinity. The position is similar as regards mines placed in the territorial sea. The width of the territorial sea is measured from this line. Some guidelines to be observed in using this method: 1. Under the UNCLOS. The US Government did not issue any public and official warning to international shipping of the existence and location of the mines. what is infringed is the freedom of communications and of maritime commerce. and the right of free access enjoyed by foreign ships. The baseline is the low-water line along the coast as marked on large scale charts officially recognized by the coastal State. There are 2 ways of drawing the baseline. it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation. Such is guaranteed.

Take note that islands and rocks which cannot sustain human habitation or economic life have their own territorial sea. Norway’s baselines were valid. Anglo-Norwegian Fisheries Case (1951) In 1935 Norway delimited a certain fisheries zone which was exclusively reserved to its nationals. they may take necessary steps to prevent not innocent passage. and any other activity not having a direct bearing on passage. it is the low-water mark as opposed to the high- water mark. using straight baselines. The coastal state may exercise its civil jurisdiction by levying execution or arresting the ship only in respect of obligations or liabilities assumed or incurred by the ship itself in the course of or for the purpose of its voyage through the waters of the coastal state. The Court upheld this Norwegian delimitation. . This has been validly done. there are exceptions. the ship’s master or diplomatic agent/consular officer of the flag state requested the assistance of the local authorities 4. The real question raised in the choice of base-lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters. Among these some reference must be made to the close dependence of the territorial sea upon the land domain. polluting. research activities. This delimitation. the coastal state can exercise its criminal jurisdiction in connection with any crime committed on board the ship during its passage if: 1. the geographical configuration of which is as unusual as that of Norway. not only in the case of well-defined bays. Another fundamental consideration is the more or less close relationship existing between certain sea areas and the land formations which divide or surround them. With respect to criminal jurisdiction. Innocent passage is navigation through waters in an expeditious and continuous manner. but also in cases of minor curvatures of the coast line where it was solely a question of giving a simpler form to the belt of territorial waters. Certain basic considerations inherent in the nature of the territorial sea bring to light certain criteria which. Although it is true that the act of delimitation is necessarily a unilateral act. The last consideration is that of certain economic interests peculiar to a region. This idea. Some examples of passage which is not innocent are fishing. the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast. weapons practice. the flag state has criminal and civil jurisdiction. Submarines however must surface. The delimitation of sea areas has always an international aspect. For the purpose of measuring the breadth of the territorial sea.passage by other states. spying. though not entirely precise. or the mean between the two tides. Within the territorial sea. it is necessary to suppress illicit traffic in narcotic drugs. which is not prejudicial to the peace. Thus. which can be adapted to the diverse facts in question. the reality and importance of which are clearly evidenced by long usage. or security of the coastal state. However. Use the low-water mark. But the Norwegian delimitation is still subject to certain principles which make it possible to judge the delimitation’s validity under international law. can provide courts with an adequate basis for their decisions. was opposed by the UK. should be liberally applied in the case of a coast. because only the coastal State is competent to undertake it. It follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements. the consequences of the crime extend to the coastal state 2. Coastal states do have rights of protection. which has generally been adopted in the practice of States. This criterion is the most favourable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory. the crime disturbs the peace of the country or good order of the territorial sea 3. it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. which is the unilateral right to verify the innocent character of passage. This method consists of selecting appropriate points on the low-water mark and drawing straight lines between them. good order. Straight baselines method. and they may temporarily suspend the right of innocent passage if this is essential for the protection of its security. The rule on innocent passage applies to ships and aircrafts. It is the land which confers upon the coastal State a right to the waters off its coasts. which is at the basis of the determination of the rules relating to bays. The coastal zone involved has a distinctive configuration (long and very broken). the validity of the delimitation with regard to other States depends upon international law.

On this basis the Court found that El Tigre appertained to Honduras and Meanguera and Meanguerita to El Salvador. Survey Feet or approximately 6076. California (1965) Case involves the interpretation of some terms used in the Submerged Lands Act.the average elevation of all the daily lower low tides occurring over a period of 18. Thus. and waters between islands and the mainland are not per se inland waters. Thus. "Mean lower low water" . Jurisdiction. State of California and the Federal government are trying to determine who owns and has jurisdiction over the subsoil. "Low-tide elevation" .10333 U.El Salvador v. the Court discusses the definition of relevant maritime terms.6 years.6 years. no boundaries were delimited in the Gulf and thus the waters had remained undivided. "Mean high water" . . "Geographical mile" . Honduras. However.the average elevation of all the high tides occurring over a period of 18.a distance of 1852 meters (6076.S. None of the islands had been terra nullius in 1821.(Art. Thus. United States vs. sovereignty over the islands had been achieved according to the uti possidetis juris principle (colonial boundaries are continually adopted). California owns and has exclusive jurisdiction over such within 3 miles or the tidelands along its coast (defined as the shore of the mainland and of islands. Considering the dimensions and proportions. seabed of the continental shelf and the resources located therein along the California. and (b) The line marking the seaward limit of inland waters. on islands. Court looked at the Central American Court of Justice of 1917 conclusion that the Gulf of Fonseca effectively constituted a "closed sea" belonging to all three coastal States communally. To resolve such. Thus the Court was forced to concentrate more on the behaviour of the parties with regard to the islands after 1821. the Gulf would today be regarded as a juridical bay in accordance with UNCLOS. the date of independence. Court adopts the definitions in the International Convention on the Territorial Sea and the Contiguous Zone: “Coastline” . with the exception of a three mile zone established unilaterally by each coastal State.11549 International Feet). In contrast to the frontier delimited on land. Gulf of Fonseca = Juridical Bay under UNCLOS and Historical Bay under Customary International Law. between the line of mean high water and the line of mean lower low water). According to the Court. the Central American Court viewed the Gulf of Fonseca as a condominium resulting from the succession of the three States from Spain in 1821.waters between islands.a naturally-formed area of land surrounded by water. which is neither defined in the 1958 Convention nor in the Convention of 1982. and on low-tide elevations lying wholly or partly within three geographical miles from the line of mean lower low water on the mainland or on an island. Until then. Court held that Gulf of Fonseca was a case of "historic waters". Border incidents led to mounting tension between El Salvador and Honduras and. Definitions. to an armed conflict in 1969 Islands of the Gulf of Fonseca. the question of the land frontier followed in 1861. and includes the outermost permanent harbour works that form an integral part of the harbour system "Island" . the application of this principle suffered from the lack of documents that might have testified clearly the appertainance of the islands to one administrative district or the other. the Gulf was not a single State bay but constituted a so called historical bay. which is above the level of mean lower low water but not above the level of mean high water. which is above the level of mean high water. Nicaragua Intervening (1992) The legal status of the islands located in the Gulf of Fonseca became an issue of dispute. 8 of the Convention on the Territorial Sea and the Contiguous Zone) (a) The line of mean lower low water on the mainland. ultimately. whereby the three coastal States had succeeded to communal sovereignty. the communal succession for the three States was a logical consequence of the uti possidetis juris principle with regard to the sovereignty of the Gulf. However. Federal government owns and has exclusive jurisdiction over such beyond 3 miles seaward from the coastline.a naturally-formed area of land surrounded by water at mean lower low water. This includes modifications by natural or artificial means. “Roadsteads” . the Gulf had been a single State bay belonging to Spain alone. the decision of the Central American Court underlined the fact that at the time of independence. From this fact the Court concluded that its decision had to be taken on the basis of customary international law. the waters of the Gulf had never been divided or otherwise delimited after the independence of the three coastal States.

U. (b) Any port. Through these waters. it is generally agreed that historic title can be claimed only when the "coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations. The line marking the seaward limit of inland waters. they were a part of its nation may exercise land territory. We recognized in California the desirability of "a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations. landward of a straight line across its mouth."Inland waters" (Par. The ICTS definition prevails and it is as follows . drawn within the bay so as to enclose the greatest possible amount of water.S. as to contain landlocked waters. and having an area. Court sustains the adoption of the ICTS definitions in the U. at least as great as the area of a semicircle whose diameter equals the length of the closing line across the entrance of the bay. argues that the definitions of inland waters contained in the International Convention on the Territorial Sea (ICTS) should prevail over Louisiana’s contention that it should be the “Inland Water Line” (IWL) fixed by the Commandant of the Coast Guard in 1895. Louisiana (1969) The issue is about the correct definition of “Inland Waters”. or the sum of such closing lines if the bay has more than one entrance)." c. US v. ships and aircraft of all countries are allowed “transit passage. landward of a straight line across its entrance or. strong as it is. sea Nearest to the Beyond the inland Outside the territorial nation's shores are waters." 3 Zones of Navigable Seas under General Principles of IL Inland. which are its. v." Baseline. landward of a straight line not over 24 geographical miles long. The policy in favor of a certain and stable coastline. 2(b) Convention on the Territorial Sea and the Contiguous Zone) waters landward of the baseline of the territorial sea and includes: (a) Any river or stream flowing directly into the sea. California. (c) Any "historic bay. including islands within the bay."the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.S. STRAITS Straits used for international navigation (to navigate between one part of the high seas or an EEZ and another part of the high seas or an EEZ) are under the purview of UNCLOS. Sustained the California cas. or High seas waters territorial. An estuary of a river is treated in the same way as a bay. but the legal regime in such straits in which passage is regulated in whole or in part by longstanding international conventions in force specifically relating to such straits is not affected. Transit passage is the exercise of the freedoms of navigation and overflight solely for the purpose of expeditious and continuous transit .” as long as they proceeded without delay and without threatening the bordering states. (d) Semi Circle Test Any other bay (defined as a well-marked coastal indentation having such penetration. if the entrance is more than 24 geographical miles wide. is also to be drawn in accordance with the definitions of the Convention on the Territorial Sea and the Contiguous Zone. in proportion to the width of its entrance. and sea. is a not subject to the sovereignty of the belt known as the. dominion of any nation. Stable Coastline Policy – not convincing enough. landward of its outermost permanent harbor works and a straight line across its entrance. defined essentially as a bay over which the United States has traditionally asserted and maintained dominion with the acquiescence of foreign nations. as much as if Within it the coastal single nation. or internal Marginal. California case. and the extensive control but coastal nation has the cannot deny the right privilege even to of innocent passage exclude foreign to foreign nations vessels altogether.” Historic title. would necessarily outweigh countervailing policy considerations under the Submerged Lands Act. These are subject measured from their international waters to the complete seaward edge." as that term is used in paragraph 6 of Article 7 of the Convention. Whether particular waters are inland has depended on historical as well as geographical factors but as we said in United States v.

and the destroyers Saumarez and Volage. in which case the right of innocent passage would apply 3. Also. Take note that these duties (of bordering States and foreign vessels) are also applicable to archipelagic sea lanes passage. every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. including maritime scientific research and hydrographic survey ships. The decisive criterion is its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation. may not carry out any research or survey activities without the prior authorization of the bordering states. and there exists seaward of the island a route to the high seas or EEZ of similar convenience. Innocent passage through straits is a right recognized by international law. if there exists through the strait a route through the high seas or an EEZ of similar convenience. the cruisers Mauritius and Leander. A total number of 2. in which case the freedoms of navigation and overflight would apply 2. During transit passage. Ships and aircraft exercising the right of transit passage have the following duties: 1.(thus they must proceed without delay) of the strait. For these states. Bordering states have the following duties: 1. or political independence of States bordering the strait. provided these points are sufficiently close to one another and that within such baselines are included the main islands and an area in which the . The nature of the Channel satisfies this criterion. the straight baselines are drawn between the outermost points of the outermost islands. 884 ships have passed through the Channel in a period of 1 year and 9 months. refrain from any threat or use of force against the sovereignty. not to impede the right of transit passage 2. BASIS of such an obligation: 1. if the strait is formed by an island of a state bordering the strait and its mainland. to give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge 3. Combat formation determines if a passage is innocent. Several ships struck a mine and were damaged. ARCHIPELAGOS Archipelagic states are those which are made up wholly of one or more archipelagos. States alongside the straits however are able to regulate navigation and other aspects of passage. left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. d. to proceed without delay through or over the strait 2. elementary considerations of humanity. territorial integrity. Obligation incumbent upon Albanian authorities consisted in notifying for the benefit of the shipping in general. It has been a useful route for international maritime traffic. even more exacting in peace than in war 2. or in any manner in violation of the principles in the UN Charter 3. Corfu Channel Case (1949) A squadron of British warships. the existence of a minefield in Albanian territorial waters and in warning the British warships of the imminent danger to which the minefield exposed them. * Sir: international straits are subject to non-suspendible rights of innocent passage. Transit passage is inapplicable in three instances: 1. in which case the right of innocent passage would apply. to comply with the other provisions of UNCLOS. Albania was aware of the minelaying since the geography of the strait easily allowed Albanian lighthouse watchers to view such activities. foreign vessels may not carry out research and survey activities without the prior authorization of the bordering States. refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless necessary due to force majeure or distress 4. foreign ships. Passage through it therefore cannot be prohibited by a coastal State in time of peace. the principle of freedom of maritime communication 3. UK sues People's Republic of Albania Albania’s failed its Duty – it is liable. not to suspend transit passage. if the strait is between a part of the high seas or EEZ and the territorial sea of another state.

Take note that under UNCLOS. to where the depth allows exploitation. the waters are high sea and not subject to the sovereignty of the coastal state. falling within archipelagic waters. expeditious. Moreover. the right of archipelagic sea lanes passage may still be exercised through routes normally used for international navigation.water area to land area ratio is between 1:1 and 9:1. This is criticized as being unduly burdensome for archipelagic states. such baselines shall not be drawn to and from low-tide elevations 4. but would do acts inimical to the coastal State. or any express proclamation. like internal waters) Under the Philippine Constitution. thus beyond the State’s criminal jurisdiction. and unobstructed passage in sea lands and air routes through or over the archipelagic waters and the adjacent territorial sea of the archipelagic state in transit between one part of the high seas or an EEZ and another part of the high seas or an EEZ (similar to transit passage). the length of such baselines shall not exceed 100 nautical miles. This right does not affect the right of navigation of others. follow the regime of the EEZ. f. Take note that the power of control does not change the nature of the waters. The coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs. these shall not be applied in such a manner as to cut off from the high seas or EEZ the territorial sea of another State While archipelagic states have sovereignty over a sea area enclosed by the baselines. Some guidelines in drawing the baselines: 1. this right does not extend to non-resource material . beyond that limit. to erect needed installations. (Archipelagic waters also inside baselines. all waters connecting the islands are internal waters. immigration. and to erect a safety zone over its installations with a radius of 500 meters. It thus extends 12 nautical miles from the edge of the territorial sea. and security…. The coastal state has the right to explore and exploit its natural resources. These rights do not depend on occupation.” e. All waters inside these baselines are archipelagic waters. THE CONTIGUOUS ZONE This is an area of water not exceeding 24 nautical miles from the baseline. including the maintenance and replacement of submarine cables. Thus when the country ratified the UNCLOS. effective or notional. beyond the 4 areas. * Sir: this was added as a response to ships which would linger in areas beyond the State’s jurisdiction. Take note that this is the only optional regime. And while archipelagic states may designate sea lanes and air routes suitable for continuous and expeditious passage over these archipelagic waters. and (b) the seabed and subsoil of areas adjacent to islands. THE CONTINENTAL SHELF This refers to (a) the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea. the drawing of the baselines shall not depart to any appreciable extent from the general configuration of the archipelago 3. independence. An archipelagic state shall respect existing agreements with other states and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states in certain areas. the waters inside the archipelagic baselines are called archipelagic waters. if the archipelagic state does not designate such lanes. except that up to 3% of all the baselines may reach up to 125 miles 2. Remember that the jurisdiction is limited. or sanitation authority over its territorial waters or territory and to punish such infringement. Under specified circumstances the continental shelf can extend up to a distance of 350 miles. Beyond the territorial sea. all other states enjoy the right of innocent passage through designated sea lanes. a declaration was added. Foreign ships and aircraft also have the right of archipelagic sea lanes passage. which refers to continuous. providing that: “The signing of the Convention… shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution… Such signing shall not in any manner affect the sovereign rights of the Republic… under and arising out of the Treaty of Paris… and the Treaty of Washington… The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty. fiscal. to a depth of 200 meters or.

Inherent right to territory. although covered with water. the right does not depend on its being exercised. Submarine areas do not really appertain to the coastal State because they are near it. This type of case is different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it. Furthermore. Thus whenever a given submarine area does not constitute a natural extension of the land territory of a coastal State. or even identical. For the latter. and inconsistent with. appertaining to the coastal State and not the determination de novo of such an area. and conduct marine scientific research on the continental shelf. nor have any special legal acts to be performed. is quite foreign to. even though in a number of cases the results may be comparable. Adjacent. making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise. Islands do have their own continental shelves. * Sir: compare the rights of the coastal State for the EEZ (resources = all encompassing) and the continental shelf. or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension. the Netherlands. Yet this does not suffice to convert what is a method into a rule of law. It has never been doubted that the equidistance method of delimitation is a very convenient one. but not the same thing as awarding a just and equitable share of a previously undelimited area. Delimitation in an equitable manner is one thing. the basic concept of continental shelf entitlement. Opposite v. in the sense that. Delimitation is a process which involves establishing the boundaries of an area already.in the shelf area such as wrecked ships and their cargoes. rocks and minor coastal projections. only for living resources permanently attached/sedentary. the most appropriate one. It follows that the notion of apportioning an as yet undelimited area. More fundamental: natural prolongation or continuation of land territory or domain or land sovereignty of the coastal state. authorize. even if it is less close to it. even though that area may be closer to it than it is to the territory of any other State. ignoring the presence of islets. due to the concave German coastline. or in which 'special circumstances' cannot be shown to exist. by virtue of its sovereignty over the land. For opposite States the natural prolongations may meet and overlap. via the bed of its territorial sea which is under full sovereignty. the disproportionally distorting effect of which can be eliminated by other means. which involved Denmark. and can only be delimited by a median line. Denmark and the Netherlands both wanted to apply the equidistance principle. Its existence can be declared but does not need to be constituted. The rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio. an extension of it under the sea. they are a prolongation or continuation of that territory. Thus the question of which parts of the continental shelf 'adjacent to' a coastline bordering more than one State fall within the appurtenance of which of them. Equidistance method not obligatory. Take note that artificial islands or installations are not islands under UNCLOS. North Sea Continental Shelf Cases (1969) This case concerned the delimitation of the continental shelf in the North Sea. not to be determined on a basis exclusively of proximity. there is here an inherent right. and Germany. and. it cannot be regarded as appertaining to that State. no special legal process has to be gone through. and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In order to exercise it. it may not necessarily be the only. such a line must effect an equal division of the particular area involved. nor in all circumstances. Whereas a median line divides equally . Even if proximity may afford one of the tests to be applied and an important one in the right conditions. though coastal states may establish safety zones and prescribe safety measures around them. into & under the high seas. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion. in principle. In short. Appurtenance (of the continental shelf) to a State ≠ Proximity. Coastal states also have the right to regulate. while Germany opposed as this would disproportionately reduce its area. remains to this extent an open one.

The distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters. alone or in combination. ignoring such geographical circumstances. for this purpose the equidistance method can be used. The appurtenance of the shelf to the countries in front of whose coastlines it lies is a fact. in certain geographical circumstances: (a) The slightest irregularity in a coastline is automatically magnified by the equidistance line as regards the consequences for the delimitation of the continental shelf. not only over the seabed underneath the territorial waters but over the waters themselves. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible. despite their distance from the coast. There can never be any question of completely refashioning nature. An inequity is created merely because one coastline is roughly convex and the other concave. given a geographical situation of quasi-equality as between a number of States. being of itself creative of inequity. (c) the continental shelf of any State must be the natural prolongation of its land territory and must not encroach upon what is the natural prolongation of the territory of another State. Criteria to consider: 1. Equity does not necessarily imply equality. which will not be the case when either of them insists upon its own position without contemplating any modification of it. Geology. Since the land is the legal source of the .between 2 opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them. if the equidistance method is used. and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement. It is not a question of totally refashioning geography whatever the facts of the situation but. any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. according to the areas involved. they are under an obligation so to conduct themselves that the negotiations are meaningful. then the greater the irregularity and the further from the coastline the area to be delimited. 2. meet and intercross in localities where. it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. (b) the parties are under an obligation to act in such a way that. arrived at in accordance with equitable principles: (a) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement. have been given broadly equal treatment by nature except that the configuration of one of the coastlines would. The continental shelf is an area physically extending the territory of most coastal States into a species of platform. but other methods exist and may be employed. equitable principles are applied. the more unreasonable are the results produced. No objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. in the particular case. Inequity of the equidistance method. was based solely on the equidistance method. There is also a direct correlation between the notion of closest proximity to the coast and the sovereign jurisdiction which the coastal State is entitled to exercise and must exercise. which does not exist in respect of continental shelf areas where there is no jurisdiction over the superjacent waters. but produce their maximum effect in the localities where the main continental shelf areas lie further out. a lateral equidistance line often leaves to 1 of the States concerned areas that are a natural prolongation of the territory of the other. the bed of the sea still unquestionably consists of continental shelf. The principle is that the land dominates the sea. of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result. But here. A study of these convergences shows how inequitable would be the apparent simplification brought about by a delimitation which. Can use different methods. and over the seabed only for purposes of exploration and exploitation. and equity does not require that a State without access to the sea should be allotted an area of continental shelf. Geography. it happens that the claims of several States converge. (b) Where there is no outer boundary to the continental shelf. there are 3 States whose North Sea coastlines are in fact comparable in length and which. and taking all the circumstances into account. Delimitation must be by agreement. deny to one of these States treatment equal or comparable to that given the other two. and it can be useful to consider the geology of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation. Thus it has been seen in the case of concave or convex coastlines that if the equidistance method is employed.

Italy (north). but is silent as to the method to be followed to achieve it. . 4. and those with markedly concave or convex coasts. a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. "equity does not necessarily imply equality". Unity of any deposits. The delimitation of a continental shelf boundary must be effected by the application of equitable principles in all the relevant circumstances in order to achieve an equitable result. Relation to EEZ & legal basis of continental shelf rights. The Mediterranean is bordered by Tunisia (east). Yet it frequently occurs that the same deposit lies on both sides of the line dividing a continental shelf between two States. It restricts itself to setting a standard. Although there can be a continental shelf where there is no EEZ. RE: UNCLOS. the principle that although all States are equal before the law and are entitled to equal treatment. The two institutions . and since it is possible to exploit such a deposit from either side. Reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines. to the south of Italy and to the north of Libya. the principle of respect due to all such relevant circumstances. or compensating for the inequalities of nature. 3. relative economic positions of the Parties. natural prolongation. it does however signify that greater importance must be attributed to elements. All that is needed is to refer to the undertakings entered into by the coastal States of that sea with a view to ensuring the most efficient exploitation or the apportionment of the products extracted. or to reduce very irregular coastlines to their truer proportions. The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of this legal regime. Factors which weren’t considered in this case: landmass. such as distance from the Coast. nor does it seek to make equal what nature has made unequal. Some equitable principles: the principle that there is to be no question of refashioning geography. these being measured according to their general direction in order to establish the necessary balance between States with straight. The concepts of natural prolongation and distance are therefore not opposed but complementary. Since the rights enjoyed by a State over its continental shelf would also be possessed by it over the sea-bed and subsoil of any EEZ which it might proclaim. which in spite of its physical origins has throughout its history become more and more a complex and juridical concept. What this means is that where the continental margin does not extend as far as 200 miles from the shore. irrespective of the physical nature of the intervening sea-bed and subsoil. to endow this standard with specific content. and it is left to States themselves. in order to achieve an equitable solution. The choice and application of the appropriate technical methods would be a matter for the parties. Malta (1985) This concerned the delimitation of the continental shelf between Libya and Malta. and the principle that there can be no question of distributive justice. the related principle of non-encroachment by one party on the natural prolongation of the other (the coastal State enjoys sovereign rights over the continental shelf off its coasts to the full extent authorized by international law in the relevant circumstances). the rights which the EEZ entails over the sea-bed of the zone are defined by reference to the regime laid down for the continental shelf. The Convention sets a goal to be achieved. or to the courts. Although the institutions of the continental shelf and the EEZ are different and distinct.power which a State may exercise over territorial extensions to seaward. Malta is a group of islands situated in the Mediterranean. which provided that the delimitation of the continental shelf be effected by agreement on the basis of international law. which are common to both concepts. one of the relevant circumstances to be considered for the delimitation of the continental shelf of a State is the legally permissible extent of the EEZ appertaining to that same State. and the principle of equality. security considerations. This does not mean that the concept of the continental shelf has been absorbed by that of the EEZ.continental shelf and EEZ – are linked together in modern law. Libya’s coast is significantly larger than that of Malta. Greece (west) and Libya (south). It follows that the distance criterion must now apply to the continental shelf as well as to the EEZ. Libya v. there cannot be an EEZ without a corresponding continental shelf. it must first be clearly established what features do in fact constitute such extensions. Equitableness of result is primary. is in part defined by distance from the shore.

Under existing law. since they may have a weight in the assessment of the equities of the case which it would be proper to take into account and to reflect in an adjustment of the equidistance line. To achieve this purpose. What the Court intended was proportionality was to be used as a means of identifying and then correcting the kind of distortion that could arise from the use of a method inapt to take adequate account of some kinds of coastal configuration. and is equitable. the coasts of the Parties are opposite to each other.Proportionality is considered. Were the Court to treat it as final. is the most judicious manner of proceeding with a view to the eventual achievement of an equitable result. In our discussion. The law applicable to claims relating to continental shelves located less than 200 miles from the coasts of the States on a criterion of distance from the Coast or on the principle of adjacency as measured by distance. and the equidistance line between them lies broadly west to east. This line meets the requirements of the test of proportionality. Due to the great difference in length of the coasts and the general geographical context (the Maltese islands appear as a relatively small feature in a semi-enclosed sea). Guinea v Guinea-Bissau (1985) The case regarding the marine delimitation was removed from the list of cases of the ICJ because both parties mutually dropped the case. Sir said that the method of half effect could be applied. Delimitation process: 1. In this delimitation between opposite coasts. to achieve an equitable result in a situation in which the equidistance line is prima facie the appropriate method. Harry agreed with Turkey’s theory since based on the map. it must be demonstrated that the equidistance method leads to an equitable result in the case in question. Libya Libya and Tunisia requested the ICJ to determine what principles and rules of international law may be applied for the delimitation of the area of the continental shelf appertaining to Libya and to that of . Tunisia v. to grant continental shelves would encroach in the territorial sea of Turkey) The issue of whether these islands have their own continental shelf concerns matters of entitlement (do the island deserve shelves). so that its adjustment can be satisfactorily and simply achieved by transposing it in an exactly northward direction. Thus the choice of the criterion and the method to be used to arrive at a provisional result should be made in a manner consistent with the concepts underlying the attribution of legal title. Within the area with which the Court is concerned. Make a provisional delimitation by using a criterion and a method both of which are clearly destined to play an important role in producing the final result. the tracing of a median line between those coasts. the delimitation line must be adjusted so as to lie closer to the coasts of Malta. all relevant circumstances must be examined. ICJ has no jurisdiction since Turkey did not accept such jurisdiction in the Rome Communique. which may call for a correction of the initial results. Aegean Sea Continental Shelf Case (1978) Though the Court was primarily focused on the issue of jurisdiction in this case. Turkey’s Theory: “islands in question are mere protuberances of the Turkish continental shelf and have no continental shelf of their own. Take note that the median line drawn is only provisional. in order to ensure the achievement of an equitable solution. the relevant issue is whether or not certain islands under Greek sovereignty are entitled to a continental shelf of their own and entitle Greece to call for the boundary to be drawn between those islands and the Turkish Coast. Examination of the provisional solution in light of the requirements derived from other criteria. delimitation (whats the area of these shelves) and territorial status (will it encroach on established national boundaries) *According to the other reviewer. Their main reason was that both parties agreed on establishing an international agency for the join exploitation of the maritime zone in question. given all relevant circumstances. it would be conferring on the equidistance method the status of being the only method the use of which is compulsory in the case of opposite coasts. No jurisdiction. 2. Sir said that in this case the principles in the Sipadan case and Eritrea-Yemen arbitration would apply. Also remember that.” (Court did not decide on this issue since it had no jurisdiction but I think Sir. by way of a provisional step. the result to which the distance criterion leads must be examined in the context of applying equitable principles to the relevant circumstances.

But the equidistance-special circumstances rule means that the obligation to apply the equidistance principle is always one qualified by the condition "unless another boundary line is justified by special circumstances". while they do not. In determining the angulation of the second like the existence of the Kerkennah Islands (Tunisia) should be considered. the boundary between States abutting on the same continental shelf is to be determined on equitable principles. and clarify the practical method for the application of these principles so they can delimit without difficulty The Method of Half-effect. Throughout the English Channel where the coasts of France & the UK are opposite each other the boundary should. so principle of natural prolongation cannot be used.Tunisia. in principle. Note that in this case the land territory of the two States is adjacent but because of the change in direction of the coast of Tunisia it seems opposite at some point. have any continental shelf of their own. Hence. a lateral equidistance line extending outwards from the coasts of adjacent States for long distances may result in an inequitable delimitation by reason of the distorting effect of individual geographical features. The distinction drawn between the two geographical situations is one derived not from any legal theory but from the very substance of the difference between the two situations. and the relevant circumstances which characterize the area. a geographical feature. Features of the Channel considered in this case. Consequently. and the other disregarding the island totally. The delimitation line actually adopted is then drawn between the first two lines. half-effect must be used. as though it did not exist. Opposite states. The Court has to take into account not only the islands. Anglo-French Arbitration (1979) This involved the delimitation of the continental shelves of France and UK in the North Sea. or possibly by treating the island as displaced toward the mainland by half its actual distance therefrom. The first step should be to determine the course of the median line within the Channel. but also the low-tide elevations which. in effect. The delimitation is to be effected in accordance with equitable principles considering all relevant circumstances. The Kerkennah Islands is surrounded by islets and low-tide elevations. failing agreement. It is the combined effect of the side-by-side relationship of the two States and the prolongation of the lateral boundary for great distances to seawards which may be productive of inequity and is the essence of the distinction between "adjacent" and "opposite" coasts situations. if the ICJ lets the line run parallel to the island coastline that would be giving the islands too much weight. as do islands. Under Article 6 the equidistance principle ultimately possesses an obligatory force which it does not have in the same measure under the rules of customary law. or as bisector of the angle which they make with each other. either in such a way as to divide equally the area between them. Take note that the Hurd DeepHurd Deep Fault Zone. In defining the angulation of the initial line. wasn’t considered by the Court given the essential geological continuity of the area (the Hurd Deep were just discontinuities in the seabed and subsoil which didn’t disrupt the essential unity of the continental shelf). the Court considered the effect of certain geological features to the delimitation. First step: the legal frame to be used is that of delimitation between “opposite” States. The area is delimited by two lines. The area to be delimited constitutes a single continental shelf as the natural prolongation of both States. The technique involves drawing two delimitation lines. The initial delimitation line indicated by the ICJ will therefore extend from the outer limit of the territorial sea until its intersection with the parallel of latitude of the point on the coast of the Gulf of Gabes. However. the Court took note of the existence of the line employed de facto by each Party dividing their petroleum concessions. decide according to equitable principles. the change in direction of the coast is a fact which must be taken into account. The relationship of "opposite" or "adjacent" States is nothing but a reflection of the geographical facts. The role of the "special circumstances" condition is to ensure an equitable delimitation and the combined "equidistancespecial circumstances rule". gives particular expression to a general norm that. be the median line equidistant from the respective coasts. as well as the new accepted trends in the Third Conference on the Law of the Sea. the question whether the use of the equidistance principle or some other method is appropriate for achieving an equitable delimitation is very much a matter of appreciation in the light of the geographical and other circumstances. The Equidistance-Special Circumstances method. Whereas in "opposite" States a median line will normally effect a broadly equitable delimitation. In this case. The Channel Islands . Some effect must be attributed to it. do enjoy some recognition in international law for certain purposes. As for the second line. one giving to the island the full effect attributed to it by the delimitation method in use.

Under customary law. if not always to the same extent. on equitable grounds. prima facie. if the force of the principle of natural prolongation of territory were absolute. a circumstance creative of inequity and calling for a method of delimitation that in some measure redresses the inequity. to maintain the appropriate balance between the two States in relation to the continental shelf as riparian States of the Channel with approximately equal coastlines. but may be subject to qualification. The principle of natural prolongation of territory cannot be said to require that the continental shelf to the north and northwest of the Channel Islands should be considered as automatically and necessarily appurtenant to them rather than to France. vis-à-vis the Channel Islands. the concept of the continental shelf is a juridical concept which connotes the natural prolongation under the sea not of a continent or geographical land mass but of the land territory of each State. if the Channel Islands are left out of account. but direct dependencies of the British Crown which were treated as part of the UK. Any ground of equity is to be looked for in the particular circumstances of the case and in the particular equality of the two States in their geographical relation to the continental shelf of the Channel. Factors not considered: navigational defence and security interests in the region. the southern limit of the continental shelf held by the Court to be appurtenant to the French Republic in this region to the south of the mid-Channel median line. The application of that principle in such a case has to be appreciated in the light of all the relevant geographical and other circumstances. resulting in equality of their geographical relation to the continental shelf of the Channel. This means that the scope and the conditions for its application are not determined exclusively by the physical facts of geography but also by legal rules. The question is what areas of continental shelf are to be considered as legally the natural prolongation of the Channel Islands rather than of France. The principle of natural prolongation of territory is neither to be set aside nor treated as absolute in a case where islands belonging to one State are situated on continental shelf which would otherwise constitute a natural prolongation of the territory of another State. prima facie. Principles of equity. The question is whether the Channel Islands should be given the full benefit or the application of the principle of natural prolongation in the areas to their north and northwest or whether their situation close to the mainland of France requires. In delimiting its course in the Channel Islands region the Channel Islands themselves are to be disregarded. as a larger island. as well as on any relevant considerations of law and equity. the primary boundary between them shall be a median line. since the UK was the responsible authority wrt the continental shelf) are situated on the French side and within the arms of a gulf on the French coast. Yet. The presence of these islands in that particular situation disturbs the balance or the geographical circumstances which would otherwise exist between the Parties in this region as a result of the broad equality of the coastlines of their mainlands. The two-fold solution wrt Channel Islands: First. the method adopted for delimiting the boundary must ensure that the delimitation accords with equitable principles. If this conclusion is tested by applying the equidistance-special circumstances rule. since their continental shelf must be the subject of a second and separate delimitation. Second step: to delimit a second boundary establishing. It is . not absolute. Characteristics of the area: approximate equality of the mainland coastlines. The question of the appurtenance to the Channel Islands of the areas of continental shelf extending to their north and north-west is not therefore resolved merely by referring to the principle of natural prolongation. this will result in a substantial diminution of the area of continental shelf which would accrue to France. Principle of natural prolongation. a small island would block the natural prolongation of the territory of the nearby mainland in the same way. Features considered. it is clear (given the special circumstances provision & emphasis on equitable principles) that the force of the cardinal principle of natural prolongation of territory is not absolute.(not constitutionally part of the UK. the presence of the Channel Islands must be considered. as a "special circumstance" justifying a delimitation other than the median line. In international law. Moreover. The legal framework is that of two opposite States one or which possesses island territories close to the coast of the other State. some modification of the application of the principle in those areas. If the Channel Islands are given full effect. This fact appears to be. The essential continuity or the continental shelf of the English Channel and Atlantic region has been emphasized. The doctrine of the equality of States cannot be considered as constituting such an equitable ground (as this would have the effect of refashioning geography).

the method employed was to give half. Just as it is not the function of equity in the delimitation of the continental shelf completely to refashion geography. in the absence of agreement and unless another boundary is justified by special circumstances. This method appears to be an appropriate and practical method of abating the disproportion and inequity which otherwise results from giving full effect to the Scilly Isles as a basepoint for determining the course of the boundary. secondly. However this doesn’t authorize the use of any method in order to effect an equitable delimitation. when combined with a large extension of the continental shelf seawards from those coasts. Similarly. There is nothing in the language of Art. the coasts or the two countries. which makes individual geographical features on either coast more prone to render the geometrical effects of applying the equidistance principle inequitable than in the case of "opposite" States. The actual coastlines of the two countries abutting on the continental shelf to be delimited are comparatively short. This has the tendency to make the UK coast obtrude upon the continental shelf situated to seawards of the more westerly facing coast of the French Republic in that region.also common ground that. in the case of "adjacent" States it is the lateral geographical relation of the two coasts. without the use of the offshore island as a base-point. the method of delimitation adopted has been some modification or variant of the equidistance principle rather than its total rejection. A special circumstance: the prolongation of the Scilly Isles (UK) some distance further westwards than the Ushant island (France). where a particular geographical feature has influenced the course of a continental shelf boundary. Legal framework used. Here the problem also arises precisely from the distorting effect of a geographical feature in circumstances in which the line equidistant from the coasts of the two States would otherwise constitute the appropriate boundary. the equitable character of the delimitation results not from the legal designation of the situation as one of "opposite" States but from its actual geographical character as such. so it is also not the function of equity to create a situation of complete equity where nature and geography have established an inequity. The greater risk in these cases that the equidistance method may produce an inequitable delimitation thus also results not from the legal designation of the situation as one of "adjacent" States but from its actual geographical character as one involving laterally related coasts. rather than between. geologically the slight southwesterly trend of the continental shelf of the Channel extends westwards into the Atlantic region along the line of the Hurd Deep Fault Zone. then shift the lines. A further consequence is that the continental shelf extends to seawards of the coasts of the two countries for great distances. which justifies a boundary other than the strict median line. This method consists in delimiting the line equidistant between the two coasts. * Sir: the method of half effect = proceed first as if the island doesn’t exist. 6 to imply that in situations failing under paragraph 1 the virtues of the equidistance principle as a method of effecting an equitable delimitation are in any way superior to those which it possesses in situations falling under paragraph 2. a boundary giving half-effect to the island is then the line drawn midway between those two equidistance lines. Another is France and the UK aren’t the only States which abut on the Atlantic continental shelf. and that their geographical relation to each other vis-à-vis the continental shelf to be delimited is one of lateral rather than opposite coasts. In one instance. The continental shelf of the Atlantic region is not confined within the arms of a comparatively narrow channel but one extending seawards front the coasts of the two countries into the open spaces of the Atlantic Ocean. In consequence. 6. In short. Another is that the UK’s coastal frontage project further into the Atlantic than that of France. Modified equidistance method. due to the separation of the 2 coasts by a wide expanse of sea. Under Art. the area (Atlantic region) is considered as a case of opposite States. Half-effect. first. with its use as a basepoint. the boundary is to be the line which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. Legal Status of Eastern Greenland (1933) . The appropriateness of the equidistance or any other method for the purpose of effecting an equitable delimitation in any given case is always a function or reflection of the geographical and other relevant circumstances of the particular case. The appropriate method is to take account of the Scilly Isles as part of the coastline of the UK but to give them less than their full effect in applying the equidistance method. the areas of continental shelf to be delimited lie off. effect to the offshore island in delimiting the equidistance line. and. In a large proportion of delimitations. instead of full. In this case.

The provisions on the EEZ are both a grant of rights to and an imposition of obligations on coastal states relative to the exploitation. they must promote the objective of “optimum utilization” of the living resources. They must determine the allowable catch of living resources. the intention and will to act as sovereign b.“the arrest of a vessel in international waters by a State other than the State of which the vessel is flying the flag and under whose jurisdiction it falls. law making and enforcement Authority. Highly migratory species of fish and marine mammals are accorded special protection. flying the Spanish flag) on the high seas in order to put a stop to the overfishing of Greenland halibut by Spanish fishermen.dispute concerns the adoption of measures for the conservation and management of fisheries stocks with respect to vessels fishing in the NAFO Regulatory Area and their enforcement Spain’s Position . lighthouses!!! WON “Greenland” as used in the documents of this period intended to include the East Coast because at that time. "Greenland" as a geographical term was even more used in connection with the East coast than with the West coast. The EEZ is an area extending not more than 200 nautical miles beyond the baseline. g.Spain argues that the term “conservation and management measures" must be interpreted in accordance with international law. by virtue of which Canada pursued. or colonized area. as the term "Straat Davis" was often used to describe the West coast. so it must exclude any unilateral measure by a State which adversely affected the rights of other States outside that State's own area of jurisdiction. First. And take note that islands have their own EEZs. recognition in conventions/treaties. Coastal states have 2 primary obligations. and if they don’t have the capacity to harvest the allowable catch. The doctrine developed due to the desire of coastal states for better conservation and management of coastal fisheries. Canada (1996) [ Facts only] This is a dispute relating to Canada’s amendment of the Canadian Coastal Fisheries Protection Act. Both countries are claiming that the have the superior claim over this area. The coastal state has rights over the economic resources of the sea. they must grant access to other states. Two elements each of which must be shown to exist: a. Arguments: European Community’s position . Second. Indeed. This includes the duty to maintain and restore populations of harvested fisheries at levels which produce a maximum sustainable yield. Doctrine of “Sovereignty Actually Exercised”. The delimitation of overlapping EEZs between adjacent states is determined by agreement. the East Coast was yet unknown – Yes! An examination of the maps of the 17th and 18th centuries shows that the general features and configuration of the East coast of Greenland were known to the cartographers.Denmark sued Norway for occupying certain territories in Eastern Greenland.” Canada’s Position . all waters beyond the contiguous zone were considered high seas over which no state had control. management. monopoly activity/grants. seabed. some actual exercise or display of such authority Examples: Tax collection. and cannot be justified by any means. Spain v. boarded and seized a fishing vessel the Estai. Coastal states also have the right to regulate. authorize. THE EXCLUSIVE ECONOMIC ZONE Before the acceptance of the doctrine on the exclusive economic zone. they must ensure through proper conservation and management measures that the living resources of the EEZ are not subject to over-exploitation. and conduct marine scientific research in the EEZ. maritime permits authority. hunting/fishing expeditions. of Greenland. is an illegal act under both the NAFO Convention and customary international law. and preservation of the resources found within the zone. Even if no evidence of any landings on the coast have been produced. public utilities concessions. and subsoil – but this right does not affect the right of navigation and overflight of other states. the ships which hunted whales in the waters to the East of Greenland sighted the land at intervals and gave names to the prominent features which were observed. Doctrine: .

but must promptly release them upon the posting of a cash bond. fiscal. EEZ – Guinea could only apply its customs laws with regard to artificial islands. Camouco Case (2000) The Camouco is a fishing vessel flying the flag of Panama. and (b) the act did not seriously impair an essential interest of the State towards which the obligation existed. paragraph 2). paragraph 1.2) Case (1999) The Saiga is a Cypriot oil tanker that was arrested and boarded by Guinean authorities when it was sailing south of the southern limit of the exclusive economic zone of Guinea. Indeed. of the International Law Commission's Draft Articles on State Responsibility." Two questions need to be addressed in this connection. in practice. The French refuse to release the vessel and the Master until a bond is posted (exhaust local remedies) Local remedies need not be exhausted in order to file an application. M/V "SAIGA" (No. The applicants are challenging the validity of the arrest and want damages. (b) The second question is whether or not a genuine link existed between the Saiga and Saint Vincent and the Grenadines at the time of the incident. As set out in article 33.A. be regarded as "conservation and management measures": [1] those relating to the State's exclusive economic zone. In the contiguous zone. and [2] those relating to areas outside that zone. Guinea did not comply with several. In endorsing these conditions. Article 292 provides for an independent remedy and not an appeal against a decision of a national court. installations and structures (article 60. paragraph 1. No visual or auditory signals to stop could have been given to the Saiga. *Sir: mustn’t submit vessels guilty of illegal fishing to incarceration. a coastal State is entitled to apply customs laws and regulations in its territorial sea (articles 2 and 21). Hot Pursuit – defense denied (Article 111 UNCLOS) All the requirements must be cumulatively complied with.“OTHER RULES OF INTERNATIONAL LAW” phrase). the Court stated that they "must be cumulatively satisfied" and that they "reflect customary international law".In international law only 2 types of measures taken by a coastal State could. 2 CONDITIONS FOR STATE OF NECESSITY TO APPLY– NOT MET. installations and structures. Exception – State of Necessity (ART 58 . the coastal State has jurisdiction to apply customs laws and regulations in respect of artificial islands.)". The Convention does not empower a coastal State to apply its customs laws in respect of any other parts of the exclusive economic zone not mentioned above. Measures not satisfying these conditions were not conservation and management measures but unlawful acts pure and simple. Saiga’s Nationality – UNCLOS GENUINE LINK TEST. Article 91. immigration or sanitary laws and regulations within its territory or territorial sea. (b) punish infringement of the above laws and regulations committed within its territory of territorial sea. paragraph 2). Its owner is "Merce-Pesca (S. in the exclusive economic zone. a coastal State may exercise the control necessary to: (a) prevent infringement of its customs. Guinea is insisting that they had jurisdiction to arrest and invoke hot pursuit. (article 60. No limitation should be read into article 292 that would have the effect of defeating its very object and purpose. The Tribunal notes that. (a) The first is whether the absence of a genuine link between a flag State and a ship entitles another State to refuse to recognize the nationality of the ship. It was boarded by the French surveillance frigate Floréal in the exclusive economic zone of the Crozet Islands. article 292 permits the making of an application within a short period from the date of detention and it is not normally the case that local remedies could . under the Convention. a company registered in Panama. are: (a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril. of the Convention provides: "There must exist a genuine link between the State and the ship. in so far as these came within the framework of an international agreement or were directed at stateless vessels. However. and the alleged pursuit was interrupted when the patrol boats were recalled before they resumed the chase.

or if historic title or other special circumstances make it necessary to delimit the territorial seas in other ways. neither of them is entitled to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines of each of them. the initial results were corrected. . equitable principles which have a normative character as part of general international law). The basis is the value of the detained vessel and of the cargo seized. The principle of non-encroachment by one party on the natural prolongation of the other. the delimitation was done in two steps. The conduct of the parties. 8. 5. Consistency with the general direction of the land boundary. The general geographical framework or context. The incidence of natural resources (oil and natural gas) in the disputed area. The geological structure of the sea-bed and its geomorphology (or surface features) 4. Defense and security interests of the disputing states. the amount of the bond imposed by the detaining State and its form but the value of the vessel alone may not be the controlling factor in the determination of the amount of the bond or other financial security if there is no evidence to support the assessment. In the Libya v. the location of islands of one state near the other. First. Their navigational interests. h. unless they agree to do so. There is a presumption that the equitable solution is an equal division of the overlapping areas of the continental shelves of the disputing states. it safeguards the interests of the coastal State by providing for release only upon the posting of a reasonable bond or other financial security determined by a court or tribunal referred to in article 292. 3. and they must not jeopardize or hamper the reaching of a final agreement. 10. Malta and Gulf of Maine cases. 6. such as: 1. the provisional solution was examined. and the eccentric alignment of small islands lying off a peninsula). the parties shall resort to peaceful means of dispute settlement. 4. 2. 11. Equally. such as the de facto line produced by the pattern of grants of petroleum concessions in the disputed area. Where there is a geographical situation of quasi-equality between a number of states. Delimitation is to be effected by applying equitable criteria and by using practical methods capable of ensuring. or the failure of local law to provide for release on posting of a reasonable bond. The delimitation of the EEZ and continental shelf between States with opposite or adjacent coasts must be done by agreement on the basis of international law (ex. If no agreement can be reached within a reasonable period of time. If necessary. Pending this they may make provisional arrangements of a practical nature. The application of equitable principles makes reference to relevant circumstances. it is necessary to abate effects of an incidental special feature which might result in unjustified. 9. 3. Prevention any cut off of the sea ward projection of the states concerned. Next. ( to avoid the effects of a concave coast. Reasonableness of Bond Amount.Municipal authorities are allowed to attach provisional liberty with the posting of a bond provided the amount is reasonable. a provisional delimitation line was provided. DELIMITATION OF MARITIME BOUNDARIES Regarding the delimitation of the territorial sea between States with opposite or adjacent coasts. Since then. inflicting thereby avoidable loss on a ship owner or other persons affected by such detention. an equitable result. different treatment. 5. certain equitable principles have been recognized as guidelines for delimitation: 1. In the North Sea Continental Shelf Cases it was held that the equidistance method did not represent general international law. with regard to the geographical configuration of the area and other relevant circumstances. Article 292 of the Convention is designed to free a ship and its crew from prolonged detention on account of the imposition of unreasonable bonds in municipal jurisdictions. Delimitation shall be effected by agreement on the basis of international law. without prejudice to the merits of the case in the domestic forum against the vessel. General configuration of the coasts of the parties 2. its owner or its crew. The principle of equitable access to the natural resources of the disputed area. taking account of special circumstances. The disparity of coastal lengths in the relevant area. 7.

Thus. it won’t for in the delimitation of a maritime boundary. given the essentially continuous geological structure of the strata underlying the whole of the continental shelf. in general customary international law. It isn’t possible to discern any genuine. Where the same continental shelf is adjacent to the territories two adjacent States the boundary of the continental shelf shall be determined by agreement between them. every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 2. 3. The same goes for the water column. sure and stable “natural boundaries” in so fluctuating an environment such as the waters of the ocean. In this case. both conventional and customary international law give priority to the criterion that delimitation must be sought through agreement between the Parties. is in international law not opposable to those States. also possesses that character of unity and uniformity which makes it impossible to discern any natural boundary capable of serving as a basis for carrying out a delimitation. and the ICJ/arbitral tribunal. and a lateral equidistance line for coasts of adjacent States). However the applicability of this method is subject to the condition that there are no special circumstances in the case which would make that criterion inequitable (i. thus geomorphological factors are insignificant. the boundary shall be determined by application of the principle of equidistance from the nearest point of the baselines from which the breadth of the territorial sea of each State is measured. the boundary is the median line. to see whether that law includes some rule specifically requiring the Parties.In the Gulf of Maine case. bordered on the 3 sides by land. methods applicable?) Principles under Art. and on the fourth by the Atlantic Ocean. just like the sea-bed. Geological factors are insignificant. The applicable principles and rules of international law. Canada & the US asked the Court to delimit both the continental shelf and the exclusive fishing zone in the Gulf of Maine area. In the absence of agreement. at least prima facie. the ICJ stated that there are no rules. This method is inspired by and derives from this equitable criterion: that the equitable solution. the starting point was chosen by the Parties (point A). which is shaped like a rectangle. the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. And any agreement or other equivalent solution should involve the application of equitable criteria . Instead customary international law merely contains a general requirement of the use of equitable criteria and practical methods capable of implementing them. This articles states: 1. and unless another boundary line is justified by special circumstances. Determine the starting point of the line. using only a single boundary. The Gulf of Maine area is a broad oceanic indentation. 6 of the Continental Shelf Convention provides for a single technique for continental shelf delimitation (a median for maritime areas between opposite coasts. as the continental shelf of the area is just an undifferentiated part of the continental shelf of the American eastern seaboard. Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (1994) In this case. In the absence of agreement. There is unity and uniformity in the whole sea-bed.e. Some factors. It would be futile to seek any element which could be a stable natural boundary. regardless of the views of the other/s concerned. is an equal division of the areas of overlap of the continental shelves of the two States. 1958 Geneva Convention on the Continental Shelf). in conformity with equitable . 6. While the Court may use another starting point. Fundamental norm in delimitation: the boundary be “determined according to the applicable law. the great mass of water in the delimitation area. specifically prescribing the application of any particular equitable criteria or the use of particular practical methods in delimitation.those derived from equity which are not in themselves principles and rules of international law. 2. and unless another boundary line is justified by special circumstances. Art. to apply certain criteria or specific practical methods to the delimitation (ex. Any delimitation of the continental shelf effected unilaterally by one State. Any delimitation must be effected by agreement between the States concerned either by the conclusion of a direct agreement or by some alternative method which must be based on consent. States have a duty to negotiate with a view to reaching an agreement and to do so in good faith with a genuine intention to achieve a positive result. It is special international law that must be looked into. 1. unreasonable division). (What are the rules. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other.

Adjacent v. an equitable result. or vice-versa. precise reformulation of the fundamental norm. the equal division of the areas of overlap of the maritime and submarine zones appertaining to the respective coasts of neighboring States. with regard to the geographic configuration of the area and other relevant circumstances. Art. following negotiations conducted in good faith and with the genuine intention of achieving a positive result. of any cut-off of the seaward projection of the coast or of part of the coast of either of the States concerned. and the assessment made in one situation may be entirely reversed in another. such agreement cannot be achieved. . It is doubtful whether a treaty obligation which is in terms confined to the delimitation of the continental shelf can be extended to a field which is evidently greater and fundamentally different. albeit subject to its effects being subsequently corrected or it being even discarded in favor of another. 6 is undisputed. Canada relied on the equidistance method. Equitable criteria. if those effects turned out to be clearly unsatisfactory. If the goal is only a delimitation of the continental shelf. delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring. The essential fact to remember is that the criteria are not rules of law and therefore mandatory in the different situations. 6 contemplate 2 distinct hypothetical situations. in cases where there are no special circumstances. in order to achieve an equitable result. having regard to all relevant circumstances. It might become apparent that adjustments were necessary for this purpose. Nor is there any method of which must be preferred. appearing to be most appropriate to the concrete situation. perpendicular to the general of the coast). Regarding the method to be used. then the mandatory application of Art. In appreciating the appropriateness of the equidistance method as a means of achieving an equitable solution. There must be willingness to adopt a combination of different methods whenever that seems to be called for by differences in the circumstances that may be relevant in the different phases of the operation and with reference to different segments of the line. The US proposed the method of the perpendicular (a vertical line. and this is unacceptable. a method with whose application every delimitation operation could begin. the goal of this proceeding is to draw a single delimitation line for both the continental shelf and the superjacent fishery zone. Continental Shelf Convention inapplicable. or even recourse to a different method. and that what international law requires is that recourse be had in each case to the criterion. median line for opposite coasts). Opposite. prescribed by general international law for all maritime delimitations between neighbour states: (1) No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. (2) In either case. Such delimitation must be sought and effected by means of an agreement. the prevention. Where. The greater or lesser appropriateness of one method or another can only be assessed with reference to the actual situations in which they are used. To do so would make the maritime water mass over the shelf a mere accessory of the latter. delimitation should be effected by recourse to a third party possessing the necessary competence. and in certain circumstances. or that the method doesn’t use the same technique. but "equitable". There has been no systematic definition of the equitable criteria for use in international maritime delimitation. However. There is no single method which intrinsically brings greater justice or is of greater practical usefulness." The coasts of two States may be adjacent at certain places and opposite at others (as in this case).principles. as far as possible. The distinction is only due to the different geographical situations referred to (lateral equidistance line for adjacent coasts. Thus the Court decided this independently of the proposals. Examples of criteria used: (classic formula) that the land dominates the sea. criteria. or even "reasonable".” A more complete. the seaward extension of a State's coast shouldn’t encroach on areas that are too close to the coast of another State. difficulties might arise of a practical nature in particular since every effort should be made to prevent the partial relationship of adjacency from ultimately predominating over the partial relationship of oppositeness. regard must be had to the difference between a 'lateral' boundary between adjacent States and a 'median' boundary between 'opposite' States. however. None of the potential methods for delimitation has intrinsic merits which would make it preferable to another in the abstract. but this doesn’t mean that the basic criterion (equal division) behind these provisions are different. whenever possible. or the balance of different criteria. Proposed methods by the Parties. the appropriate consequences may be drawn from any inequalities in the extent of the coasts of two States into the same area of delimitation. On this latter hypothesis.

The Court will apply criteria derived from geography. and the presence of geographical features (islands. Seal Island. It would then be proper to shift the median line drawn in such a way as to reflect this ratio along the line Cape Cod-Chebogue Point. Remember. It will begin where this line intersects.38 to 1. over its entire length. the choice of method is essentially dependent on geography. The practical method to be applied must be a geometrical one based on respect for the geographical situation of the coasts between which the delimitation is to be effected. It is some two and-ahalf miles long. the delimitation line isn’t a unidirectional line. Thus in the first sector. Stage two. groups of small islands). Third Segment. 4. a component state of the US. the boundary is a lateral delimitation line. Accordingly. These perpendiculars form. The overall length of the Canadian coastline is approximately 206 nautical miles. Since it is only a question of adjusting the proportion by reference to which the corrected median line is to be located. which has (primarily) a physical aspect and (secondarily) a political aspect. so that the ratio to be applied for determining the location of the corrected median line will be approximately 1. and at the same time suitable for producing a result satisfying the criterion for the division of disputed areas. only geometrical methods will serve. The total length of the US coastline in the Gulf is approximately 284 nautical miles. This is the segment which lies outside and over against the Gulf of Maine. This is the longest portion. This precludes the use of any criteria which are inappropriate for the delimitation of either element.38 to 1. such as length of coastlines. The back of the Gulf is entirely occupied by the continuous coast of Maine. Thus the equidistance method isn’t used. with the corrected median line as so established. Such a line can only be one approximately parallel to the approximately parallel lines of the two opposite coasts. The Delimitation a. the bisector drawn from point A and constituting the first segment. the island’s effect is a small transverse displacement of that line. However it would be excessive to treat the coastline of Nova Scotia as transferred south-westwards by the whole of the distance between Seal Island and that coast. the determination of the path of this segment must depend on that of the .32 to 1 in place of 1. but the method of drawing perpendiculars. Thus. b. Applicable practical methods. The central segment of the delimitation line will correspond. The ratio between the coastal fronts of the Parties on the Gulf of Maine as is thus 1. at point A. The presence of some islands and isles must also be considered. The practical methods can only be methods appropriate for use against a background of geography. Second Segment. In principle. Stage one. Moreover. Some corrections must be made to certain effects of its application that might be unreasonable. and it is appropriate to give the island half effect. It is the bisector of this second angle which should be adopted for the course of the first segment. Thus it is impossible to disregard the difference in length between the respective coastlines of the two States which border on the delimitation area. i. and the terminal point of the international boundary with Canada is situated much farther to the northeast in the Grand Manan Channel. This involves the determination of the median line. the application of any method of geometrical origin can in practice only result in the drawing of a median delimitation line. Take note that at the northeastern sector the coasts are laterally adjacent. In the second. This ratio should be reflected in the location of the second segment of the delimitation line. not an angular displacement. with limited practical impact. the line is a median line. one may justifiably draw from point A two lines respectively perpendicular to the two basic coastal lines. First Segment. within the Gulf.Applicable equitable criteria in this case: geography + auxiliary criteria. mainly the geography of coasts. The appropriate method should be to apply the ratio selected to a line drawn across the Gulf where the coasts of Nova Scotia and Massachusetts are nearest to each other. Given the configuration of the Gulf of Maine coastline. In this case (given the rectangular shape of the area and the quasi-parallelism between the lines used in the delimitation. A correction is thus needed. at a corner of the rectangle which geometrically represents the shape of the Gulf proper. Remember that this involves a delimitation of 2 distinct elements by means of a single line. c. the methods used must be just as suitable for the delimitation of the sea-bed and its subsoil as for the delimitation of the superjacent waters and their fishery resources. so that the concurrent use of auxiliary criteria may appear indispensable. and end on reaching the closing line of the Gulf. while at the closing sector the coasts are opposite. on one side an acute angle of about 82' and on the other a reflex angle of about 278'.e. and the fact that the coasts are opposite). the equitableness of correcting the result when a coastline is cut off.

the ship is engaged in piracy 2. In this case. there is no point of reference. The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement. committed for private ends by the crew or the passengers of a private ship or a private aircraft. Verification of the equitable character of the result. i. letter C to the meeting-point between the second and third segments on the closing line of the Gulf. . In conclusion. and are thus ineligible for consideration as criteria to be applied in the delimitation process itself. freedom of fishing 4. The portion of the line now to be determined will inevitably be situated in the open ocean. taking point A as a fixed point and assigning letter B to the meeting-point between the first two segments as above defined. By legal fiction. activities pursued like fishing and conservation of resources. whether coastal or land-locked. against another ship or aircraft. a ship is a floating part of the flag state. the ship is engaged in slave trade 3. Piracy refers to the following acts: 1. Freedom of fishing also includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas.two previous segments. the ship is really of the same nationality as the warship. or against a ship. From the geographical point of view. THE HIGH SEAS These are all parts of the sea that are not included in the territorial sea or in the internal waters of a State. Take note that the contiguous zone is part of the high seas. the Court concluded that there are absolutely no conditions of an exceptional kind which might justify any correction of the delimitation line that was drawn. there are no others that should be taken into account. any act of voluntary participation in the operation of a known pirate ship or aircraft. Freedom of overflight belongs to both civilian and military aircraft. may be relevant in assessing the equitable character of a delimitation first established on the basis of criteria borrowed from physical and political geography (ex. 2. or any act of depredation. or against persons or property on board such ship or aircraft. freedom of navigation 2. It is obvious that the only kind of practical method which can be considered for this purpose is a geometrical method the drawing of a perpendicular to the closing line of the Gulf. 3. & socioeconomic aspects) . persons or property in a place outside the jurisdiction of any State. has the right to sail ships flying its flag on the high seas. applying equitable criteria and appropriate methods accordingly. This is necessary only for the third segment. is an understandable step. any act of inciting or of intentionally facilitating any of the above acts. 5. freedom to construct artificial islands and structures 6. though flying a foreign flag or refusing to show its flag. outside the actual shores of the Gulf that can serve as a basis for carrying out the final operation required. and directed: on the high seas. A warship which encounters on the high seas a foreign ship can board the latter only if there is a reasonable ground for suspecting that: 1. Some enquiry whether. the ship is engaged in unauthorized broadcasting and the flag state of the warship has jurisdiction 4. The delimitation was effected in compliance with the governing principles and rules of law. These other circumstances may be summed up by the data provided by human and economic geography. the ship is without nationality 5. which is the real subject of the dispute due to the potential resources of the subsoil and the fisheries. B. the delimitation line fixed between the maritime jurisdictions of Canada and the US will be the line successively connecting points A. freedom to lay submarine cables and pipelines 5. freedom of overflight 3. Every State. and letter D to the point where the first segment reaches. It might well appear that other circumstances ought properly to be considered in assessing the equitable character of the result produced by this portion of the delimitation line. C and D. The high seas are subject to 6 freedoms: 1. thus producing an equitable overall result. to seaward. Historical presence in the area. aircraft. in addition to the factors provided by the geography of the Gulf itself. any illegal acts of violence or detention. freedom of scientific research. the last place on its path where the claims of the two Parties overlap.

Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own state or of a third state. even as a measure of investigation. Hot pursuit may be carried out only by warships or military aircraft. at the time when the foreign ship within the territorial sea or contiguous zone receives the order to stop. it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern blue fin tuna stock. it may be pursued only for violations of the rights of the coastal state in the contiguous zone. Although the Tribunal cannot conclusively assess the scientific evidence presented by the parties. the ship giving the order should likewise be within the territorial sea or contiguous zone. SOUTHERN BLUE FIN TUNA. the Tribunal may prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment. Mutatis mutandis. k. CONSERVATION AND MANAGEMENT RESOURCES OF THE HIGH SEAS OF LIVING All states have the right for their nationals to engage in fishing on the high seas. In line with this. as the case may be. PROVISIONAL MEASURES AIMS TO PRESERVE RIGHTS AND HARM TO ENVIRONMENT. or any other ship or aircraft properly marked for that purpose. In accordance with art 290 of the Convention. of the Convention. the territorial waters. no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. Provisional Remedies granted – catch limit set (Japan made a clear commitment that the 1999 experimental fishing programme will end by 31 August anyway). This must commence when the foreign vessel is within the internal waters. Southern Bluefin Tuna Case (1999) Australia and New Zealand alleged that Japan had failed to comply with its obligation to cooperate in the conservation of the southern blue fin tuna (SBT) stock by undertaking unilateral experimental fishing for southern bluefin tuna in breach of its obligations under Arts 64 and 116 to 119 of UNCLOS in relation to the conservation and management of the SBT. all states have the duty to take. States Parties to the Convention have the duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued is within the limits of the territorial sea or. such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas (e. or to cooperate with other states in taking. j. the right of hot pursuit shall also apply to violations of applicable laws and regulations of the coastal state in the EEZ or the continental shelf including the safety zones of the shelf. Highly Migratory Species must be protected! Under art 64. involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship. within the contiguous zone. the rights and duties of coastal states. shall be ordered by any authorities other than those of the flag State. If the foreign ship is in the contiguous zone. subject to their treaty obligations. They are also asking for provisional remedies in the form of an order commanding Japan to desist from such unilateral experimental fishing. to pronounce the withdrawal of such certificates. read together with arts 116 to 119. RIGHT OF LAND-LOCKED STATES TO AND FROM THE SEA . after due legal process. No arrest or detention of the ship. In disciplinary matters. the State which has issued a master's certificate or a certificate of competence or license shall alone be competent. MEASURES SHOULD BE TAKEN TO PRESERVE RIGHTS AND AVERT MORE DETERIORATION. and the UNCLOS provisions. even if the holder is not a national of the State which issued them. A HIGHLY MIGRATORY SPECIES OF FISH! The list of highly migratory species contained in Annex I to the Convention includes southern bluefin tuna: thunnus maccoyii. It may continue to the high seas if the pursuit has not been interrupted. or the contiguous zone of the pursuing state. In the event of a collision or any other incident of navigation concerning a ship on the high seas. the archipelagic waters. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship. or above the continental shelf.Hot pursuit is allowed where there is good reason to believe that the ship has violated laws or regulations of a coastal state.g. It is not necessary that. determining the allowable catch). EEZ.

The Enterprise is the organ of the Authority which shall carry out activities in the Area directly as well as the transporting. Also. No ship may change its flag during its voyage except in case of transfer of ownership or on the basis of change of registry. * Sir: marine pollution cases are different from quasi-delicts.A land-locked state is one which has no sea-coast. and their subsoil. vessels and others are covered quite extensively under UNCLOS. for the latter requires proof of negligence in order to recover damages. This is a departure from the SS Lotus case. through whose territory traffic in transit passes). However. or other charges. or an arbitral tribunal constituted under the Convention. NAVIGATION Every State has the right to sail ships flying its flag on the high seas. All rights in the resources of the Area are vested in mankind as a whole. MARINE POLLUTION Marine pollution prevention and control arising from land-based sources. with or without a seacoast. it is considered as having no nationality and may not claim any of the nationalities represented by these flags with respect to any other State. The minerals recovered from the Area. INTERNAL TERRITORIAL ARCHIPELAGO CONTIGUOUS EEZ CONTINENTAL HIGH SEAS . States are bound to prevent and control marine pollution from any source and are liable for damage caused by violation of their international obligations to combat such pollution. These are areas of the seabed and the ocean floor. however. and marketing of minerals recovered from the Area. there is no need to prove fault for there is an immediate duty to pay for the clean-up. to render assistance to any person at sea in danger of being lost. without danger to the crew or passengers. in cases of gross negligence. and shall have its principal place of business at the seat of the Authority. Only the flag state may exercise criminal jurisdiction over the master or any person in the service of the ship. taxes. m. This arose as a response to the Exxon incident. The alternatives are the International Tribunal for the Law of the Sea. sea-bed-activities subject to national jurisdiction. may only be alienated in accordance with the relevant provisions of UNCLOS. These are the common heritage of mankind and may not be appropriated by any state or person. ARCHAEOLOGICAL AND HISTORICAL OBJECTS States have the duty to protect objects of an archaeological and historical nature found at sea. or to rescue persons in distress. Take note that the US doesn’t recognize a ceiling. on whose behalf the Authority (the International Sea-Bed Authority) shall act. Traffic in transit shall not be subject to any customs duties. These resources are not subject to alienation. PEACEFUL USE OF THE OCEANS In exercising their rights and performing their duties under UNCLOS. the ICJ. states shall refrain from any threat or use of force against the territorial integrity or political independence of any State. p. INTERNATIONAL SEABED AREA n. UNCLOS requires submission of the dispute for compulsory settlement in one of the tribunals clothed with jurisdiction. q. shipping and oil companies are required to pay only up to a certain amount (based on an oil fund). If a bilateral settlement fails. Under the TOVALOP and CRISTOL. except those levied for specific services rendered in connection with such traffic. the companies will lose the benefit of limited liability and will become liable for the amount needed for the clean-up. If a ship sails under the flag of 2 states. o. It is the State’s right to decide the conditions by which it will accord the right to fly its flag. l. activities in the Area. These states have the right of access to and from the sea and the freedom of transit through the territory of a transit state (a state. Also the flag state shall have the duty to require the ship’s master. which lie beyond any national jurisdiction. or in any other manner inconsistent with the principles of international law embodied in the UN Charter. processing. SETTLEMENT OF DISPUTES Peaceful settlement of disputes is compulsory. situation between a land-locked state and the sea.

Criminal – consequences extend to coastal state. A grp. SHELF Seabed and subsoil of submarine areas that extend beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin. and bays SEAS An adjacent belt of sea. rivers. the seabed. Includes waters of lakes. immigration. subsoil. in the territorial sea or in the internal waters of a State. or sanitary laws & regulations These are limited. conserving. ZONE A zone contiguous to the territorial sea that may not extend beyond 24 nautical miles from the baselines An area beyond and adjacent to the territorial sea. Jurisdiction is limited. Under the UNCLOS. of islands. Coastal state has certain sovereign rights over the continental shelf. ports. fiscal. which does not exceed 12 nautical miles from the baselines. the airspace above these waters. including parts of islands. in the waters. This sovereignty is exercised subject to the right of archipelagic sea lanes passage. Coastal state does not exercise sovereignty but protective jurisdiction. or which historically have been regarded as such Archipelagic state’s sovereignty extends to the archipelagic waters. no penal proceedings may be instated . All parts of the sea that are not included in the exclusive economic zone. seabed. Jurisidction Coastal state has absolute civil & criminal jurisdiction Coastal state has sovereignty (over airspace. though it doesn’t form part of its territory. interconnecting waters & other natural features which are so closely interrelated that such form an intrinsic geographical. and the resources. and managing the natural resources. limited by the right of innocent passage Flag state exercises civil. or to a distance of 200 miles from the baselines whichever is greater. and subsoil. For collisions. or in the archipelagic waters of an archipelagic State. seabed. living or nonliving. exploiting. criminal jurisdiction with EXCEPTIONS 1. These sovereign rights don’t affect the legal status of superjacent waters and airspace over the waters. roadsteads are part of the territorial sea. Sovereign rights only for the purpose of exploring. which extends 200 nautical miles from the baseline Sovereignty .Definition WATERS Waters on the landward side of the baseline of the territorial sea. economic & political entity. subsoil) . Not under jurisdiction. Coastal state has jurisdiction only over customs. sovereignty of any state Ships under the flag of 1 state shall be subject to the exclusive jurisdiction of such state.

ships owned . & use artificial islands & installations To lay submarine cables & pipelines Freedoms of navigation & overflight Sovereign rights to explore. in the waters. The contiguous zone if claimed will be superimposed on the EEZ. operate & use artificial islands & installations Rights of the Coastal State To adopt laws. preservation of marine environment To suspend the right of passage wrt specified areas if essential for the protection of the state’s security and without discrimination among foreign ships To designate sea lanes & air routes Prescribe traffic separation schemes for safe passage of ships via narrow channels in such lanes Substitute other sea lanes. require foreign ships to use sea lanes.navigation . the area will be part of the high seas. drug traffic 2. traffic separation schemes Rights of protection (includes right to temporarily suspend innocent passage if essential for protection of its security) except before the judicial or administrati ve authorities of either the flag state or of the state of which persons in the service of the ship is a national FOR ALL STATES: Freedoms of the high seas . exploit natural resources (mineral & other nonliving resources of the seabed & subsoil. pipelines . exploit. & manage natural resources. installations . Civil – those incurred by ship itself. the others are mandatory).scientific research To visit warships Hot pursuit Immunity of warships. seabed. To explore. connected with the voyage with regard to artificial islands and installations.overflight . either immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil) To construct. traffic separation Coastal states must make a claim to its contiguous zone for their pertinent rights to exist (this zone is only optional. and protection.lay submarine cables. or subsoil. request for assistance. Exercise necessary control to prevent violations wrt customs.construct artificial islands. conserve. regulations relating to innocent passage When necessary wrt navigational safety. fiscal. good order.fishing . living or nonliving. If there is no claim. & living organisms at the harvestable stage. operate.disturbs the peace. To construct. marine scientific research.

pipelines In laying cables/pipelines. social matters over ships flying its flag To render assistance To prevent. e. of which it has knowledge. to have due regard to those already in position or operated by a state & used only on gov’t noncommercial service Duties of Coastal States Not to hamper the innocent passage of foreign ships To give appropriate publicity to any danger to navigation. maintenance of cables.g. immigration Punish infringement of the laws related to the 4 areas Establish safety zones around artificial islands. within its territorial sea Respect rights of third states under existing agreements Recognize traditional fishing rights. navigation Not to impede the laying. installations To lay submarine cables & pipelines Exclusive right to authorize & regulate drilling on the shelf To exploit the subsoil via tunneling Not to infringe/interfere with rights & freedoms of other States.schemes sanitary. punish the transport of . other legitimate activities of adjacent neighboring states Respect existing submarine cables laid by other states & passing through its waters without making a windfall Allow the maintenance and replacement of such cables Conserve & manage the resources Promote optimum utilization FOR ALL STATES: To fix conditions for grant of nationality to ships (right to fly its flag) Exercise jurisdiction & control in administrati ve. technical.

pipelines slaves To repress piracy To suppress illicit traffic in narcotic drugs. regulations of the coastal state Foreign ships must respect the safety zones established by the coastal State In laying cables/pipelines.Rights of Third States NO right of innocent passage EXCEPT when the establishment of a straight baseline encloses as internal waters those which had not previously been considered as such Right of innocent passage No charge may be levied on foreign vessels by reason only of their passage Right of innocent passage Right of archipelagic sea lanes passage Right to innocent passage Right to transit passage To lay submarine cables & pipelines Freedoms of navigation & overflight To lay submarine cables and pipelines To repair existing cables. traffic separation schemes Foreign nuclearpowered ships. inherently Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 miles to either side of the lanes during passage Respect applicable sea lanes and traffic separation schemes To abide by the rules and regulations set by the coastal state Due regard to the rights & duties of the coastal state Comply with the laws. those carrying nuclear. psychotropi c substances To suppress unauthorize d broadcastin g Punish the breaking of submarine cables To cooperate in conservatio n. ZONE: The duty to make annual payments or contributions in kind after the first 5 years of production except in case of a developing state. regulations relating to innocent passage When required. foreign ships must use designated sea lanes. manageme nt of living resources Duties of Third States Submarines. underwater Comply with coastal state’s rules. to have due regard to those already in position IF BEYOND 200MI. which is a net importer of mineral resources from its continental shelf .

would imply a diminution of its 3 Thanks to Tin and Cathe for this part. Exclusive jurisdiction. genocide 3. An Introduction to International Law (for easier reading. Kinds: 1. wherein jurisdiction is conferred in any forum that obtains physical custody of the perpetuator of certain offenses considered particularly heinous and harmful to humanity (Eichmenn v. Territorial jurisdiction 2. what nationality of victim or offender. Passive Personal. crimes v. Ex. crimes & crimes against humanity. Protective. must carry documents & observe special precautionary measures 3. torture. . int’l order. jurisdiction to prescribe norms of conduct (legislative jurisdiction) 2. wherein jurisdiction is based on whether jurisdiction is based on the place where the offense is committed (Lotus case). It is susceptible of no limitation not imposed by itself. Higgins & Brownlie articles are in the digest) > Jurisdiction – authority to affect legal interests. piracy. war crimes. > Effective nationality link doctrine (Nationality Principle) – determines which of 2 states of which a person is a national will be recognized as having the right to give diplomatic protection to holder of dual nationality (Nottebohm). *Sir: Jurisdiction 1. during innocent passage. Any restriction upon it. wherein jurisdiction is based on the nationality of the offender (Nottebohm case). The jurisdiction of the nation within its territory is necessarily exclusive and absolute. jurisdiction to enforce the norms prescribed (executive jurisdiction) 3. Universal. wherein jurisdiction is based on whether the national interest is injured. Universal jurisdiction regardless of where. Protective. Atty-General of Israel). jurisdiction to adjudicate (juridical jurisdiction) > 5 traditional bases of jurisdiction over extraterritorial crimes under international law: Territorial.dangerous/noxi ous substances. deriving validity from an external source. under the Trading with the Enemy Act. wherein jurisdiction is based on the nationality of the victim. JURISDICTION & IMMUNITIES3 Bernas. alternative bases for exercise of jurisdiction: nationality – offender (RP Civil Code) Brownell v. Act so offensive. Sunlife Action to compel payment on an endowment policy payable to a Japanese.

must be traced up to the consent of the nation itself. without lawful authority and done animo furandi. Confiscation is not allowed under the Hague Regulations. which is robbery or forcible depredation on the high seas. All exceptions to the full and complete power of a nation within its own territories. People v. and an investment of that sovereignty to the same extent in that power in which would impose such restriction. 8. is exempt from the civil & criminal jurisdiction of the place. a settled principle of international law gives said army jurisdiction over their person & the offenses charged. are not neutral to crimes. The consent of a Senate to the operation of a foreign law within its territory does not need to be express. "for those limits. the occupying power can effect a liquidation that is in the form of a mere sequestration. it is enough that said consent be implied from its conduct or from that of its authorized officers. This consent may be either express or implied. Piracy is a crime not against any particular state but against all mankind. and 477. who belong to the military personnel of that army. There was no confiscation here but a mere sequestration. Griess Petition against US prosecution for misappropriation. though neutral to war. & petitioners. The application of said law in the RP is based concurrently on said act (Philippine Property Act of 1946) and on the tacit consent thereto and the conduct of the RP Government itself in receiving the benefits of its provisions. Pirates are in law hostes humani generis. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. restating cases Tubb & Tedrow v. confiscation. The China Banking Corporation Petition to compel cancellation of mortgage with sequestered bank. as well as by the enactment of RAs 7. The jurisdiction of piracy unlike all other crimes has no territorial limits. The ratification of or concurrence of the RP to the agreement for the extension of the Philippine Property Act of 1946 is clearly implied from the acts of the President of the RP and of the Secretary of Foreign Affairs. They can flow from no other legitimate source. CFI has jurisdiction over the crime of piracy. who has 2 Filipina wives—if he hides here. IL rule: a foreign army allowed to march through a friendly country or to be stationed in it. As it is against all so may it be punished by all. RPC – extraterritorial clauses now. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state. In the effort of occupying powers to control enemy property within their jurisdiction in order to avoid their use in aid of the enemy and to . Universal jurisdiction over piracy. and in the spirit and intention of universal hostility. Lol-Lo And Saraw Appeal against conviction for piracy. Ratification can be given tacitly as well as expressly. by permission of its government or sovereign. US laws have no extraterritorial effect. Haw Pia v. Lol-lo? YES! The lack of domestic law does not make the act any more legal. Under international law. Tacit ratification takes place when a State begins the execution of a treaty without expressly ratifying it. Limit on sovereignty." *Sir: Even without domestic executing law—so why not for enforced disappearances? Extra-judicial killings? Against Osama.sovereignty to the extent of the restriction. are charged with violations of Articles of War for offenses committed in areas under the control of the US Army. & permits the allied general or commander-in-chief to retain that exclusive control & discipline which the government of his army may require. the agreement for the stationing of the US Army or a part of its forces in the RP implies a waiver of all jurisdiction over their troops during the time covered by such agreement. Since such part of the US Army is stationed in the RP with permission of our government. Sequestration v. can we use People v.

or to breach international law in doing so.) were done in the US.increase their own resources. etc. and hence his detention. were arbitrary because they were not “pursuant to law. be an asylum seeker. express or implied. and so it falls under the headquarters doctrine exception to the foreign activities exception. to seize evidence. Because a human rights norm recognizing an individual's right to be free from transborder abductions has not reached a status of international accord sufficient to render it “obligatory” or “universal. on the part of the US or its agents to refrain from transborder kidnapping.” Consequently. they had to resort to such measures of prevention—which do not amount to a straight confiscation.) from a country notorious for violation of torture.” it cannot qualify as an actionable norm under the ATCA. the US-Mexico Extradition Treaty did not extend to transborder abduction and there was no separate treaty with such a prohibition. Alvarez's arrest. nor can it be said that there is international acceptance of such a norm. and [3] Trading with the Enemy Acts of the US and other civilized countries. there was valid tender of payment to BOT which discharged Haw Pia’s obligation. Nor can we say that there is a “universal” consensus in the sense that we use that term to describe well-entrenched customs of international law. [2] express authorization granted under the Army and Navy Manual of Military Government and Civil Affairs of US and of other civilized countries. That Congress may have intended the reach of a criminal statute to extend beyond our borders does not mean that Congress also intended to give federal law enforcement officers unlimited authority to violate the territorial sovereignty of any foreign nation to enforce those laws. Thus. On the Alien Tort Claims Act: US does not recognize a prohibition against transborder kidnapping. Kidnapping not an actionable norm under ACTA. placing under custody. and sequestrating the enemy private property. and thus the intentional tort exclusion does not apply. Sosa (District Court) Alvarez sues US & paid kidnapper after he was acquitted on charges for which he was brought to the US. *Sir: Valid extradition under int’l law – treaty and offense must satisfy rule of double criminality (both at time of happening or commission and at the time of request. Alvarez-Machain v. Our review of the international authorities and literature reveals no specific binding obligation. Aspiration has not yet ripened into obligation. scheming. Although we recognize that the kidnapping and murder of DEA agents abroad necessitates the exercise of extraterritorial criminal jurisdiction. or to make arrests for violations of Federal law. At the time of Alvarez's abduction. his claim falls squarely within this law enforcement proviso. And although the waiver of sovereign immunity under the FTCA excludes intentional torts such as false arrest. (incluing the death penalty) treaty Political crimes are defined in Extradition Treaty as being non-extraditable. extraterritorial application does not automatically give rise to extraterritorial enforcement authority. But.” Because the primary tortious act was the initiation and planning of Alvarez's abduction by the DEA agents. [2007 Bar] You are not required to extradite (for torture. we cannot conclude that Congress has given the DEA unlimited enforcement powers abroad. On the Federal Torts Claims Act: Although the injuries were suffered in Mexico. absent a clear directive. . Measures of prevention are not repugnant to Hague Regulations. this exclusion is followed by an important proviso: It does not apply if the intentional tort is committed by an “investigative or law enforcement officer. the offense must be defined in both territories). the proximate cause of such injuries (planning. Sosa v. Machain (Supreme Court) Claimant seeks damages for illegal arrest & wrongful detention. person accused for such may apply for refugee status. This is based on [1] writings of well-known writers on International Law. blocking. etc. etc. as freezing. Alvarez established a tort committed in violation of the law of nations.” The DEA agents who orchestrated Alvarez's arrest are law enforcement officers as defined by the FTCA because they are “empowered by law to execute searches.

“Actionable violations of IL must be of a norm that is specific. Illinois). On manner of arrest (kidnapping from Argentina): (a) In the absence of an extradition agreement between the State to which a "fugitive offender" has been brought for trial and the country of "asylum" . ACTA: amended by Bush. . . it suffices to look to the historical antecedents. it is no less true that in almost all of such States criminal jurisdiction has been extended . . and metes out punishment to the offender for his breach of the prohibition imposed by the law of nations. . an enemy of all mankind”) In re Estate of Marcos Human Rights Litigation. originally from Ker v. . The Alien Torts Statute is a jurisdictional statute creating no new causes of action. ACTA: for Hilao v. & piracy. crimes against humanity. . kidnapping is not included in the list of actionable crimes. that subject to this restriction every State may exercise a wide discretion as to the application of its laws and the jurisdiction of its courts in respect of acts committed outside the State. violates no norm of customary IL so well defined as to support the creation of a federal remedy. but the offender was not extradited . . Attorney-General Of Israel Appeal of conviction for crimes against humanity during the Holocaust. which persuade this Court that federal courts should not recognize claims under federal common law for violations of any IL norm with less definite content & acceptance among civilized nations than the 18th-century paradigms familiar when the ATS was enacted. enforced disappearances. no cause of action provided in the law. . now. . . . and that only in so far as it is possible to point to a specific rule prohibiting the exercise of this discretion . *Sir: SC: show injury from an official act. That view was based on the following two grounds: (1) It is precisely the conception of State sovereignty which demands the preclusion of any presumption that there is a restriction on its independence. it is the universal character of the crimes in question which vests in every State the power to try those who participated in the preparation of such crimes. no cause of action given. . available only for torture (before. manner of arrest does not affect jurisdiction. on the understanding that the common law would provide a cause of action for the modest number of IL violations thought to carry personal liability at the time: offenses against ambassadors. and even if there existed such an agreement . in accordance therewith. On jurisdiction: The principle of territorial sovereignty merely requires that the State exercise its power to punish within its own borders. ACTA does not apply—jurisdiction-giving only. . . so as to embrace offences committed outside its territory. followed by the transfer of custody to lawful authorities & a prompt arraignment. (“[F]or purposes of civil liability. if served by summons in US. & obligatory. the torturer has become–like the pirate & slave trader before him–hostis humani generis. and to punish them therefor. In deriving a standard for assessing Alvarez's claim. . the Court will not investigate the circumstances in which he was detained and brought to the area of jurisdiction (Sir: the “Ma-and-Pa” doctrine. is a State prevented from exercising it. & (2) Even if it is true that the principle of the territorial character of criminal law is firmly established in various States. torture) Is kidnapping an int’l crime? Eichmann v. FTCA’s foreign country exception bars all claims based on any injury suffered in a foreign country. violation of safe conducts. It follows that the State which prosecutes and punishes a person for that offence acts solely as the organ and agent of the international community. universal. regardless of where the tortious act or omission occurred. . Marcos—damages for political murders. The reasonable inference from history & practice is that the ATS was intended to have practical effect the moment it became law. not outside them.” A single illegal detention of less than a day. slavery.ACTA only jurisdictional. requirement: no break in the causation of events (commission must be in the US territory). However. On Sosa: ACTA is available for victims of int’l crimes. included violation of law of nations—war crimes. Universal jurisdiction over crimes against humanity.

Therefore. This treaty (of extradition).. including the claim for the return of the offender to its territory. in bringing the appellant to trial. *Sir: origin of the “Ma-and-Pa” doctrine.. Nor can it be doubted that Peru could. have surrendered Ker to an agent of Illinois. Ker v. Bernas: Immunity from Jurisdiction General rule: the jurisdiction of a state within its territory is complete and absolute. and such waiver may be explicit or by acquiescence. it functioned as an organ of international law and acted to enforce the provisions thereof through its own law. Consequently. & Immunity of the representative of states or diplomatic and consular immunities. therefore. by virtue of the principle of universal jurisdiction. of its own accord. And to this extent. so that. the treaty does regulate or impose a restriction upon the right of the government of the country of the asylum to protect the criminal from removal. is intended to limit this right in the case of one who is proved to be a criminal fleeing from justice. and this surrender would’ve been valid within the dominions of Peru. (c) the aggrieved State may condone the violation of its sovereignty and waive its claims. This is based on the principle of equality of states: par in parem non habet imperium. Irregularity in manner of getting custody does not affect jurisdiction. This jurisdiction was automatically vested in the State of Israel on its establishment in 1948 as a sovereign State. The treaty. The right of the Peruvian government to voluntarily give a party. For mere irregularities in manner in which he was brought into the custody of the law. and when in that trial and proceedings he isn’t deprived of rights to which he is lawfully entitled. but the sovereign right of the State aggrieved. it is immaterial that the crimes in question were committed when the State of Israel did not exist. since in such a case the right violated is not that of the offender.(b) This also applies if the offender's contention be that the abduction was carried out by the agents of the State prosecuting him. US to face larceny & embezzlement charges. State immunity – the principle that the state may not be sued without its consent found in the Philippine Constitution is both municipal law and also international law applicable to foreign states. has a trial according to the forms and modes prescribed for such trials. Appellant is a "fugitive from justice" from the point of view of the law of nations. In this case. he isn’t entitled to say that he shouldn’t be tried for the crime with which he is charged in a regular indictment. the government of the country of the asylum shall deliver him up to the country where the crime was committed. which covers both a head of state and the state itself. so far as it regulates the right of asylum. and outside its territory The moment it is admitted that the State of Israel possesses criminal jurisdiction both according to local law and according to the law of nations. in Ker’s condition. Categories of exceptions: Sovereign immunity. an asylum in that country is quite a different thing from his right to demand and insist upon security in such an asylum. . it must also be conceded that the Court is not bound to investigate the manner and legality of the [arrest and]…detention. or any other treaty. It isn’t contended that Peru couldn’t have ordered Ker out of the country on his arrival. on proper demand and proceedings had therein. the treaty wasn’t called into operation or relied upon. since the crimes that were attributed to him are of an international character and have been condemned publicly by the civilised world. The immunity of the sovereign head is seen as also communicated to the sovereign state. without any demand from the US. Illinois Ker was kidnapped from Peru & brought to Cook County. every country has the right to try him. or at any period of his residence there. ‘Due process of law’ is complied with when the party is regularly indicted by the proper grand jury in the state court. doesn’t provide that a party fleeing from the US to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled.

*Sir: Seeming difference between sovereign immunity and immunity of an IO: none really. ambassadors or other officials. 2. that is. Universal Jurisdiction over torture is justified by its jus cogens nature. Pinochet can be extradited WRT charges after Sept. 5(1) states) do not seek to extradite. if during on-going armed conflicts. The relevant date is the conduct date—meaning. i. that the conduct should be a crime in the UK at the time it was committed. if there is no conflict? -RTC of Makati: no complete immunity Tests: 1. the state where the alleged torturer is found must prosecute or. which are personal (they benefit the person). when we agree to limit territorial jurisdiction via the Bases Agreement (among others). On the part of the receiving state there lie certain obligations to protect the representative and his property and office. Torture is now an international crime on its own. so he does not enjoy immunity WRT these acts committed after 09-29-88. but torture as defined under the Torture convention cannot be a public function.Diplomatic and consular immunities . so. A single act of official torture is "torture". Pinochet as a former head of state enjoys immunity ratione materiae.e. Important points from the torture convention: 1) Torture under the Convention can only be committed by "a public official or other person acting in an official capacity". employees are immune for both functional and full immunity. 2) Superior orders provide no defence. but these words include a head of state. Double criminality doctrine. 4) There is no express provision dealing with state immunity of heads of state. Tendency: narrow construction of immunity: covers only sovereign acts Limits on Sovereignty: -US-RP Bases Agreement – transitory provision: complete immunity to limited immunity (limited to sovereign acts as opposed to proprietary acts) -but when sovereign? Proprietary? What about when building bases? Or the ZTE contract (state enterprise—act of Chinese state? China has no concept of private entities)? When buying helicopters. Principle of Double Criminality requires that the conduct complained of must constitute a crime under the law of both Spain and of the UK. 1988 (date when Torture became a crime in the UK). and not at the time the extradition was sought (request date). Not all the crimes as charged are extradition crimes. Personality of contracting parties – trumped by purpose test (armaments sold by private entities to state to be used for defense). armaments (for defense)—still sovereign acts. Ex Parte Pinochet Pinochet extradited by Spain while he was in London seeking medical treatment. 29. sovereign & functional immunity. for crimes committed. Nature of act – whether sovereign or proprietary.much of the law governing diplomatic relations is customary law. apparently. during his term as head of state of Chile (he became head of state after a successful coup). when they are within the territory of another state. private vessels commissioned by the state. one of those rules which have a particular status. Difficult cases: transportation—civilian and sovereign character. But the purpose of the immunities given is functional. primarily in Chile. extradite to another country (universal jurisdiction). 3) If the states with the most obvious jurisdiction (the Art. Official representatives of a state are given immunities and privileges. IL prohibiting torture has the character of jus cogens or a peremptory norm. . to enable them to perform their functions properly.

39 (1). 39(2). 1988 and the UK with effect from Dec. .immunities & privileges the Ambassador state (the forum state) does not enjoyed ceases the moment he leaves the adjudicate on the conduct of a foreign country after his post. limited immunity. integrity of the activities of the foreign state during the period when he was ambassador. with respect to acts performed by such a person in the exercise of his functions as a member of the mission. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador's time. such privileges and immunities shall normally cease at the moment when he leaves the country. or on expiry of a reasonable period in which to do so. He shall continue to enjoy immunity with respect to acts performed in the exercise of his functions (Art. 1988. RATIONE PERSONAE RATIONE MATERIAE4 of the Ambassador Under the Vienna Convention Immunity of Head of state: .immunity extends to both criminal & civil liability. they are bound under treaty by its provisions WON such provisions would apply in the absence of treaty obligation. was still in post. . it is necessary to provide that immunity is afforded to his official acts during his tenure in post. Such personal immunity of the head of state persists to the present day: the head of state is entitled to the same immunity as the state itself. 30. Chile ratified the Convention with effect from Oct. 31.immunity from arrest Art. but shall subsist until that time. ratione materiae). even in case of armed conflict. It provides that: • the Ambassador shall enjoy his immunity and privileges from the moment he takes up post.5) Since Chile. 4 immunity by reason of the subject-matter." 5 . But. 19615 covers the immunity of the Ambassador. even in case of armed conflict. 8. Spain and the UK are all parties to the Convention. However. -Basic Principle Of IL that one sovereign . • After his post is over. immunity shall continue to subsist.immunity from criminal and civil jurisdiction Art.the ambassador's privileges shall be enjoyed from the moment he takes up post (2) “When the functions of a person enjoying privileges and immunities have come to an end.foreign state is entitled to procedural -This continuing partial immunity is different immunity from the processes of the from that enjoyed ratione personae while he forum state. to preserve the state.State immunity probably grew from the historical immunity of the person of the monarch. 29. he shall still enjoy these privileges and immunity until he leaves the country or on expiry of a reasonable period in which to do so. but shall subsist until that time. Immunity of Ambassadors The Vienna Convention on Diplomatic Relations. attaches to the official acts of every acting or former State organ Art.

Note that RP filed a brief stating that its foreign relations with the US would not be adversely affected if claims against Marcos were litigated in the US. Considering that the US has not waived or consented to the suit. he immunity as the state itself. International crime – duty to prosecute. relation to his official acts done while he was an rendering him immune from all actions or official. Pinochet case – but acts were committed while he was the sovereign of Chile & sovereigns have immunity from suits Extradition in UK – criminal House of Lords – reviewed the nature of his acts. -Immunity is ratione personae. all that engage in torture deny it. public or private. NlRC Petition assailing Labor Arbiter’s jurisdiction over termination of an employee of an agency of the US. Normative value of law: even sovereign acts are not immune to make it unwise to commit the violation Jusmag Philippines v.diplomatic representative of the foreign a person. Sovereign immunity: contract in discharge of governmental function. Estate Of Marcos Does the US have jurisdiction over a case involving foreign sovereign for acts done in the RP. like any to the person of the head of state or other official of the state. It requires a claim by an alien. attaching -Under Art.head of state is entitled to the same -Since he no longer represents his state. the Lords ruled that immunity extends only to sovereign acts. A suit against such as agency is a suit against the US Government. a tort and a violation of international law. the ambassador. merits no particular privileges or immunities as .. with no nexus to the US (after Court found that Marcos was not immune. Hilao v. US Alien Tort Statute provides a forum for claims by aliens for torture that has occurred elsewhere. acting in behalf of the international order. acts of torture are not acts of state. enjoys immunity in ambassador and is a complete immunity. This limited immunity is to be prosecutions whether or not they relate contrasted with the former immunity ratione to matters done for the benefit of the personae which gave complete immunity to all state. albeit it was not impleaded in the complaint. sovereign acts can be prosecuted). *Sir: -Cory waived immunity – important since immunity could still be claimed. There is no established rule of IL that requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime. The prohibition against official torture carries with it the force of jus cogens norm which enjoys the highest status in international law. activities. immunity pertains only to sovereign acts. 39(2). *Sir: without abandoning the customary norms on immunities. Victims of Japan’s comfort women policy—ACTA claim for enslavement during wartime dismissed since Japan didn’t waive immunity (if it did. acts of torture violate customary int’l law)? No sovereign immunity against charges of torture. state in the forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. the . and no state claims a sovereign right to torture its own citizens. not including commission of international crimes—Rome Statute: immunity is not a defense against charges of international crimes. All states believe that torture is wrong. any state that engages in official torture violates jus cogens. Under international law.

complaint against JUSMAG cannot not prosper. WHO v. "immunity" is commonly understood as an exemption of the state and its organs from the judicial jurisdiction of another state. the sovereign state cannot be deemed to have waived its immunity from suit. 31 of the Vienna Convention on Diplomatic Relations which admits of exceptions of the general rule of a diplomatic agent’s immunity from criminal jurisdiction of the receiving state: (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. Immunity of State from suit is a universally recognized principle. Rarang Libel case against US army personnel in charge of the publication. it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. Unauthorized acts of government officials or officers are not acts of the State. the case falls within the exception to the doctrine of state immunity. Public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is showing of bad faith. is not a suit against the State within the rule of immunity of the State from suit. Aquino Smuggling case involving a WHO official. An act or omission that is ultra vires cannot be part of official duty. US v. Immunity from suit The doctrine cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. *Sir: jurisprudence in this regard is in flux (excess of authority = not w/in ambit of immunity) Wylie v. This is anchored on the principle of the sovereign equality of states under which one state cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium (an equal has no power over an equal). for example. Nature of immunity: jurisdiction not application if sovereign act. the suit must be regarded as against the state itself although it has not been formally impleaded. In international law. *Sir: SC: act in official capacity because of the nature of the publication (attached to the organization) or because of function/capacity in which you acted. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same. and an action against the officials or officers by one whose rights have been invaded or violated by such acts. for the protection of his rights. Reyes Discrimination case against store manager in an exchange in JUSMAG. A public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith. but is a tortious act. While the doctrine appears to prohibit only suits against the state without its consent. . such as the appropriation of the amount needed to pay the damages awarded against them. or beyond the scope of his authority or jurisdiction. Bradford was sued in her private or personal capacity for acts allegedly done beyond the scope and even beyond her place of official functions. under Art. No functional immunity WRT acts outside official duties. SC: no immunity because the act constituting quasi-delict (is this consistent with doctrine?) coverage is not applicable to negligent or bad faith act. No functional immunity WRT tortuous acts. private and proprietary acts (jure gestionis) The contract was entered into in the discharge of its governmental functions. The doctrine of Immunity is restricted to sovereign or governmental activities (jure imperil) and cannot be extended to commercial.

Judge Aquino should have quashed the search warrant application. Case dismissed for failure to exhaust administrative remedies but SC said. It may at once be stated that even if the Calzo enjoys diplomatic immunity. Inc. However. US v. indisputably a function of the government of the highest order. The traditional rule of State immunity exempts a State from being sued in the courts of another State without its consent or waiver. Minucher v. It does not apply where the contract relates to the exercise of its sovereign functions. There is a procedure to invoke immunity from suit before local courts: submission to court of a certificate from the DFA characterizing the organization. Lyons. Court bound by DFA certification as to official capacity. meant to safeguard the jurisdictional immunity of diplomatic officials in the Philippines. In this case the projects are an integral part of the naval base which is devoted to the defense of both the US and the RP. Ruiz Action to compel US to award of harbour works contract. it has been necessary to distinguish them— between sovereign and governmental acts (jure imperii) and private. there can be no question that private respondent was sued in his personal capacity for acts committed outside his official functions duties. CA gravely abused its discretion in dismissing the civil case on the basis of an erroneous assumption that simply-because of the [self-serving] Diplomatic Note. and every officer concerned in executing it" to obtain or enforce such writ or process. to which local courts should defer. they are not utilized for nor dedicated to commercial or business purposes. but rather for lack of a cause of action because even if he committed the imputed act and could have been . This rule is a necessary consequence of the principles of independence and equality of States. 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.Whether such claim arises from criminal acts or from tort. *Sir: Case is authority for: WHO is not subject to local jurisdiction. through its agency at Subic Bay. State immunity lost when state enters into proprietary contract. the sovereign cannot be sued in its own courts. its commercial activities or economic affairs. it is evident that it can bring an action before our courts for any contractual liability that that political entity may assume under the contract. a dismissal of the case cannot be ordered on the ground of lack of jurisdiction over his person. The result is that State immunity now extends only to acts jure imperii. a US Navy Reservation. commercial and proprietary acts (jure gestionis). entered into a contract with appellant for stevedoring & miscellaneous labor services within the Subic Bay area.Invoking functional immunity: certification from DFA. Because the activities of states have multiplied. the private respondent is clothed with diplomatic immunity. The correct test for the application of state immunity is not the conclusion of a contract by a state but the legal nature of the act. v. But. generally. State immunity not lost when state enters into sovereign contracts. the restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign. USA Collection case under a stevedoring contract at the US Naval Base. without its consent and permission. RA 75. considering that the US Government. thereby divesting the trial court of jurisdiction over his person. whether as party or as attorney. No functional immunity WRT personal acts. CA Iranian Labor Attache claims damages after he was “framed” of heroin trafficking by a US drug enforcement agent. declares as null and void writs or processes sued out or prosecuted whereby inter alia the person of an ambassador or public minister is arrested or imprisoned or his goods or chattels are seized or attached and makes it a penal offense for "every person by whom the same is obtained or prosecuted. or in any other.

after failure to complete payment. Holy See v. . no bases agreement. no legal basis for immunity. Calleja). Third Secretaries are also Vice Consuls. DEA agent definitely not a diplomatic agent (under the Vienna convention). under US authority who certifies that it is service-related). accredited (determines diplomat status). specialized regime as to custody WRT unofficial acts. especially when it is not undertaken for gain or profit. VFA is problematic—limits exercise of sovereignty over offenses by visiting forces in RP (offenses in unofficial acts. Despite its size and object. and the demands of its mission in the world. it is the Holy See that is the international person. If the foreign state is not engaged regularly in a business or trade. or an incident thereof. our diplomats have multiple designations. The property was donated to the Holy See for it to establish its diplomatic premises but was forced to sell after failure to evict squatters. If the act is in pursuit of a sovereign activity. Rosario Action for reconveyance & damages by first buyer against seller Holy See. Where the plea of immunity is recognized and affirmed by the executive branch. [twice asked in last 5 Bar exams] In RP. RP gets custody upon request. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. RP has accorded the Holy See the status of a foreign sovereign. There shouldn’t be immunity. his immunity would bar any suit against him in connection therewith and would prevent recovery of damages arising therefrom. In Shauf v. A public official may be liable in his personal private capacity for whatever damage he may haw mused by his act done with malice and in bad faith.otherwise made liable therefor. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. No basis to give immunity to a DEA agent. DFA certification confirms sovereign immunity. Remedy: a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels *Sir: involves a sovereign mini-state SEAFDEC v. then it is an act jure imperii. it has an independent government of its own. The privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the DFA. CA: “Authorities state that the doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. Aquino). the particular act or transaction must then be tested by its nature. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City. one can conclude that in the Pope's own view. with the Pope.” *Sir: MFR ruling is wrong. The Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country's foreign relations (WHO v. Acosta Illegal termination case. The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (ICMC v. or beyond the scope of his authority or jurisdiction. Test: whether the foreign state is engaged in the activity in the regular course of business. who is also head of the Roman Catholic Church. in conformity with its traditions. US can request custody pending litigation but after trial until decision. as the Holy See or Head of State.

It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied. UNOCAL Burmese citizens sue for enslavement under the ATCA. such objection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states. *Sir: calling someone a “bitch” is not related to a sovereign function. People “Bitch” oral defamation case against an ADB economist. For purposes of establishing standing to seek injunctive relief to halt American corporation's involvement in gas pipeline project in Myanmar because of alleged continuing violations of human rights. that it is immune from the legal writs & processes issued by the tribunals of the country where it is found. Burmese citizens living in refugee camps in Thailand demonstrated existence of credible threat that they would be subjected to human rights violations allegedly committed in furtherance of pipeline project by showing that they are in danger of being forcibly repatriated to Myanmar. The MfR focused on the diplomatic immunity of officials and staff of ADB from legal and juridical processes in the Philippines and the constitutional and political basis of that immunity. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may interfere in their operations or even influence or control its policies and decisions of the organization. besides. The exercise of jurisdiction by the DOLE would defeat the very purpose of immunity. nonprofit & UN registered. either as result of Burmese attacks on refugee camps or Thai refoulement actions. Important: non-political purpose + autonomy. Functional immunity for IO. DFA certification disregarded. If plaintiff establishes standing to seek damages. even remotely. The UN is an international organization dedicated to the propagation of world peace. Successful ACTA claim.Functional immunity for international agency. from political pressure or control by the host country to the prejudice of member States of the organization. which is to shield the affairs of international organizations. Liang (Huefeng) v. alleging that private security guards forced them to dislocate & then make dams. Calleja Petition for Certification Election of rank and file members of the labor union in ICMC. SEAFDEC is an international agency enjoying diplomatic immunity. and to ensure the unhampered performance of their functions. in accordance with international practice. The certificate (Liang was entitled to immunity) required in WHO v. i. court need not undertake . “International Organization” is generally used to describe an organization set up by agreement between two or more states.. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. Under contemporary international law. They are organized mainly as a means for conducting general international business in which the member states have an interest. Aquino was disregarded. SC disregarded the “office of protocol” from the DFA stating that Liang is covered by immunity from legal process under Section 45 of the Agreement between the ADB and th RP regarding the Headquarters of the ADB in the RP.e. a Vietnam War refugee processing center. duties and powers. enjoying functional independence and freedom from control of the state in whose territory its office is located. such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights. The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character and respective purposes. One of the basic immunities of an international organization is immunity from local jurisdiction. John Doe v. ICMC v.

and operation of pipeline was within discretion of parties who were not parties to lawsuit. it concluded that his functions are such that. Head of Government. and Minister for Foreign Affairs. treaty. throughout the duration of his office. Immunities accorded to ministers of foreign affairs in customary IL are accorded to ensure the effective performance of their functions on behalf of their states and not for their personal benefit. Belguim violated the immunities of the then Minister of Foreign Affairs of the Congo. State Practice also does not show the existence of exceptions to the ministers of foreign affairs’ immunity under customary IL. WON it significantly interfered with Yerodia’s diplomatic activity. & whether the person sought is extraditable. The mere issue and the circulation of the a/w. where bulk of corporation's initial capital investment had already been made. both civil and criminal. ICJ is unable to conclude that there exist exceptions under customary IL in regard to national courts upon examination of the rules concerning immunity or criminal responsibility of persons having official capacity contained in the legal instruments creating international criminal tribunals. Extradition.Diplomatic and consular agents. The proceedings are intended merely to assist the requesting state in bringing the accused—or the fugitive who has illegally escaped—back to its territory. Congo v. Claim in Federal Court under ACTA. There can be no distinction from acts which were performed in an “official” capacity and in a “private” capacity. After the ICJ considered the nature of the functions exercised by a minister of foreign affairs. Functional immunity violated. Belgium International arrest warrant against Congo Foreign Minister protested as violation of customary IL WRT diplomat’s absolute immunity. The decisions of the Nuremberg and Tokyo international Military Tribunals and of the International Criminal Tribunal for the Former Yugoslavia do not deal with the question of immunities incumbent ministers of foreign affairs before national courts where they are accused of war crimes or crimes against humanity. constituted a violation of an obligation of Belgium towards Congo. complies with the Extradition Treaty and Law. Federal Court said: no control over Myanmar. By entering into an extradition treaty. Issue: why principal company was held liable? Minority shares. certain high-ranking officials in a state. infringed the immunity from criminal jurisdiction and the inviolability enjoyed by him under IL. Issuance of injunction to halt American corporation's involvement in gas pipeline project in Myanmar because of Burmese government's alleged continuing violations of human rights was not likely to halt alleged human rights violations. enjoys full immunity from criminal jurisdiction and inviolability. supported by its annexes & the evidence that may be adduced during the hearing of the petition. *Sir: John Doe v. more particularly. Court: enforced slavery prohibition. enjoy immunities from jurisdiction in other states. in that it failed to respect the immunity of that Minister and. UNOCAL was invested in as a separate company (joint venture). he when abroad. so that the criminal process may proceed therein. held UNOCAL liable. USA v. even by non-state actors. indigenous people forced to leave & then work. Special Circuit Court: reversed. management was with the ruling junta. This immunity and inviolability protect the individual concerned from any act of authority of another state which would hinder him or her in the performance of his or her duties. Relation of acts of junta & personality of the mother company (passive investor). UNOCAL: pipeline in Myanmar. state responsibility. such as the Head of State. Purganan & Crespo Jimenez contests arrest warrant issued against him ICOW an extradition request by the US.separate standing inquiry for equitable relief.The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition. RP is deemed to have reposed its trust in the reliability or soundness of the legal & judicial system . Minister has since left the government. Myanmar: controlling shares in local subsidiary.

INTERNATIONAL RESPONSIBILITY . Alvarez-Machain. > Principles on Extradition: 1. But a state may surrender a fugitive if surrendering him is not contrary to the state’s constitution. Bernas: > 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 a crime. No state is obliged to extradite unless there is a treaty 2. if at all. an extradition case is not one in which the constitutional rights of the accused are necessarily available. Extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. 4. the reasonable prima facie presumption is that the person would escape again if given the opportunity. It is more akin. Differences in legal system can be an obstacle to interpretation of what the crime is 3. to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. which may cover specific crimes only or all offenses considered criminal by both states. Religious and political offenses are not extraditable. as well as in the ability & the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. although the latter have never been precisely defined. Consequently. It is a process that is governed by treaty. Most treaties exclude religious and political offenses.of its treaty partner. Potential extraditees do not have the right too a hearing for the issuance of a warrant of arrest nor the right to bail granted by the RTC. The legal right to demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty. Lantion. Having once escaped the jurisdiction of the requesting state. USA v. how due process requirements work in an extraditin case: Secretary of Justice v. > procedure is normally through diplomatic channels (how extradition rules ca be bypassed: US v. Purgana & Crespo).

Art. b. 8. Art. individual or group (Arts. fundamental human rights protection. attributable to the State under IL. 16: State aiding or assisting another State in committing an internationally wrongful act (IWA). caused by the State’s IWA. Art. Art. in such a way as to allow resumption of performance. offer assurances of non-repetition. Art. no other reasonable means. Injury includes any damage. 17: State directs & controls another State in committing an IWA. 36: responsible State obliged to compensate for damage caused. Art. Attribution of Conduct: Organ of state (Arts. Art. 29: legal consequences of IWA do not affect continued duty to perform the obligation breached. 31. 4. responsible State obliged to make reparation for injury caused. 35: responsible State obliged to make restitution (re-establish situation before IWA) to the extent that restitution is not materially impossible & burden is not out of proportion to benefit of restitution rather than compensation. whether material or moral. Defenses against attribution: wrongfulness of the act precluded if done: Art. 2: internationally wrongful act of a State when conduct consists of an action or omission: a. archives. . cease the act. 11). & reparation. 26: no preclusion if wrongfulness is ICOW an obligation arising under a preemptory norm of general IL. 22: as a countermeasure under these Draft Articles. expression of regret. 42: injured State invoking another’s responsibility. 37: responsible State obliged to give satisfaction if no restitution or compensation possible. limited to non-performance at time of taking the countermeasures. Taking countermeasures won’t excuse from dispute settlement procedure & respecting inviolability of diplomatic/consular agents. Art. & obligation owed to int’l community as a whole. premises. 48: non-injured State invoking responsibility – obligation breached is owed to group of states. ILC Draft Articles on State Responsibility Art. if no restitution possible.act of the State is not in conformity with what is required by the obligation. 24: done to save a life in distress. demand fulfillment of obligation & notify responsible State of decision to take countermeasures & offer to negotiate. including injured one. 6. Art. Art. Art. group of State. 10. Art. documents. Art. formal apology.ii. Art. 18: State coerces another State in committing an IWA. Art. Art. 40: rules apply WRT serious breach under an obligation arising under a preemptory norm of general IL. & is established for protection of collective interest. 25: in necessity. not in a way so as to humiliate the responsible State. rights affected. Art. if breach is owed to: a. the State individually b. 49: injured State taking countermeasures against responsible state to induce compliance with obligation. 7). for the injured State or of beneficiaries. if continuing. take countermeasures. not out of proportion to injury. 50: countermeasures do not affect: obligation to refrain from threat or use of force. 21: in lawful measure of self-defense under the UN Charter. but not if (or suspend. & b. 32: internal law can’t justify failure to comply with obligations Art. If necessary to protect rights. if already taken) IWA has ceased & dispute is pending in appropriate tribunal/court (restraint or suspension not required if responsible State fails to implement settlement procedures in good faith). 30: obligations in case of IWA: a. constitutes a breach of an int’l obligation of the State. humanitarian obligations prohibiting reprisals & obligations under preemptory norms of general IL. including that State. consisting of acknowledgment of breach. 23: due to force majeure. Art. Art. or int’l community as a whole& the breach: specially affects the State so radically changes the position of other states WRT further performance of the obligation Art. 12: breach . Art. 9. Art. Claim under first part: for cessation & promise of non-repetition. 52: before countermeasures. Art. covering any financially assessable damage including loss of profit established. 5. 51: commensurate countermeasures: gravity of IWA. 53: terminate countermeasures upon compliance with obligation.

Now. 2007 Bar: Mayor’s EO banning contraceptives in private clinics so poor people lost access to family planning technology. State practice: representative of decisions held by courts all over 2. attributable to state (attribution) > Source of the principle of SR: ILC Draft Articles on State Responsibility. to guarantee non-repetition 3. 30-to cease & desist. 2): a. > State responsibility in a nutshell: 1. UNOCAL used security guards against indigenous peoples to drive them away from their ancestral domains and then to force them to build dams.acts ratified by the State itself > Illustrations: Pinoys employed as security guards in US Bases in Iraq. > When do you incur SR? Requisites (Art. To determine SR.empowered Art. After 80 years of drafting. new obligations arise -this article is the contentious article: what constitutes “breach” 2. Int’l Tribunal: between State and person in its territory.successful insurrectional movement Art.de facto Art.10. based on circumstances. Is this a violation of int’l law? Could Mayor engage SR in behalf of the state? Yes (even ultra vires acts).(most problematic) Art. The only way to finish the project was to leave the identification of SR to substantive law. Art. there is no conclusion on SR because there is no Convention adopting it. State organs . Is it being an ultra vires act a defense? No. 2-if there’s a breach. claim was WRT . The contras in Nicaragua (US funded but Court said that low level support is insufficient to engage SR). 8. Privacy (number of kids)—expanded due process rights. 2. beyond the nationality principle. Art. Art. 9.*Sir: what if a RP Army private shot a US Army personnel while drunk? Could a foot soldier bring about state responsibility assuming attack against the state? The act will engage SR because he is an agent of the state so he acts as part of an organ of the state (army). new obligation arises: responsibility to cease and desist. Is this constitutional? No. Gives rise to breach of obligation WRT treatment of aliens and their property. 5. 4: always (least problematic). > Minimum standard for treatment of people in your territory: not fixed. look at substantive law. 31-reparation to status quo ante > Who can engage state responsibility: 1. Are they acting as agents? In Burma. “Organs” under IL includes all branches & instrumentalities of the gov’t as defined under constitutional or internal law. US) Art. Draft Articles: 1. opinion juris: not under any compulsion to codify norms under IL but only norms they feel are law. no distinction as to nationality. Duty: due diligence in protection of aliens and their property in your territory. US provided funds.Art. How binding? See North Sea Continental Shelf cases: ILC Articles (Continental Shelf Convention)—mandate of ILC is to codify int’l law.11.acting upon instruction or control (Nicaragua v. > Does the Draft Articles say when there is SR? Sir: no. extinguish all consequences—Chorzow Factory case) . breach of int’l obligation b. assurance of non-repetition & reparation (restoration to status quo ante or compensation if no restoration possible. private individuals. Prove both elements: breach + attribution 2. composed of experts (subsidiary source of IL) nominated by states but acts independently & representative of all legal regimes of the world. it only says when there is breach of a treaty or a norm. reflects or is evidence of customary law > Evidence of Customary Norms ILC codified the norms: 1.

Nothing was attempted by Albania to prevent the disaster. under IHL. in issuing regulations in respect of the passage. if they engage in firefights. The laying of the minefield could not have been accomplished without the knowledge of Albania (location. Rainbow Warrior (New Zealand v. to ensure respect for international law. the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty. As regards the notion of self-help. > Corporations and shareholders: Barcelona Traction case: Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain. In order to bring a claim in respect of the breach of such an obligation. The passage was innocent both in its principle. But. defense: for security. Albania claims that its sovereignty was violated when UK later swept the Strait for more mines.slavery. But such obligations are not absolute. Failure to protect aliens in territory. then aliens would also be subject to such harsh laws. but not in prohibiting such passage or in subjecting it to the requirement of special authorization. since it was designed to affirm a right which had been unjustly denied. which were not unreasonable in view of the firing from the Albanian battery on May 15th. When a state admits into its territory foreign investments or foreign nationals it is bound to extend to them the protection of the law and to assume obligations concerning the treatment afforded them. had a compromise agreement but preliminary ruling was that US was liable for agency. Certainly. . length of coast as to strait. aliens should be protected by certain minimum standards of humane protection. Bad: it the state is tyrannical and its municipal laws are harsh and violative of human rights even of its own citizens. In RP. Good: same benefits. & these grave omissions involve her international responsibility. private security guards used in cell sites against NPAs. Whenever a shareholder’s interests are harmed by an act done to the company. and in its methods of execution. the Rainbow Warrior. guard posts as strategic places). it is to the latter that he has to look to institute appropriate action. 22 of the danger to which they were exposed. Corfu Channel Case UK claims against Albania’s mines planted in the Corfu Channel. The Court can only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law. “Minimum international standard” – however harsh the municipal laws might be against a state’s own citizens. Albania would have been justified in view of these exceptional circumstances. are the security guards combatants (for the state) in non-int’l armed conflict? Bernas: > Standard for the protection of aliens: Doctrine of “national interest” or “equality of treatment” – aliens are treated in the same manner as nationals of the state where they reside. France) French agents destroyed a Greenpeace. New Zealand prosecuted 2 captured French agents of the Directorate General of External Security. while in harbour in New Zealand. the Court recognises the Albanian Government’s complete failure to carry out its duties after the explosions and the dilatory nature of its diplomatic Notes as extenuating circumstances for the action of the United Kingdom. the Court is also unable to accept it: between independent States the respect for territorial sovereignty is an essential foundation for international relations. Int’l vessel. Widely accepted standard but abstract. a State must first establish its right to do so. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on Oct. of which it is the organ.

*Sir: Art. This gave rise to Iran’s international responsibility for the acts. In international law. Great Britan) Union Bridge claims damages arising out of the removal of the material from Port Elizabeth to the Imperial Military Railways. the Melo Commission said that there was command responsibility liability only as far as Palparan went. Harris Case book (1994 & 2004 editions) *Sir: IL breach: gross negligence in duty of protecting aliens > Standard (not a definitive formula): nationality. 11? 1994 edition Union Bridge Company Claim (US v. The first statements made by the Iranian gov’t were not sufficient to make the militants the agents of the state. 11 state acknowledges and adopts the conduct 1. is there ratification under Art. failure to protect the premises of the embassy/diplomatic mission Chorzow Factory Case Poland’s alleged illegal expropriation liability to German owners. the storekeeper of the Cape Gov’t Railways at Port Elizabeth.Acts of organs of state. and minimum standard of treatment > Substantive norm: Neer Claim > In the RP. & restitution or compensation). the showing of support and encouragement of the detention of the hostages made the militants’ acts that of the Iranian State. Failure to protect alien’s property rights. without Union Bridge’s consent. by Harrison. The UN Secretary-General's ruling required France to pay US $7 million to New Zealand and to undertake not to take certain defined measures injurious to New Zealand trade with the European Communities. So if GMA praises Palparan in her SONA for a job well don. an agent of the British gov’t. Ratification of private acts. Bloemfontein. & promised reparation. . any breach of an engagement involves an obligation to make reparation (note: wipe out as much of the consequences & return to status quo ante. But as to the second statement. Dispute over France’s demand for release & New Zealand’s claim for compensation. US diplomatic staff and consular staff in Iran (US v Iran) US Embassy & staff in Iran were seized by protestors. The ruling also provided that Major Mafart and Captain Prieur were to be released into French custody but were to spend the next 3 years on an isolated French military base in the Pacific. no evidence to link mob’s attack to Iran 2.  State Responsibility. without Iranian authorities attempting to prevent such but with later statements of support by the Ayatollah. The Court said that the initial take-over of the embassy was not attributable to the state. A communiqué from the Prime Minister of France confirmed that agents acted under its instructions. Attribution would be present only when it is established that the acts were carried out in response to specific instructions from a competent organ of the State. Poland has a positive duty to respect and afford protection to the property rights of aliens living in its territory. and its subsequent sale.

4 Bolivar Railway Company Claim (Great Britain v. Applicable ILC Draft articles: Arts. Duty: to exercise due diligence to protect the person and property of aliens. defense: soldiers on shore leave. This liability is not affected by the fact that this was done under a mistake. and he did so under instructions which fix liability on the British gov’t. Nations do not die when there is a change of government. 4 & 7 Zafiro Claim (Great Britain v. However. Claims in respect of contractual obligations incurred by both the old and new governments were allowed. and the situation of the neutral property. Harrison purported to act upon instructions given to him. but claims incurred by an unsuccessful revolution against Castro were not allowed. Mexico) A mob killed 3 US nationals & Mexican police’s attempt to quell the mob. The nation is responsible for the obligations of a successful revolution from its beginning. were circumstances calling for diligence on the part of those in charge of the Chinese crew to see to it that they were under control when they went ashore in a body. it is not intended by the rule to say that no wrongful act of an official acting in the discharge of duties entrusted to him can impose responsibility on a gov’t under IL because such wrongful act must be considered to be “outside the scope of his competency. after his assumption to power. it .Act of state organ. Mexico is liable for the acts of the soldiers whether 1) outside the scope of their authority. 4 Youmans Claim (US v. The soldiers’ participation in the murder cannot be considered as acts in their private capacity when it is clear that at the time of the commission of these acts. The consignment of the material to Blomfontein was a wrongful interference with neutral property. with responsibility. or that the British had no intention to appropriate the material. because. through the gov’t. or 2) done in a private capacity. as railway storekeeper. though unascertainable part of the damage is not chargeable to the Chinese crew of the Zafiro. the neb were on duty under the immediate supervision and in the presence of a commanding officer. and in doing so. it might be possible to hold him responsible for the claims incurred by the 2 nd revolution as growing out of the revolution he had led. and the part chargeable to unknown wrongdoers cannot be identified. These are but expressions of a change of national will. an not a railway bridge. Applicable ILC Draft article: Art. If the personal responsibility of Castro were the question for decision. Venezuela) Claims were brought by Bolivar arising out of the revolution in Venezuela that brought Castro to power & against Castro himself. and it was within Harrison’s duty. such is not the ground on which successful revolutions are charged. then no wrongful act committed by an official could ever be considered as acts for which the gov’t could be held liable. Successful insurrectionists. he committed 2 mistakes in as much as it 1) was neutral property. failure to protect aliens in territory. Act of state organ. US) Claim WRT acts of a Chinese crew of the Zafiro. The nature of the crew. and 2) was intended for a road. Responsibility comes because it is the same nation. in looting houses in Cavite during the Spanish-US War of 1898. a private ship commissioned by the US military. Act of state organ. under the Mayor’s instructions. the absence of civil or military control ashore. But interest is not allowed because a considerable. There was no effective control of the Chinese crew at the time when the real damage took place. Clearly. Applicable ILC Draft article: Art.” If this were the meaning intended by the rule. The nation is responsible for the debts contracted by its titular government until the obligation is discharged. to forward material by rail. US is liable for the whole damage as the Chinese crew of Zafiro are shown to have participated to a substantial extent. led to the open firing upon the house & more killings.

ILC Draft article: Art.represented ab initio a changing national will. and that the treatment of an alien. even though the State does not purport to have expropriated them and the legal title to the property formally remains with the original owner. control and benefits of their property by means of various actions authorizing. Mexico) US claims damages for Mexico’s failure to exercise due diligence in prosecuting the murderer of an American. primarily aimed at physical property. Iran Claimants contend that their property interests in the housing Project have been unlawfully taken by the Government of Iran which has deprived them of the effective use. approving and ratifying acts and conditions that prevented Starrett from completing the Project. in order to constitute an international delinquency. 10. Whether the insufficiency proceeds from deficient execution of an intelligent law or from the fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial. The property interest taken by the Government of Iran must be deemed to comprise the physical property as well as the right to manage the Project and to complete the construction in accordance with the Basic Project Agreement and related agreements. *Sir: Art. thus requiring compensation under international law. or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. it is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated. Starrett Housing Corp. The Court noted that the Government of Iran did not issue any law or decree according to which the Zomorod Project or Shah Goli expressly was nationalized or expropriated. However. Standard of treatment of aliens in territory. should amount to an outrage. Expropriation Even Without Nationalization Law. crystallizing in the finally successful result—success demonstrated that from the beginning it was registering the national will. 2004 edition Neer Claim (US v. In this case it appears from the very nature of the measures taken by the Government of Iran in January 1980 that these measures were aimed at the taking of Shah Goli. Claimants rely on precedents in international law in which cases measures of expropriation or taking. have been deemed to comprise also rights of a contractual nature closely related to the physical property. App. . v. to bad faith. It has been proved that at least by the end of January 1980 the Government of Iran had interfered with the Claimants' property rights in the Project to an extent that rendered these rights so useless that they must be deemed to have been taken. and to deliver the apartments and collect the proceeds of the sales as provided in the Apartment Purchase Agreements. to wilful neglect of duty. Assumption of control over property by a government does not automatically and immediately justify a conclusion that the property has been taken by the government. In this case it cannot be disregarded that Starrett has been requested to resume the Project. The proprietary of governmental acts should be put to the test of international standards. 10 is the codification of this case.

Guatemala says that he is German so it confiscated his property as prize of war (as an Ally). no proof that the Guards coerced him to leave. Iran: 30-year-long Khemco Agreement. mere signature = intent to be bound . IOs’ powers and privileges are limited by the constituent instrument that created them (Advisory Opinion on the Use of Nuclear Weapons). Revolutionary Gov’t declared the agreement null & void via 1980 Single Article Act for the nationalization of Iranian oil industry. >State organ -which state must espouse before the ICJ? Nottebohm case: claimant of Liechtenstein citizenship. Court: nationalization is not illegal per se but it is illegal if done to escape obligations entered into by the state. no compensation. 5 should not be strictly construed. Court: no breach. He said that Iran supported the expulsion of aliens. Rankin v. hasty application for citizenship). Liechtenstein can’t espouse. Basis of claim: failure to observe due diligence in protecting property rights of aliens. Thus. > International Organizations (IOs) cannot enter into treaties. no permanent residence or business in Liechtenstein. arbitrary act (breach) & attribution. > Immunity of international organizations IOs – an organization that is set up by treaty among two or other states. it may be implied from the functions of the organization. the Revolutionary Guards were not insurrectionists. there may be a serious interference in property rights so as to render them useless= creeping expropriation or constructive expropriation > US v. > Amoco v. IOs have international personality (Reparations case: international personality of the UN). Liechtenstein says that there was a breach since he is not German. > Cases for definition of treaties: Abaya and Vibal > Treaties: 1. but he asked for dispensation of such without explanation. Iran Tribunal: Art. & if there is no prompt & adequate compensation (includes lucrum cessans). Immunities – basis is not sovereignty but the need for the effective exercise of their functions. only states are members of IOs (Advisory Opinion on the Use of Nuclear Weapons). gov’t took over. cancelled contracts & allowed general turmoil & disorder to propagate. Vienna Convention the Law of Treaties [VCLOT]). > Dr. even without a nationalization law. it must be with the consent of the state. as in the case of the UN. whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (Art. applied for Liechtenstein citizenship—ordinarily requires residence for 3 years. Iran: US ex-pat left Iran & claims unearned wages. But if it does not.*Sir: no need for direct taking. 5. 2.=> states are still unwilling to vest IOs with the power to enter into treaties. VIENNA CONVENTION ON THE LAW OF TREATIES > “Treaty” means an international agreement concluded between States in written form and governed by international law. > do not confuse IOs with the persons authorized to enter into treaties. the charter itself might specifically endow it with international personality. Only states can enter into treaties > Convention which allowed IOs to enter into treaties never took effect. Court: State with genuine link with him was Germany (born there. Breger’s Case: no breach: given 6 months to leave. he felt unsafe & freely decided to leave. temporary visits only. In the case of other organizations. has lived in Guatemala & wants to stay. all aliens don’t have the right to stay. unless there’s a specification that ratification is required. He must prove wrongful.

VCLOT] 4. . allows all states to have standing. 36 – assent prescribed. 64. Grounds for non-compliance: 1. 52. VCLOT] 6.61. heart of a treaty= pacta sunt servanda6 -Art. 48. 51. effect of signature authentication of text 5.principle of autonomy= binding only upon signatories/ parties what agents must show to bind the state in a treaty: FULL POWERS 4. no signing needed. Fundamental change [Art. including the ICJ." This means that every treaty in force is binding upon the parties to it and must be performed by them in good faith. b.crime of aggression) [Art. 35 – express acceptance (pacta tertiis: intended to be binding on third states provided they accepted in writing) c. 26 6. Error of Fact [Art. by threat or use of force. jus cogens—substantive/normative principle > if treaty requires ratification? Overt act required to be manifested. Coercion [on representative. Art. treaty restates it only. VCLOT] 2. can sue > Art. Fraud in inducement [Art. On the other hand. 62-rebus sic stantibus7 has never been formally invoked! > Barcelona Traction Case: erga omnes obligation—remedial principle. Art. Swiss Minister of Foreign Affairs > effect of non-deposit with UN SG? Can’t be enforced in any UN agency. WON they were injured. Latin for “things thus standing. deposit instrument of ratification with the body specified as depositary or to the UN Secretary General if none is specified (Vienna Convention: in Bern.” This is a doctrine in international treaty law that stands for the proposition that a treaty may become inapplicable owing to a fundamental change of circumstances. VCLOT] 5. 62. Binding nature on parties: on whom: General Rule: signatories only: principle of autonomy under domestic law Exception: a. 2. When treaties are invalid: lack of full powers violation of jus cogens new customary law/emergence of new norm fraud and inducement corruption coercion error of fact of situation 8. 6 7 Latin for "pacts must be respected. Art. 49. Supervening impossibility of performance [Art. VCLOT] 3. pour autrui – grant rights to third states 7. VCLOT] > exception to consensuality of states: peremptory norm of general IL or jus cogens  customary norm that is non-derogable = all countries. Codifies customary norm – binds all. now illegal . new customary law in conflict (valid now invalid) (wars. 3. Art.

Means of expressing consent to be bound by a treaty: The consent of a State to be bound by a treaty may be expressed by signature. ART. termination or denunciation of a treaty. Ebdane Petition challenging the award of a road project to a Japanese firm. at the time of its conclusion. (c) any relevant rules of international law applicable in the relations between the parties.Some Principles in the VCLOT: ART. a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force: A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification. as a result of the application of the present Convention or of the provisions of the treaty. 46. A special meaning shall be given to a term if it is established that the parties so intended. ART. ART. 27 Internal law and observance of treaties: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. 4. acceptance. as the case may be. exchange of instruments constituting a treaty. This rule is without prejudice to Art. pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. 45 Loss of a right to invoke a ground for invalidating. (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty. or (b) it has expressed its consent to be bound by the treaty. Definition of “treaty” Abaya v. (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation. 31 General rule of interpretation: 1. including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty. 26 Pacta sunt servanda: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. ART. 2. ratification. 43 Obligations imposed by international law independently of a treaty: The invalidity. ART. withdrawing from or suspending the operation of a treaty: A State may no longer invoke a ground for invalidating. ART. 3. the withdrawal of a party from it. 60 and 62 if. or by any other means if so agreed. acceptance or approval. withdrawing from or suspending the operation of a treaty under ARTs. as the case may be. For the purposes of the present Convention. terminating. 11. ART. 53 Treaties conflicting with a peremptory norm of general international law (jus cogens): A treaty is void if. 46 to 50 or ARTs. The context for the purpose of the interpretation of a treaty shall comprise. . in addition to the text. There shall be taken into account. it conflicts with a peremptory norm of general international law. together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions. terminating. approval or accession. or the suspension of its operation. until it shall have made its intention clear not to become a party to the treaty. after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation.

the IABAC was legally obliged to comply with. diplomats or departmental heads. The technique of exchange of notes is frequently resorted to. charters. or.A. whether denominated executive agreements or exchange of notes or otherwise. not RA 9184. sometimes. 1999 between the Japanese Government and the RP Government is an executive agreement. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments: treaties and conventions. EO 40 expressly recognizes as an exception to its scope and application those government commitments WRT bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources. 9184. which declared that the RPJBIC loan agreement was to be of governing application over the project and that the JBIC Procurement Guidelines. It was not prescribed by an administrative agency tasked with implementing a statute through the medium of interpretative circulars or bulletins. There is no reason why the policy behind Section 55. PH-P204 taken in conjunction with the Exchange of Notes dated Dec. the Philippines. The protest mechanism is a built-in administrative remedy embodied in the law itself. no need to protest. Kolonwel Trading. The signatories of the letters may be government Ministers. Vibal v. Loan Agreement No. The Exchange of Notes expressed that the two governments have reached an understanding concerning Japanese loans to be extended to the Philippines and that these loans were aimed at promoting our country’s economic stabilization and development efforts. Kolonwel (Abaya Ii) Petition contesting award of World Bank-ADB book project for the DepEd to Vibal. may sometimes be difficult of ready ascertainment. No. Instead. The point where ordinary correspondence between this and other governments ends and agreements. or accord primacy to. et al. SC said that RTC lacked jurisdiction due to the failure to comply with the protest mechanism: 1) the protest must be in writing. their rules apply to all of those instruments as long as they meet the common requirements. as stipulated in the loan agreement. the accepting State repeats the text of the offering State to record its assent. in the form of a verified position paper. as borrower. The procurement process for the implementation of the CP I project is governed by EO 40 and its IRR. either because of its speedy procedure. Deped v. modus vivendi and exchange of notes" all refer to "international instruments binding at international law. declarations." Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. 4 of R. It is stated that "treaties. to avoid the process of legislative approval. protocols. bound itself to perform in good faith its duties and obligation under Loan No. in spite of earlier finding of conflict of interest. Kolonwel. 7118-PH) partake of an executive or international agreement within the purview of the Sec.l on the procedure for protest cannot be applied to foreign-funded procurement projects & RA 9184 doesn’t show that Congress intended such a variance in the protest procedure. the WB Guidelines on the conduct and implementation of the bidding/procurement process in question. each of the parties being in the possession of the one signed by the representative of the other. *Sir: Test in IL: whether the act is sovereign or proprietary in character Dbm v. The question as to WON foreign loan agreements with international financial institutions (Loan No. 4 has been answered in the affirmative in Abaya.PH. An "exchange of notes" is a record of a routine agreement that has many similarities with the private law contract. RA 9184 not only prohibits but also penalizes conflict of interest why? Coz it defeats the purpose of competitive bidding! . *Sir: Regarding the protest requirements under Sec 55:-this is not true! There was already an award  hence. and 3) the payment of a nonrefundable protest fee. memoranda of understanding. begin. Under the fundamental international law principle of pacta sunt servanda. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". The agreement consists of the exchange of two documents. shall primarily govern the procurement of goods necessary to implement the main project. 27. 7118. agreements. embodied in Sec.Loan Agreement + Exchange Of Notes = Executive Agreement. Thus. conventions. Under the usual procedure. 2) the protest must be submitted to the head of the procuring entity.

" Further. medical and humanitarian missions. we refer to the Vienna Convention on the Law of Treaties. But since the terminology used in the VFA is ambiguous. Hence." Section 25." SC cannot take judicial notice of the events transpiring down south. or impartiality. exec agreement. It is the VFA which gives continued relevance to the MDT despite the passage of years. Zamora Constitutionality of the VFA. as reported from the saturation coverage of the media. troops. A treaty is defined under Article 2 of the Vienna Convention on the Law of Treaties as "an international instrument concluded between States in written form and governed by international law. The first of these is the Mutual Defense Treaty (MDT). whether embodied in a single instrument or in 2 or more related instruments. to national legislation. But they cannot engage in combat. As a rule. a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty. but for the simple reason that facts must be established in accordance with the rules of evidence. Executive Secretary Constitutionality of the Balikatan joint exercise by the US and RP military. not because of any issue as to their truth. disaster relief operations. Valid Treaty Despite Treatment As Ea Only By The Other State. as in all other treaties and international agreements to which the Philippines is a party.” SC has the view that it was deliberately made that way to give both parties a certain leeway in negotiation. though it nevertheless remains in effect as a valid source of international obligation. Binding Treaty. it was stated that “the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. and whatever its particular designation. SC does not take cognizance of newspaper or electronic reports per se. Both the Mutual Defense Treaty and the Visiting Forces Agreement. the Mutual Defense Treaty was concluded way before the present Charter. CA. civic action projects such as the building of school houses. As conceived. ratified by a majority of the votes cast by the . must be read in the context of the 1987 Constitution. Article XVIII reads: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases. Under the doctrine of incorporation as applied in most countries. In particular. accuracy. It is this treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm. "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.does not matter it is still binding it’s all the same Bayan v. and the like. The determination thereof involves basically a question of fact. “ [But SC said that[ A treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. The present subject matter is not a fit topic for a special civil action for certiorari. which it refers to as the context of the treaty. In this manner. not superior. *Sir: whatever you call it. The Convention likewise dictates what may be used as aids to deduce the meaning of terms. rules of international law are given a standing equal. In Philip Morris v. On “activities. or facilities shall not be allowed in the Philippines except (1) under a treaty (2) duly concurred in by the Senate and. when the Congress so requires. which is presumed to verbalize the parties' intentions. as well as other elements may be taken into account alongside the aforesaid context. which contains provisos governing interpretations of international agreements (Article 31 & 32): the cardinal rule of interpretation must involve an examination of the text. foreign military bases. treaty. the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources. sea search-and-rescue operations to assist vessels in distress. visiting US forces may sojourn in Philippine territory for purposes other than military. The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines bound itself.Definition of “ratification” Lim v.

which they exhibit to the other negotiators at the start of the formal discussions. has stated that the US government has fully committed to living up to the terms of the VFA. Pimentel v. it the VFA a treaty? Yes. claiming that Senate has the power to ratify & the RP has a ministerial duty to ratify the treaty since we signed it already. the President may not be faulted or scarred. In international law. Eastern Sea Trading states that EOs are binding even without concurrence of the Senate or Congress because “the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage…The validity of these has never been seriously questioned by our courts. In any case. The . *Sir: issue: VFA-concurred in by our senate. through which the formal acceptance of the treaty is proclaimed. SC: no to both. but not by the US senate. instead of Section 25. The role of the Senate is limited only to giving or withholding its consent. Commissioner of Customs vs. [2] it is otherwise established that the negotiating States agreed that ratification should be required [3] the representative of the State has signed the treaty subject to ratification. much less be adjudged guilty of committing an abuse of discretion in some patent. there is a compliance with the mandate of the Constitution. there is no difference between treaties and EOs in their binding effect upon states." Under this provision. Executive Secretary Mandamus petition to compel transmittal to the Senate the signed copy of the Rome Statute of the Int’l Criminal Court (being held the DFA) for ratification. US need not submit the VFA to the US Senate for concurrence pursuant to its Constitution. through Ambassador Hubbard. to the ratification. as long as the negotiating functionaries have remained within their powers. but. These representatives are provided with credentials known as full powers. gross. under international law.” Ratification is an executive act. or concurrence. it does not indicate the final consent of the state in cases where ratification of the treaty is required. we are satisfied with the Senator’s pronouncement that the US will recognize it. as the case may be. or [4] the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative. Ratification Is Executive. becomes the basis of the subsequent negotiations. undertaken by the head of the state or of the government. and capricious manner. 2. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives.people in a national referendum held for that purpose. the records reveal that the US Government. The President acted within the confines and limits of the powers vested in him by the Constitution. It is equivalent to final acceptance. Isagani Cruz on the treaty-making process: 1. and binds itself further to comply with its obligations under the treaty. An EO is binding. The role of the Senate in relation to treaties is essentially legislative in character. It is inconsequential whether the US treats the VFA merely as an executive agreement (EO) because. still. Even if he erred in submitting the VFA to the Senate for concurrence under Section 21. and (3) recognized as a treaty by the other contracting State. It is standard practice for one of the parties to submit a draft of the proposed treaty which. The consent to be bound is expressed by ratification when: [1] the treaty provides for such ratification. For as long as the US acknowledges the VFA as a treaty. SC: VFA still binding on us/is still a binding treaty because it is not our business to dwell into the domestic law of the other contracting party. together with the counter-proposals. or was expressed during the negotiation. an executive agreement is as binding as a treaty. the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty. Can’t Compel Transmittal. The power to ratify is vested in the President and not in the legislature. Signing is the step primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties. because this is to accord too strict a meaning to the phrase.

which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties.there is no room for application of the MDT in the VFA as there is no external armed attack on the Philippines to speak of. especially those in Mindanao. The role of the Senate is limited only to giving or withholding its consent. Grounds 1. but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. as applied in light of the understanding and the assurances made during the ratification by the Senate of the VFA and. more importantly.it is incumbent upon this Court to inquire as to the actual length of time US military personnel stay in the Philippines. such decision is within the competence of the President alone. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests 4. which cannot be encroached by SC via a writ of mandamus. considering that: . Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly. to the ratification. The DFA signing is not equal to ratification. under the guise of a visit pursuant to the VFA . (2) whether the word visit means what it says. Exchange of the instruments of ratification. is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. Where ratification is dispensed with and no effectivity clause is embodied in the treaty. not a ministerial act. by any stretch of imagination. Sec. GADALEJ in entering into patently unconstitutional agreements with US Ambassador and transferring custody over Smith the US Authorities.US military personnel are in the Philippines the whole year round. If that were so. The signature does not signify the final consent of the state to the treaty. MDT does not apply to the VFA/ contrary to the clear intent of the VFA. without any geographical and time limitations. 7: “shall” (no discretion on submission for concurrence). Ratification which is the next step. Issue on procedure: EO 459. that is. in the context of current practices of the US armed forces . Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. 3. each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification. Issues: (1) WON the Mutual Defense Treaty (MDT) applies to the VFA . acceptance or approval of the signatory states. By ratifying a treaty signed in its behalf. be considered as temporary visits. But after signing. 2) concurrence of senate > Senate concurrence: what triggers it? Transmittal by Executive. bound not to defeat the spirit of the treaty & comply with requirement of ratification—transmittal to Senate. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. The power to ratify is vested in the President. the requirement of ratification of treaties would be pointless and futile. Salonga Petition Challenge to RTC order transferring Daniel Smith from the Makati City Jail to US custody under an agreement based on the VFA. a state expresses its willingness to be bound by the provisions of such treaty. US military forces do not merely visit the Philippines but stay on indefinitely – see issue 1 2. subject to the concurrence of the Senate. There is no legal obligation to ratify a treaty. the President has the discretion even after the signing of the treaty by the Philippine representative WON to ratify the same. *Sir: ratification is compliance with the process to make it binding: 1) signing of senate. Thus. or concurrence. the instrument is deemed effective upon its signature. It is the ratification that binds the state to the provisions thereof. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states.document is ordinarily signed in accordance with the alternat. In fact. Such presence could not. SC has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.

if. All that Nicaragua need have done was to deposit its instrument of ratification. It further considers that the estoppel on which the US has relied and which would have barred Nicaragua from instituting proceedings against it. XVIII. VFA derogates and infringes on the exclusive power of the SC to promulgate rules of procedure (Art. VFA violates petitioners’ rights to due process and equal protection – on custody of Smith 3. It follows that the declaration had a certain potential effect which could be maintained for many years. VIII Sec. XVIII of the Constitution. Valid declaration of intent to ratify. US US contested jurisdiction since Nicaragua allegedly had not yet ratified the instruments relating to the compulsory jurisdiction of the PCIJ. The Court notes that the Nicaraguan declaration was valid at the time when the question of the applicability of the new Statute. since under the system of the PCIJ a declaration was valid only on condition that it had been made by a State which had signed the Protocol of Signature of the Statute. Until that moment it merely serves as a notice to the other State of the eventual attitude of the signatory State. an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so is without legal effect. it is right to conclude that the constant acquiescence of that State in those affirmations constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court. Zamora WRT Art. *Sir: you can make reservations on provisions as long as they are not incompatible with the object and purpose of the Convention hence. a party accept the reservation as being compatible with the object and purpose of the Convention. since Nicaragua had not deposited its instrument of ratification and it was therefore not a party to the Statute. otherwise.a. it had retained its potential effect at the moment when Nicaragua became a party to the Statute of the new Court. VFA is unconstitutional as it violates Sec. 5. 25 Art. 5 par. can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention. An objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I only upon ratification. The Court considers that. Reservations To The Convention On The Prevention & Punishment Of The Crime Of Genocide A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others. 5 1987 Constitution) b. cannot be said to apply to it. having regard to the source and generality of statements to the effect that Nicaragua was bound by its 1929 declaration. If a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention. and it could have done that at any time until the day on which the new Court came into existence. it is not disputed that the 1929 declaration could have acquired binding force. CA’s GADALEJ in recognizing the agreement between US Ambassador and Sec. It had not become binding under that Statute. Having been made "unconditionally" and being valid for an unlimited period. Public respondents gravely abused their discretion when they transferred custody of Smith to US authorities without court authority. arose. that of the ICJ. 4. no reservation on the norm Nicaragua v. that State cannot be regarded as being a party to the Convention. Romulo as binding on the Philippines and declaring the Smith petition moot – see Constitutional requirements cited in Bayan v. However. Section 25. it can in fact consider that the reserving State is a party to the Convention. *Sir: Treaty-making Process: . it can in fact consider that the reserving State is not a party to the Convention. on the other hand. It cannot be used to justify the transfer of custody of Smith.

codification of the law is the Vienna Convention on Diplomatic Relations (1961). -state agent must have authority to negotiate: full powers. RS may at any time notify the sending state (SS) that the consular officer is persona non grata or that any other member of the consular staff is not acceptable. degrees. 30. Art. 27. 31. Art. There is no prescribed form. Household staff Diplomatic immunity applies only: 1. signing is only for authentication of the document and there arises another obligation: duty not to do anything to defeat the purpose of the treaty prior to ratification. 42: prohibition on professional or commercial practice for personal profit in the RS. 24. if ratification is required. Art. Diplomatic staff functional immunities 4. 34. 39: rights and privileges of the diplomatic mission. 41: duty to respect laws of receiving state. Ratification -if ratification is not required. Before the head of mission is sent to the receiving state (RS). 38. consuls. To the accredited state 2.1. Spouses and kids 3. While in transit to & from the accredited state & the sending state/diplomatic station -does not apply when he is on vacation! Bernas: > Act of State Doctrine – arose from a series of cases in the US where the issue was whether US courts could consider the validity of acts of a foreign state alleged to be in violation of international law. 22. 4). 23. > Diplomatic immunities – WRT political relations of states. Negotiations 3. Ambassadors. 31. archives and interests of the SS.Consuls attend to administrative and economic issues such as the issuance of visas. 9: persona non grata. 33. 37. SS shall either recall or terminate his functions with the consular post. Art. Art. > Consuls and consular immunities . VIENNA CONVENTION ON CONSULAR RELATIONS AND OPTIONAL PROTOCOLS *Sir: Diplomatic Immunities: 1. 36. 1: which diplomatic representatives enjoy immunities. . Art: 3: functions of the diplomatic mission. etc full immunities 2. The head of a consular post is admitted to the exercise of his functions by an authorization from the RS termed an exequatur. VIENNA CONVENTION ON DIPLOMATIC RELATIONS. RS is under no obligation to give reasons for refusing an agrement (Art. 27. signing enough. Art. 5: Consular functions Art. 6. Vienna Convention on Consular Relations (1967). lack thereof makes it void ab initio. 29. Preliminaries 2. an agrement must first be obtained. Diplomatic relations are purely by mutual consent. 32. 33: RS must protect the consular premises. Signing 4.

Art. (f) acting as notary. cultural & scientific life. (e) helping & assisting nationals of SS. not contrary to RS laws (g) safeguarding interests of SS nationals in succession mortis causa in RS. Art. per laws of RS (h) safeguarding. its nationals. representing or arranging representation for SS nationals before RS tribunals & authorities. Art. cultural & scientific relations & promoting friendly relations between SS & RS (c) ascertaining by all lawful means conditions & dev’ts in RS’ commercial. 5. allowed if not made available elsewhere). & reporting to the Gov’t of the SS. civil registrar. ascertaining by all lawful means conditions & dev’ts in RS. Art. economic. 34: 35: 36: 41: 42: 43: 44: 45: freedom of movement freedom of communication communication and contact with nationals of the sending state personal inviolability of consular officers notification of arrest. in similar capacities. Art. 3. Nothing here shall be construed as preventing the performance of consular functions by a diplomatic mission. & developing their economic. promoting friendly relations between the SS & the RS. (d) issuing passports & travel documents to SS nationals & visas or documents to persons wishing to travel to SS. interests of minors & persons lacking full capacity who are nationals of SS (i) per RS procedure. 5 (a) protecting interests of SS. 3 s 1. 4. Art. both individuals & bodies corporate (b) furthering dev’t of commercial. Art.Art. negotiating with RS’ Government. to get provisional measures for preservation of rights & interests of absent nationals (j) transmitting judicial & extrajudicial documents or executing letters rogatory or commissions to take evidence for SS courts (k) exercising rights of supervision & inspection per laws of SS in respect of SS’ vessels & aircraft Vienna Conventions Diplomatic Relations Function Art. (HLR: espionage. economic. detention or prosecution immunity from jurisdiction liability to give evidence waiver of privileges and immunities Consular Relations Art.representing sending State (SS) in receiving State (RS). . cultural & scientific relations. & performing certain functions of an administrative nature. 2. reporting to SS & giving info to persons interested. per RS laws. protecting in RS the interests of the SS & its nationals. 2.

3. This article is without prejudice to any practice accepted by the RS regarding the precedence of the representative of the Holy See. 3. Alterations in the credentials of a head of mission not involving any change of class shall not affect his precedence. . Art. 3. Heads of mission are divided into 3 classes: 1. Except as concerns precedence & etiquette. 16 1. Heads of consular posts shall rank in each class according to the date of the grant of the exequatur. his precedence shall be determined according to the date of the provisional admission. 16 1. & other heads of mission of equivalent rank. 3 of Art. & crew (l) extending assistance to vessels & aircraft in (k) & to their crews. there shall be no differentiation between heads of mission by reason of their class. Par. conducting investigations into any incidents during the voyage. 1 of this Art. 2. officers & seamen per SS laws (m) performing functions entrusted to a consular post by SS. charges d'affaires accredited to Ministers for Foreign Affairs. ambassadors or nuncios accredited to Heads of State. 2. examining & stamping the ship's papers. in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts. Heads of mission shall take precedence in their respective classes in the order of the date and time of taking up their functions in accordance with Article 13. 11 were presented to RS. before obtaining the exequatur is admitted to the exercise of his functions provisionally. 2. this precedence shall be maintained after the granting of the exequatur. taking statements regarding the voyage. Art. 2. &. (b) consuls. without prejudice to the powers of RS authorities. Heads of consular posts are divided into 4 classes: (a) consuls-general. (d) consular agents.Classes of Heads Precede nce as to Heads Art. ministers & internuncios accredited to Heads of State. envoys. not prohibited by RS laws or not objected to by RS in the agreement Art. If the head. Order of precedence as between 2 or more heads who obtained the exequatur or provisional admission on the same date shall be determined per the dates on which their commissions or similar instruments or the notifications referred to in par. & settling disputes of any kind between the master. 14 1. 9 1. (c) vice-consuls. 2.

an acting head of post may act provisionally as head of the consular post. Art. 15 1. Art. If the post of head of the mission is vacant. If SS accredits a head of mission to 1 or more other States it may establish a diplomatic mission headed by a charge d'affaires ad interim in each State where the head of mission has not his permanent seat.Multiple Posts Art. unless objection is offered by the RS. accredit a head of mission or assign any member of the diplomatic staff to more than 1 State. Acting heads of posts shall rank after all heads &. 6. either by the 4. A head of mission or any member of the diplomatic staff of the mission may act as representative of the SS to any IO. as between themselves. 18 Two or more States may. unless there is express objection by any of the RSs. 5 1. 3. SS may. Art. If the head of a consular post is unable to carry out his functions or the position of head of consular post is vacant. 19 1. The full name of the acting head of post shall be notified either by the diplomatic mission of the . 6 Two or more States may accredit the same person as head of mission to another State. 2 of Art. Heads shall have precedence over consular officers not having that status. after it has given due notification to RSs concerned. in the order & per rules laid down in the foregoing paragraphs. with the consent of RS. or if the head of the mission is unable to perform his functions. 5. 2. 15. 2. The name of the charge d'affaires ad interim shall be notified. Honorary consular officers who are heads shall rank in each class after career heads. appoint the same person as a consular officer in that State. a charge d'affaires ad interim shall act provisionally as head of the mission. Tempora ry head Art. rank according to the dates they assumed functions as acting heads per in the notifications given under par.

A person appointed as a member of a consular post may be declared unacceptable before . 4. with the consent of the RS. notify SS that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. he shall.. RS may at any time & without having to explain its decision.head of the mission or. RS may make the admission as acting head of post of a person who is neither a diplomatic agent nor a consular officer of the SS in the RS conditional on its consent. A person may be declared non grata or not acceptable before arriving in RS’ territory. 2. a member of the diplomatic staff of the diplomatic mission of the SS in the RS is designated by the SS as an acting head of post. to the Ministry for Foreign Affairs of the RS or to the authority designated by that Ministry. 3. be obliged to grant to an acting head of post any facility. SS shall either recall the person or terminate his functions with the consular post. RS shall not. by the head of the consular post. be designated by the SS to be in charge of the current administrative affairs of the mission. When. in the circumstances referred to in paragraph 1 of this Article. 9 1. by any competent authority of the SS. by the Ministry for Foreign Affairs of the SS to the Ministry for Foreign Affairs of the RS or such other ministry as may be agreed. Art. Persona non grata Art. if the RS does not object thereto. or. RS may either withdraw the exequatur from the person or cease to consider him as a member of the consular staff. 23 1. the provisions of the present Convention shall apply to him on the same basis as to the head of the consular post concerned. As a general rule. in case he is unable to do so. if that State has no such mission in the RS. 2. privilege or immunity which the head of the consular post enjoys only subject to conditions not fulfilled by the acting head of post. While he is in charge of the post. 3. this notification shall be given in advance. If SS refuses or fails within a SS or. If SS refuses or fails within a reasonable time to carry out its obligations under par. however. a member of the administrative and technical staff may. continue to enjoy diplomatic privileges and immunities. In cases where no member of the diplomatic staff of the mission is present in the receiving State. 2. SS shall either recall the person or terminate his functions with the mission. RS may at any time notify SS that a consular officer is persona non grata or that any other member of the consular staff is not acceptable. if he is unable to do so. The competent authorities of the RS shall afford assistance and protection to the acting head of post.

Art. except: arriving in the territory of RS or. RS shall permit entry of & grant exemption from all customs duties. 3. 1 & 3 of this Article. personal or real. national. cartage & similar services. SS shall withdraw his appointment. 34 A diplomatic agent shall be exempt from all dues & taxes. 36 1. Art. The personal baggage of a diplomatic agent shall be exempt from inspection. or articles the import or export of which is prohibited by the laws and regulations of the RS or which are subject to its quarantine laws and regulations. RS may refuse to recognize the person as a member of the mission. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative. or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the RS. 49 1. regional or municipal. on: (a) articles for the official use of the consular post. 4. Such inspection shall be carried out in the presence of the consular officer or member of his family concerned. including articles intended for his establishment. including articles intended for his establishment. if already in RS. Tax exempti on Art. before entering on his duties with the consular post. unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article. articles for the personal use of a diplomatic agent or members of his family forming part of his household. Consular officers and consular employees and members of their families forming part of their households shall be exempt from all dues and taxes. RS shall permit entry of & grant exemption from all customs duties.reasonable period to carry out its obligations under par. taxes. In cases in pars. personal or real. 1. cartage and similar services. 2. & related charges other than charges for storage. regional or . Exempti on from duties & customs Art. The articles intended for consumption shall not exceed the quantities necessary for direct utilization by the persons concerned. 50 1. It may be inspected only if there is serious reason to believe that it contains articles other than those referred to in sub-paragraph (b) of paragraph 1 of this Article. national. 2. taxes. RS is not obliged to give to SS reasons for its decision. 2. on: 1. (b) articles for the personal use of a consular officer or members of his family forming part of his household. Personal baggage accompanying consular officers & members of their families forming part of their households shall be exempt from inspection. Consular employees shall enjoy the privileges & exemptions specified in paragraph 1 of this Article in respect of articles imported at the time of first installation. and related charges other than charges for storage. articles for the official use of the mission.

estate. and duties on transfers. dues & taxes on private immovable property in RS territory. (e) charges levied for specific services rendered. 3. including the residence of the head of the mission. 3. subject to the provisions of Article 32. succession or inheritance duties. charges levied for specific services rendered. Use of SS’ flag & emblem Article 29 1. dues & taxes on private income having its source in the RS & capital taxes on investments made in commercial undertakings in the RS. 23 1. 2. 6. 5. . including capital gains. on the residence of the head of the consular post & on his means of transport when used on official business. regional or municipal dues & taxes in respect of the premises of the mission. registration. except: (a) indirect taxes of a kind which are normally incorporated in the price of goods or services. Art.1. having its source in the RS and capital taxes relating to investments made in commercial or financial undertakings RS. subject to the provisions of Article 32. (b) dues or taxes on private immovable property situated in the territory of RS. (c) estate. indirect taxes of a kind which are normally incorporated in the price of goods or services. municipal. and on his means of transport. court or record fees. This exemption shall not apply to such dues & taxes payable under RS law by persons contracting with SS or the head of the mission. whether owned or leased. Members of the consular post who employ persons whose wages or salaries are not exempt from income tax in the RS shall observe the obligations which the laws and regulations of that State impose upon employers concerning the levying of income tax. The national flag of the SS may be flown & its coat-of-arms displayed on the building occupied by the consular post & at the entrance door thereof. subject to the provisions of Article 23. WRT immovable property. 2. levied by the RS. 4. succession or inheritance duties levied by the RS. mortgage dues and stamp duty. Members of the service staff shall be exempt from dues and taxes on the wages which they receive for their services. other than such as represent payment for specific services rendered. court or record fees. (f) registration. 20 The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission. mortgage dues and stamp duties. Art. (d) dues and taxes on private income. SS & the head of the mission shall be exempt from all national. unless he holds it on behalf of the SS for the purposes of the mission. 2. 4 of Article 39. subject to par. The SS shall have the right to the use of its national flag & coat-of-arms in the RS per provisions of this Article. 2. subject to the provisions of paragraph (b) of Article 51.

Art. 2. 3. & prompt. (b) on withdrawal of the exequatur. furnishings & other property thereon & the means of transport of the mission shall be immune from search. Premises of the mission. in accordance with par. 2. Art. attachment or execution. except with the consent of the head of the mission. RS is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. it refuses to recognize the diplomatic agent as a member of the mission. . Such consent may be assumed in case of fire or other disaster requiring prompt protective action. RS is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 28 The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues 3. Subject to par. requisition. 3 of Art. Private residence of a diplomatic agent shall enjoy the same inviolability & protection as the premises of the mission. 43 The function of a diplomatic agent comes to an end. except as in par. RS authorities shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission. on notification by RS to SS that. adequate & effective compensation shall be paid to the SS. In the exercise of this right. 2. End of function Tax exempti on of fees & Art. The agents of the RS may not enter them. 2 of this Article. regulations and usages of the RS. 31. regard shall be had to the laws. on notification by SS to RS that the function of the diplomatic agent has come to an end. The consular post may levy in RS territory the fees & charges provided by SS laws for consular acts. 4. inter alia: 1. 2. 2 of Article 9. (c) on notification by RS to SS that the RS has ceased to consider him as a member of the consular staff. 31 1. 25 The functions of a member of a consular post shall come to an end inter alia: (a) on notification by SS to RS that his functions have come to an end. If expropriation is necessary for such purposes. Art. Art. Consular premises. 3. 39 1. His papers. 22 1. furnishings. shall also enjoy inviolability. 30 1. property of the consular post & its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. correspondence &. property. all possible steps shall be taken to avoid impeding performance of consular functions. Consular premises shall be inviolable to extent herein provided. Art. Premises of the mission shall be inviolable.Inviolabil ity of premises Art.

43 1. Art. The sums collected in the form of the fees & charges in par. the proceedings shall be conducted with the respect due to him by reason of his official position &. except in the case specified in par. Art.charges and taxes. 42 In the event of the arrest or detention. or of criminal proceedings being instituted against him. Except in the case specified in par. freedom or dignity. consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect. 41 1. A diplomatic agent shall enjoy . it has become necessary to detain a consular officer. Art. in a manner which will hamper the exercise of consular functions as little as possible. except in the case of a grave crime and pursuant to a decision by the competent judicial authority. 1 of this Article. pending trial. When. the proceedings against him shall be instituted with the minimum of delay. 29 The person of a diplomatic agent shall be inviolable. 1 of this Article. Consular officers shall not be liable to arrest or detention pending trial. in the circumstances in par. Nevertheless. 40 RS shall treat consular officers with due respect & shall take all appropriate steps to prevent any attack on their person. freedom or dignity. & the receipts for such fees & charges. 1 of this Article. Inviolabil ity of agent/off icer Art. 2. Consular officers & consular employees shall Immunit y from Art. RS shall promptly notify the head of the consular post. of a member of the consular staff. he must appear before the competent authorities. 1 of this Article. 31 1. RS shall notify SS through the diplomatic channel. He shall not be liable to any form of arrest or detention. If criminal proceedings are instituted against a consular officer. 2. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person. 3. shall be exempt from all dues & taxes in the RS. Should the latter be himself the object of such measure. Art.

2. vessel or aircraft. 41. Art. except as in par. 4. 1 of this Article shall not. Waiver must always be express. heir or legatee as a private person & not on behalf of SS. The provisions of par. exceptio ns Waiver of immunit y immunity from the criminal jurisdiction of RS. Initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. Such immunity from RS jurisdiction does not exempt him from SS jurisdiction. an action relating to any professional or commercial activity exercised by the diplomatic agent in RS outside his official functions. The waiver shall in all cases be express. 2. 3. 43 & 44. not be amenable to the jurisdiction of the judicial or administrative authorities of RS in respect of acts performed in the exercise of consular functions. unless he holds it on behalf of SS for purposes of the mission. The immunity from jurisdiction of diplomatic agents & of persons enjoying immunity under Article 37 may be waived by SS. No measures of execution may be taken in respect of a diplomatic agent except in the cases under herein subpar. 2. an action relating to succession in which the diplomatic agent is involved as executor. 45 1. a real action relating to private immovable property situated in RS territory.s (a). . 3 of this Article. 1. 3. WRT a member of the consular post. administrator. 32 1. 3. The initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction under Article 43 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim. apply in respect of a civil action either: (a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State. A diplomatic agent is not obliged to give evidence as a witness. (b) & (c) of par. 2. He shall also enjoy immunity from its civil and administrative jurisdiction. 2. any of the privileges & immunities provided for in Arts. & shall be communicated to RS in writing. however. SS may waive.jurisdicti on. & provided that such measures can be taken without infringing the inviolability of his person or residence. Art. or (b) by a third party for damage arising from an accident in RS caused by a vehicle. except in the case of: 1. 3.

or on expiry of a reasonable period in which to do so. privileges & immunities shall come to an end when they cease to belong to the household or to be in the service of a member of the consular post. from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. in respect of such measures. WRT acts performed by a consular officer or a consular employee in the exercise of his functions. his private staff’s privileges & shall normally cease at the moment when the person concerned leaves RS or on the expiry of a reasonable period in which to do so. that if such persons intend leaving RS within a reasonable period thereafter. 1 of this Article or from the date of their entry into RS territory or from the date of their becoming a member of such family or private staff. even in case of armed conflict. their privileges & immunities shall subsist until the time of their departure. 4. but shall subsist until that time. his. Art. provided. 2 of this Article. if already in its territory. if already in its territory. but shall subsist until that time. except any property acquired in the country the export of 4. The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision. even in case of armed conflict. When the functions of a person enjoying privileges & immunities have come to an end. 3. 2. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment. Members of the family of a member of the consular post forming part of his household & members of his private staff shall receive the privileges & immunities from the date from which he enjoys privileges & immunities per par. Every member of the consular post shall enjoy herein privileges & immunities from the moment he enters RS territory on proceeding to take up his post or. Every person entitled to privileges & immunities shall enjoy them from the moment he enters RS territory on proceeding to take up his post or. 4. In case of the death of a member of the mission. But. immunity shall continue to subsist. such privileges & immunities shall normally cease at the moment when he leaves the country. 2. his family’s. . immunity from jurisdiction shall continue to subsist without limitation of time. a separate waiver shall be necessary. In the event of the death of a member of the mission not a national of or permanently resident in RS or a member of his family forming part of his household. When the functions of a member of the consular post have come to an end. from the moment when he enters on his duties with the consular post. Art. But. for which a separate waiver shall be necessary. the members of his family shall continue to enjoy the privileges & immunities to which they are entitled until the expiry of a reasonable period in which to leave the country. 53 1. 3. In the case of the persons in par. RS shall permit the withdrawal of the movable property of the deceased. WRT acts performed by such a person in the exercise of his functions as a member of the mission. whichever is the latest.Start & end of immuniti es & privilege s 4. 39 1. whichever is the sooner.

55 1.Respect for RS laws No profit which was prohibited at the time of his death. 2. 57 1. Art. Without prejudice to their privileges & immunities. All official business with RS entrusted to the mission by SS shall be conducted with or through the Ministry for Foreign Affairs of RS or such other ministry as may be agreed. Without prejudice to their privileges & immunities. They also have a duty not to interfere in the internal affairs of that State. 3. 2. rules of general IL or special agreements between the SS & RS. Premises of the mission must not be used in any manner incompatible with functions of the mission per the Convention. Privileges & immunities shall not be accorded: (a) to consular employees or to members of the service staff who carry on any private gainful occupation in RS. succession & inheritance duties shall not be levied on movable property the presence of which in RS was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission. 3. Par. Art. 2. 41 1. Art. 2 of this Article shall not exclude the possibility of offices of other institutions or agencies being installed in part of the building in which the consular premises are situated. In that event. (b) to members of the family of a person referred to in sub-par. Estate. Art. it is the duty of all persons enjoying such privileges & immunities to respect the laws & regulations of RS. . 5. whichever is the sooner. In the event of the death of a member of the consular post. They have a duty not to interfere in the internal affairs of that State. 42 A diplomatic agent shall not in RS practice for personal profit any professional or commercial activity. Career consular officers shall not carry on for personal profit any professional or commercial activity in RS. (a) of this paragraph or to members of his private staff. the said offices shall not be considered to form part of the consular premises. the members of his family forming part of his household shall continue to enjoy the privileges & immunities accorded to them until they leave RS or until the expiry of a reasonable period enabling them to do so. (c) to members of the family of a member of a consular post who themselves carry on any private gainful occupation in RS. it is the duty of all persons enjoying such privileges & immunities to respect RS laws. provided that the premises assigned to them are separate from those used by the consular post. The consular premises shall not be used in any manner incompatible with the exercise of consular functions.

if needed. grant to members of the consular post & members of the private staff. (c) SS may entrust the protection of its interests & of its nationals to a third State acceptable to RS. with the property contained therein & the consular archives. even in case of armed conflict. although not represented in RS by a diplomatic mission. place at their disposal necessary means of transport for themselves & their property. (a) of herein par. &. It shall. 1 of this Article shall apply. 2. SS may entrust the protection of its interests & of its nationals to a third State acceptable to RS. In the event of the temporary or permanent closure of a consular post. even in case of armed conflict. with the consent of RS. 26 RS shall. to a third State acceptable to RS. even in case of armed conflict. 1 shall apply.Armed conflict Art. (a) if SS. 27 1. or (b) if SS has no diplomatic mission & no other consular post in RS. or if a mission is permanently or temporarily recalled: 1. place at their disposal necessary means of transport for themselves & their property other than property acquired in RS the export of which is prohibited at the time of departure. sub-par. with its property & archives. In addition. respect & protect the consular premises. sub-pars/ (b) & (c) of par. grant facilities in order to enable persons enjoying privileges & immunities. In the event of the severance of consular relations between 2 States: (a) RS shall. with the exercise of consular functions in the district of that consular post. with its property & archives. . & members of the families of such persons irrespective of their nationality. It must. if needed. other than RS nationals. 3. RS must. together with the property of the consular post & the consular archives. Art. & to members of their families forming part of their households irrespective of nationality. 45 If diplomatic relations are broken off between 2 States. 44 RS must. Art. other than RS nationals. has another consular post in the territory of that State. that consular post may be entrusted with the custody of the premises of the consular post which has been closed. respect & protect the premises of the mission. even in case of armed conflict. 2. (b) SS may entrust the custody of the consular premises. SS may entrust the custody of the premises of the mission. to leave at the earliest possible moment. End of relations Art. to a third State acceptable to RS. necessary time & facilities to enable them to prepare their departure & to leave at the earliest possible moment after the termination of the functions of the members. with the property contained therein & the consular archives.

38 1. RS shall exercise its jurisdiction over those persons in such a way as not to hinder unduly the performance of the functions of the consular post. the proceedings shall. 4. a diplomatic agent who is a national of or permanently resident in RS shall enjoy only immunity from jurisdiction. 2. A consular post may be established in the territory of the RS only with that State's consent. 2. Those members of the families of members of the consular post & those members of the private staff who are themselves nationals of or permanently resident in RS shall likewise enjoy facilities. Other members of the staff of the mission & private servants who are nationals of or permanently resident in RS shall enjoy privileges & immunities only to the extent admitted by RS. However. consular officers who are nationals of or permanently resident in RS shall enjoy only immunity from jurisdiction & personal inviolability in respect of official acts performed in the exercise of their functions. Except insofar as additional privileges & immunities may be granted by RS. RS must exercise its jurisdiction over those persons so as not to interfere unduly with the performance of the functions of the mission. Other members of the consular post who are nationals of or permanently resident in RS & members of their families. & members of the families of consular officers in par. 3 of Article 44. Except in so far as additional facilities. takes place by mutual consent. privileges & immunities only in so far as these are granted to them by RS. & the privilege in par. Commonalities – Diplomatic Relations. 1. Consular Relations Articles 1: Definitions Establishment by mutual consent: “Art. 71 1.” “Art. & of permanent diplomatic missions. privileges & immunities only in so far as these are granted to them by RS. RS shall also be bound by the obligation laid down in Article 42. The establishment of diplomatic relations between States. be conducted in a manner which will hamper the exercise of consular functions as little as possible. So far as these consular officers are concerned. . & inviolability. 2. privileges & immunities may be granted by RS. shall enjoy facilities.Agent/of ficer who is a RS national/ permane nt resident Art. If criminal proceedings are instituted against such a consular officer. 1 of this Article. Art. except when he is under arrest or detention. in respect of official acts performed in the exercise of his functions.

8). 12). 5. 11. 26). consular post (Art.” Establishment of mission (Art. Subsequent changes in the seat of the consular post.Art. Nationality of members of diplomatic staff of mission (Art. 4. Inviolability of archives & documents of mission (Art. shall be notified of: 1. 24). 3. including those for its members. having regard to circumstances & conditions in RS & to the needs of the particular mission. The seat of the consular post. The consent of the RS shall also be required if a consulate-general or a consulate desires to open a vice-consulate or a consular agency in a locality other than that in which it is itself established. 6): must be with consent of the RS (which may allow consular officer to exercise functions outside his post). appointment of _________.2. fact that they are leaving such employ. Where possible. Notification as to members of mission. arrival & final departure of ________ of persons in par. arrival & final departure of a person belonging to the __________ &. 21). Size of Mission. 10). of the consular post (Art. Freedom of movement of members of the mission (Art. (a) of this paragraph &. 24. wherever they are Full facilities…of the mission (Art. 33): at any time. They may not be appointed from among persons having the nationality of RS. consular post (Art. Consular Staff: DR . private servants (Art. or consular post (Art. its classification and the consular district shall be established by the SS and shall be subject to the approval of the RS. as to members of consular posts. 2. 4. 25). engagement & discharge of persons resident in RS as members ______ or private servants [staff] entitled to privileges & immunities. prior notification of arrival & final departure shall also be given. family member forming part of his household. RS may require that the size of a mission be kept within limits considered by it to be reasonable & normal. 30): RS shall either facilitate acquisition on its territory by SS of premises necessary for _____ or assist the latter in obtaining some other accommodation. refuse to accept officials of a particular category. within similar bounds & on a nondiscriminatory basis. its classification or the consular district may be made by the SS only with the consent of the RS. & RS may equally. RS may reserve the same right WRT nationals of a third State who are not also nationals of SS. 28): RS shall accord full facilities for the performance of the functions of the _________. 3. CR .” Assistance/accommodation in getting facilities of the mission (Art.Art. 20: subject to agreement. 34): . RS Ministry for Foreign Affairs. 22): should in principle be of the nationality of SS. arrival & final departure or termination of functions with the mission. The prior express consent of the RS shall also be required for the opening of an office forming part of an existing consular post elsewhere than at the seat thereof. where appropriate. private staff (Art. fact that a person becomes or ceases to be a member of the family of a member of the mission. where appropriate. family of a member of mission. 2. consular post (Art. except with the consent of that State which may be withdrawn at any time. or other ministry as may be agreed. 1[a-d] & 2): “1. of consular officers (Art.

3 of this Article. but he shall not be considered to be a diplomatic [consular] courier. 1 of this Article shall apply also to members of the private servants [staff] who are in the sole employ of a _________. & (b) that they are covered by the social security provisions which are in force in the SS or a third State. SS. provided that such participation is permitted by that State. The exemption in pars. 3. RS shall permit & protect freedom of communication on the part of the mission [consular post] for all official purposes. the bag shall be returned to its place of origin. wherever situated. 48): “1. 5. 5 of this Article shall also apply except that the immunities mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic [consular] bag in his charge. 1 & 2 of this Article shall not preclude voluntary participation in the social security system of the RS. By arrangement with the appropriate local authorities. the RS shall ensure freedom of movement & travel in its territory to all members of the ______. [& members of their families forming part of their households. members of the consular post (Art. The diplomatic [consular] courier shall be provided with an official document indicating his status & the number of packages constituting the diplomatic [consular] bag. 33).” [par. on condition: (a) that they are not nationals of or permanently resident in the RS. Nevertheless. 5.“Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security. 6. the diplomatic missions & other consulates [consular posts]. A diplomatic [consular] bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorized port of entry. The exemption in par. including diplomatic [or consular couriers]. unless he is a SS national. a permanent RS resident. the mission [consular post] may employ all appropriate means. 5 is not in CR] . par. 4 of this Article. 3. If this request is refused by the authorities of SS. 4. Subject to par. Except with RS’ consent he shall be neither a RS national. 2.] shall be exempt from social security provisions which may be in force in the RS. diplomatic [or consular bags] and messages in code or cipher.” Social security exemption for a diplomatic agent (Art. consular post (Art. The diplomatic [consular] bag shall be neither opened nor detained. In the performance of his functions he shall be protected by the RS. He shall be provided with an official document indicating the number of packages constituting the bag. documents or articles referred to in par. 4. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously & shall not prevent the conclusion of such agreements in the future. 7. Official correspondence means all correspondence relating to the mission [consular post] and its functions. 2. 2 of this Article does not apply shall observe the obligations which the social security provisions of the RS impose upon employers. 35): “1. The official correspondence of the mission [consular post] shall be inviolable. of the sending State. ________ who employ persons to whom the exemption in par. nor. The packages constituting the diplomatic [consular] bag shall bear visible external marks of their character & may contain only official correspondence & documents or articles intended exclusively for official use. they may request that the bag be opened in their presence by an authorized representative of SS. 27). In communicating with the Government. the mission [consular post] may install & use a wireless transmitter only with the consent of RS. However. _______ WRT services rendered by them for the SS.” Freedom of communication of the…mission (Art. if the competent authorities of RS have serious reason to believe that the bag contains something other than the correspondence. In such cases. the diplomatic [consular] post may send one of its members to take possession of the bag directly & freely from the captain of the ship or of the aircraft. its diplomatic missions [its consular posts] may designate diplomatic [consular] couriers ad hoc. He shall enjoy personal inviolability & shall not be liable to any form of arrest or detention.

Art 13 1. Order of presentation of credentials or of a true copy will be determined by date & time of the arrival of the head. The obligations of third States under pars 1. If a ______ passes through or is in the territory of a third State. be exempt from . or such ministry as may be agreed. 40). 4. naval or air attaches. for its approval. 9 & 11. 3. 31. RS is not obliged to give reasons to the SS for a refusal of agrément. the same freedom and protection as the RS is bound to accord under the present Convention. Third States shall accord to official correspondence & to other official communications in transit. 2. In the case of military." Provisions specific to each: Diplomatic Relations: Art 4 1. Art 37 1. consular officer (Art. 54) 1. Art 7. SS may freely appoint the members of the staff of the mission. They shall accord to diplomatic [consular] couriers who have been granted a visa. Subject to Arts 5. The same shall apply in the case of any member of his family [forming part of his household] enjoying such privileges & immunities who are accompanying the _______ or traveling separately to join him or to return to the SS. if they are not nationals of the RS. exemption from dues & taxes on the emoluments received due to their employment & the exemption contained in Article 33. 4. members of the consular post & members of the families forming part of their households (Art. per the practice in the RS which shall be applied in a uniform manner. 8. Family members of a DA forming part of his household shall.1. Inviolability in a Third State of a diplomatic agent (Art. Head of the mission takes up his functions in the RS either when he has presented his credentials or when he has notified his arrival & a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the RS. military contributions & billeting.1 shall not extend to acts performed outside the course of their duties. & from military obligations such as those connected with requisitioning. 2. whose presence in the territory of the third State is due to force majeure. 35). 2 & 3 shall also apply to the persons mentioned respectively in those paragraphs. Members of the administrative & technical staff. & to official communications & to diplomatic [consular] bags. except that immunity from civil & administrative jurisdiction of the RS in Art. through their territories. & to consular bags in transit. with family members forming part of their households. third States shall not hinder the transit through their territory of other members of the administrative & technical or service staff of a mission [consular post] or of members of their families [forming part of their households]. 52): RS shall exempt _______ from all personal services. They shall also enjoy the privileges in Art 36. while proceeding to take up or return to his post or when returning to the SS. the third State shall accord to him inviolability & all immunities provided for by the other Articles of the present Convention as may be required to ensure his transit or return. 3.Exemption from military service of diplomatic agents (Art. as to articles imported at the time of first installation. Private servants of members of the mission shall. enjoy the privileges & immunities in Arts 29 to 36. including messages in code or cipher. 2. SS must ensure that the agrément of RS has been given for the person it proposes to accredit as head of the mission to that State. In circumstances similar to those specified in paragraph 1 of this Article. RS may require their names to be submitted beforehand. enjoy the privileges & immunities in Arts 29 to 35. if they are not nationals of or permanently resident in the RS. 2. the same inviolability & protection as the RS is bound to accord under the present Convention. from all public service of any kind whatsoever. if a visa was necessary. which has granted him a visa if a visa was necessary. Members of the service staff who are not nationals of or permanently resident in the RS enjoy immunity as to acts performed in the course of their duties. if not nationals of or permanently resident in RS.

AVENA) 1. Tax exemption in par. 2. 1 shall not apply to such dues & taxes if. Consular officer may. (US v. With a view to facilitating the exercise of consular functions relating to SS nationals: (a) consular officers shall be free to communicate with SS nationals & to have access to them. after notification addressed to RS. In a State where SS has no diplomatic mission & is not represented by a diplomatic mission of a third State. unless RS objects. competent authorities of RS shall. A State which refuses to grant an exequatur is not obliged to give to the SS reasons for such refusal. without delay. In other respects. undertake the temporary protection of the interests of the third State & of its nationals. & without affecting his consular status. whatever the form of this authorization. 13 & 15. a SS national is arrested or committed to prison or to custody pending trial or is detained. Art 17 1. Art 8. in respect of the performance by him of any consular function. act as representative of SS to any inter-governmental organization. Art 10 1. within its consular district. other than such as represent payment for specific services rendered. head of a consular post shall not enter upon his duties until he has received an exequatur. Formalities for appointment & admission of the head of a consular post are determined by the laws. Such performance by a consular officer shall not confer any right to claim diplomatic privileges & immunities. Consular premises & residence of the career head of which SS or any person acting on its behalf is the owner or lessee shall be exempt from all national. 2. they may enjoy privileges & immunities only to the extent admitted by the RS. entrust a consular post established in a particular State with the exercise of consular functions in another State. Heads of consular posts are appointed by SS & are admitted to the exercise of their functions by RS. regional or municipal dues & taxes. Art 32 1.dues & taxes on the emoluments received due to their employment. he shall not be entitled to any greater immunity from jurisdiction than that to which a consular officer is entitled under the Convention. Art 46 SS may with the prior consent of RS. unless there is express objection by one of the States concerned. Subject to Arts. a consular officer may. Any communication addressed to the consular . Article 36. Art 12 1. after notifying States concerned. a consular post of SS may. RS must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. 2. He shall be entitled to enjoy privileges & immunities accorded to such a representative by customary IL or by int’l agreements. & at the request of a third State not represented in RS. Consular Relations Art 7 SS may. inform the consular post of SS if. 2. be authorized to perform diplomatic acts. under RS law. Art 14 As soon as the head is admitted even provisionally to exercise of his functions. 3. Upon appropriate notification to RS. SS nationals shall have the same freedom WRT communication with & access to consular officers of SS. regulations & usages of SS & of RS respectively. they are payable by the person who contracted with SS or with the person acting on its behalf. Head of a consular post is admitted to the exercise of his functions by an authorization from RS termed an exequatur. (b) if he so requests. RS shall immediately notify competent authorities of the consular district & ensure that necessary measures are taken to enable the head of a consular post to carry out the duties of his office & to have the benefit of the Convention. with RS’ consent. exercise consular functions in RS on behalf of a third State.

Art 47 1. When possible. Art 51 Death of a member of the consular post or of family member forming part of his household. except in par. having the nationality of SS. They shall also have the right to visit any SS national who is in prison. WRT services rendered for SS. is wrecked or runs aground in RS territorial sea or internal waters. Consular officers shall refrain from taking action on behalf of a national who is in prison. Art 37. Said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.post by such person shall also be forwarded by said authorities without delay. no coercive measure or penalty may be applied to him. Chapter III . Members of the private staff of consular officers & of consular employees shall. to converse & correspond with him & to arrange for his legal representation. 1. 2. if they do not carry on any other gainful occupation in the RS. The giving of this information shall be without prejudice to the operation of RS laws concerning such appointments. such authorities shall have the duty: (a) death of a SS national: inform without delay the consular post in whose district the death occurred. Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence & documents. RS: (a) permit export of the movable property of the deceased. A consular employee or a member of the service staff shall not. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. If a consular officer should decline to do so. 2. If relevant information is available to competent authorities of RS. (c) consular officers shall have the right to visit a SS national who is in prison. Art 44 1. 3. (b) not levy national. The authority requiring the evidence of a consular officer shall avoid interference with the performance of functions. custody or detention in pursuance of a judgment. 2. 3. except property acquired in RS the export of which was prohibited at the time of his death. or if an aircraft registered in SS suffers an accident on RS territory: inform without delay the consular post nearest to the scene of the occurrence. decline to give evidence. take such evidence at his residence or at the consular post or accept a statement from him in writing. Members of the consular post shall. Consular officers & consular employees & family members forming part of their households shall be exempt from all obligations under RS laws in regard to the registration of aliens & residence permits. 1 shall not apply to any consular employee who is not a permanent employee of SS or who carries on any private gainful occupation in RS or to any member of the family of any such employee. Art 46 1. be exempt from the obligations in par. Par. regional or municipal estate. subject to the proviso that said laws must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.Regime Relating to Honorary Consular Officers & Consular Posts headed by such Officers Art 58 . 1 shall be exercised in conformity with RS laws. & duties on transfers. (c) if a vessel. succession or inheritance duties. 2. (b) inform competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a SS national. on movable property the presence of which in the RS was due solely to the presence in that State of the deceased as a member of the consular post or as a member of the family of a member of the consular post. custody or detention if he expressly opposes such action. be exempt from any obligations in regard to work permits imposed by RS laws concerning the employment of foreign labour. custody or detention. The rights in par. & are entitled to decline to give evidence as expert witnesses WRT SS law.

36. US Diplomatic Staff And Consular Staff In Iran (US v. B.1. 43.3 & 55. 36 (1c) because it precluded the consular officers of the other State from visiting their detained nationals and from arranging for legal representation of their nationals. 34—39. There are 3 elements in Art. 42. Arts. 2. “without delay” is not necessarily to be interpreted as “immediately” upon arrest. If a State breaches its obligation under Art. 63—67.3. THE UN CHARTER AND THE USE OF FORCE 8 Thanks to Tif and Eps for this part. 4. Failure To Protect Embassy & Staff. with a view to ascertaining whether in each case the violation of Art. US was in breach of its obligations to 51 individuals. 45 & 53 & 55. Iran) US Embassy & staff in Iran were seized by protestors. review and reconsideration should be both of the sentence and of the conviction. 54. Exchange of consular bags between 2 consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the 2 RSs concerned. INTERNATIONAL ORGANIZATIONS8 1. US) Mexico claims breaches of the Vienna Convention on Consular Relations (WRT communication) in the treatment of 52 Mexicans convicted & sentenced to death in the US. without Iranian authorities attempting to prevent such but with later statements of support by the Ayatollah. Thus. 36 (1b). Case Concerning Avena & Other Mexican Nationals (Mexico v. as well as Art. 3. or once there are grounds to think that the person is probably a foreign national. privileges & immunities of such consular posts shall be governed by Arts. But the Court observes that there is still a duty upon the arresting authorities to give the information to an arrested person as soon as it is realized that the person is a foreign national. it also breaches Art. Failure To Notify Of Rights. 44.2 & 3 shall apply to consular posts headed by an honorary consular officer. Herein privileges & immunities shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer. The failure of the Iranian security forces to protect the Embassy or take any step to liberate the staff members amounted to a violation of Iran’s duties under the Vienna Convention on Diplomatic Relations to take all appropriate steps to protect the embassy premises and staff. 30. . On notice. 36 (1b) in not notifying the Consular Post of the other state of the detention of the latter’s nationals. it should take account of the violation of the rights set forth in the Vienna Convention and guarantee that the violation and the possible prejudice caused by the violation will be fully examined and taken into account in the review and reconsideration process. so that the commencement of interrogation before the notification would be a breach of Art. 36 committed by the competent authorities caused actual prejudice to the defendant in the process of administration of criminal justice. 36 (1a) because it precluded the consular officers of the other State to communicate with and have access to their nationals. 59—62. Lastly. 28. The facilities. 29. privileges & immunities of such consular officers shall be governed by Arts. Facilities. The remedy to make good these violations of its obligations should consist in requiring the US to permit effective review & reconsideration of these nationals’ cases by the US courts. Arts.1 shall apply to honorary consular officers. nor can it be interpreted to signify that the provision of the notice must necessarily precede any interrogation.

Article 2(3), UN Charter All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Article 2(4), 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. Article 24(1), UN Charter In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that, in carrying on its duties under this responsibility the Security Council acts on their behalf. Article 25, UN Charter The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Article 23(1), UN Charter The Security Council shall consist of fifteen members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance of the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution. Article 27(3), UN Charter Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall refrain from voting.

Notes: General Rule: The UN Charter prohibits the threat or use of force between members against their territorial integrity or political independence (Art. 2[4], UN Charter) Exception: (a) inherent right to individual or collective self defense (Art. 51, UN Charter) (b) when allowed by the Security Council (Art. 42, UN Charter) • If there’s already armed conflict, apply IHL; in general use, UN Charter • Until when can you allege self-defense – until the SC has taken cognizance of the matter (thus, self defense cannot be forever) • “armed attack” is determined in Nicaragua vs. US Caroline Case (1842) SS Caroline was set on fire by British assailing forces while moored in New York, claiming that the destruction was a public act of force, in self defense. The Caroline was used by American sympathizers of Canadian rebels against the British to provide arms and ammunitions. US forces retaliated by burning a British steamer while in US waters.

Anticipatory self defense. US Secretary of State Daniel Webster wrote to Lord Ashburton: “[I]t will be for Her Majesty’s Government to show, upon what state of facts, and what rules of national law, the destruction of the “Caroline” is to be defended. It will be for that Government to show a necessity of self defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act justified by the necessity of self defense, must be limited by that necessity, and kept clearly within it.” *This case is authority on the concept of anticipatory self-defense. Nicaragua vs. US (1986) The US allegedly planned and undertook activities directed against the new government of Nicaragua, specifically the mining of ports and waters, operations against oil installations and naval base, infringement of air space, and support for the mercenary army, the contra force. The US claimed collective self defense in behalf of El Salvador as justification for its actions. The armed attack, necessity, and proportionality requirements. The general rule prohibiting force allows for certain exceptions. First, the inherent right which any state possesses in the event of an armed attack, covers both collective and individual self defense. The parties agree that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self defense. In the case of individual self defense, the exercise of this right is subject to the state concerned having been a victim of an armed attack. Reliance on collective self defense of course does not remove the need for this. There is no rule in customary international law permitting another states to exercise the right of collective self defense on the basis of its own assessment of the situation. Request for exercise of collective self defense also needed. Thus, in customary international law, there is no rule permitting the exercise of collective self defense in the absence of a request by the State which regards itself as the victim of an armed attack. The requirement of a request is additional to the requirement that such a State should have declared itself to have been attacked. Principle of non-intervention. The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference. A prohibited interference must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. The element of coercion, which defines, and indeed forms the very essence of prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct from of military action, or in the indirect form of support to subversive or terrorist armed activities within another State. These are therefore wrongful in the light of both the principle of non-use of force, and that of intervention. Collective counter-measure in response to conduct not amounting to an armed attack. While an armed attack would give rise to an entitlement to collective self defense, a use of force of a lesser degree of gravity cannot produce any entitlement to take collective counter-measures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the victim States (El Salvador, Honduras, Costa Rica). They could not justify counter-measures taken by a third State (the US) and particularly could not justify intervention involving the use of force. *ICJ rejected the US’s self defense argument and held that the US infringed the prohibition on the use of force due to some of its activities.

Legality of the Use by a State of Nuclear Weapons (1996) The UN General Assembly requested the ICJ’s Advisory Opinion on the question: “Is the threat or use of nuclear weapons in any circumstance permitted under international law?” Prohibition is subject to exceptions. This prohibition of the use of force (Art. 2, para 4, UN Charter) is to be considered in the light of other relevant provisions of the Charter (Art. 51, on the inherent right of individual or collective self defense if an armed attack occurs; Art. 42, whereby the Security Council may take military enforcement measures in conformity with Chapter VII). Resort to self defense under Art. 51 is subject to certain restraints (the conditions of necessity and proportionality, submission to which is a rule in customary international law). The proportionality principle may thus not in itself exclude the use of nuclear weapons in self defense in all circumstances. UN Charter does not refer to a specific weapon. These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. Additional considerations. It suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self defense in accordance with the requirements of proportionality. “Signaled” intention to use force. Whether a signaled intention to use force if certain events occur is or is not a “threat” within Art. 2, para 4 of the Charter depends upon various factors. If the envisaged use of force is in itself unlawful, the stated readiness to use it would be a threat prohibited under Art. 2, para 4. If its is to be lawful, the declared readiness to use force must be a use of force that is in conformity with the Charter. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. Whether this is a “threat” depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the UN or whether it would necessarily violate the principles of necessity and proportionality. Legality of the Use of Force – Yugoslavia vs. US (1999) Yugoslavia applied for provisional measures to stop the US from using force against it. The US, along with other NATO-member countries bombed various targets in Yugoslavia. Yugoslavia based the ICJ’s jurisdiction On Art. IX of the Genocide Convention, which the US ratified but made a reservation. ICJ has no jurisdiction because US did not consent to the submission of the dispute. Genocide Convention does not prohibit reservations. Yugoslavia did not object to the US reservations to Art. IX. Said reservation had the effect of excluding that Article from the provisions of the Convention in force between the parties. In consequence, Art IX cannot found the jurisdiction of the Court to entertain a dispute between Yugoslavia and the US alleged to fall within its provisions. It cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein. Oil Platforms Case – Iran vs. US Iran instituted proceedings against the US, claiming that attacks on Iranian offshore oil production complexes by the US Navy constituted a "fundamental breach" of various provisions of the Treaty of Amity, Economic Relations and Consular Rights between the US and Iran, as well as of international law. Serving as backdrop for these attacks is the conflict between Iran and Iraq in the 1980s.

The US claimed that the acts are self defense measures, contemplated under Art. XX, para 1(d) of the Treaty, to protect US interests as the reason for the attacks. The Court points out that the US has not claimed to have been exercising collective self-defense on behalf of the neutral States engaged in shipping in the Persian Gulf. Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defense, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as "armed attacks" within the meaning of that expression in Article 51 of the UN Charter, and as understood in customary law on the use of force. The United States must also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of self-defense. Evidence failed to support the contentions of the US. *Sir said that the Court had not decided on whether unilateral use of force is valid in this instance .However, note that the Court held that US actions cannot be justified as measures necessary to protect the essential security interests of the US under the Treaty, as interpreted in the light of international law on the use of force 2. INTERNATIONAL COURT OF JUSTICE

the other party may have recourse to the Security Council. laid down by the Security Council. which may make recommendations or decide upon measures to be taken to give effect to the judgment . UN Charter The International Court of Justice shall be the principal judicial organ of the United Nations. Article 35.each UN member undertakes to comply with the decision of the ICJ in any case to which it is a party. ICJ Statute The Court shall be open to the States Parties to the present Statute. Article 96. if it deems necessary.Article 92. make recommendations or decide upon measures to be taken to give effect to the judgment. 35. UN Charter The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. if there is failure to comply. It shall function in accordance with the annexed Statute. the other party may have recourse to the Security Council.States not UN Members may become a party on conditions determined in each case by the GA. but in no case shall such conditions place the parties in a position of inequality before the Court. ICJ Statute 1. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court. • • . UN Charter Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. which may at any time be so authorized by the General Assembly. Article 93. Only States may be parties in cases before the Court. subject to special provisions contained in treaties in force International Organizations may initiate a proceeding as long as States are still the parties. Article 94. A State which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. The conditions under which the Court shall be open to other States shall. may also request advisory opinions of the Court on legal questions arising within the scope of their activities. Article 1. UN Charter All members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. subject to special provisions contained in treaties in force. upon recommendation of the Security Council States not Parties to the ICJ Statute (Art. Other organs of the United Nations and specialized agencies. Notes: • • • • The ICJ was established by the UN Charter The ICJ is the principal judicial organ of the UN The ICJ Statute forms an integral part of the UN Charter States Parties to the ICJ Statute: o UN members are ipso facto parties . which may. ICJ Statute): Court shall be open to such States under conditions laid down by the Security Council. ICJ Statute The International Court of Justice established by the Charter of the United Nations as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the provisions of the present Statute. which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. Article 34 (1).

international conventions.jurisdiction over a State is compulsory ipso facto and without special agreement. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono. whether general or particular. The States Parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement. Notes: • • How does Court acquire jurisdiction? By consent of the parties How does a State manifest its consent? (a) ad hoc basis (or voluntary appearance. in relation to any other State accepting the same obligation . 36 (2). the existence of any fact which. b. b. c. B. ICJ Statute The Court. if the parties agree thereto. ICJ Statute The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties or conventions in force. d. would constitute a breach of an international obligation. the nature or extent of the reparation to be made for the breach of an international obligation.A. JURISDICTION Article 36. in relation to any other State accepting the same obligation. judicial decisions and the teachings of the most highly qualified publicists of the various nations. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain States. or for a certain time. ICJ Statute) (or parties recognize the jurisdiction as compulsory in a separate declaration) . d. establishing rules expressly recognized by the contesting States. whose function is to decide in accordance with international law such disputes as are submitted to it. shall apply: a. ICJ Statute The decision of the Court has no binding force except between the parties and in respect of that particular case. international custom. any question of international law. the jurisdiction of the Court in all legal disputes concerning: a. as evidence of a general practice accepted as law. c. where parties refer the dispute to the Court) (b) parties recognize the jurisdiction as compulsory in a treaty (c) Optional Clause (Art. APPLICABLE LAW Article 38. the general principles of law recognized by civilized nations.period of effectivity may be either:  indefinite  for a fixed period of years . if established. as subsidiary means for the determination of rules of law. the interpretation of a treaty. subject to the provisions of Article 59. Article 59.

provided notice is given to the other party within a reasonable time (Nicaragua vs. . UN Charter The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. . which may at any time be so authorized by the General Assembly. . PROVISIONAL MEASURES . Other organs of the United Nations and specialized agencies.the nature or extent of the reparation to be made for the breach of an international obligation Dispute: disagreement on a point of law or fact. - C. 36) (a) any matter which the parties may refer to it (b) matters provided by the UN Charter. . Article 65.• •  upon notification of termination (see Nicaragua vs. US) What is the Subject Matter Jurisdiction of the ICJ? (Art. if established. US) reservations may be made:  ratione personae – reservations relating to other parties  ratione temporis – reservations relating to time  ratione materiae – reservations as to subject matter .Can you withdraw unilaterally from such declaration? Yes.any question of international law. ICJ Statute The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. would constitute a breach of an international obligation. may also request advisory opinions of the Court on legal questions arising within the scope of their activities. treaties or conventions (c) legal disputes concerning: . Article 68. to constitute a dispute.Such reservations do not limit the discretion of the Court to determine its own competence since ultimately the ICJ can decide to take cognizance of the dispute. ICJ Statute In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent which it recognizes them to be applicable. no actual breach or harm is necessary. a conflict of legal views of interests between two persons.the interpretation of a treaty.the existence of any fact which. ADVISORY OPINIONS Article 96.

the construction given by the judgment will be equally binding upon it. Therefore. The ratification of the ICJ Statute by Nicaragua gave its previous declaration under the PCIJ Statute the binding force which it previously lacked. INTERVENTION Article 62. Once made. Every State so notified has the right to intervene in the proceedings. said notification to take effect immediately. for failure to ratify the Statute of the PCIJ. the reservation of the US prevented the Court from entertaining the claims based on violations of multilateral treaties such .Article 41. Whenever the construction of a convention to which States other than those concerned in the case are parties is in question. Finally. ICJ Statute 1. Notes: • • 3rd party intervening need not be an indispensable party Requisite: a legal interest in the subject matter of the case which may be affected by the decision. ICJ Statute Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case. which could affect 3rd states which are parties to the to the treaty but are not participating in the proceedings before the Court. (much lower threshold than the requirement in ordinary civil cases) DEFAULT BY ONE PARTY Article 63. and that 3) US had made a reservation in its Optional Clause whereby disputes arising under a multilateral treaty. Cases on Jurisdiction Military and Paramilitary Activities In and Against Nicaragua . the Registrar shall notify all such States forthwith. US (1986) In this case. if it considers that circumstances so require. Moreover.Nicaragua v. any provisional measures which ought to be taken to preserve the respective rights of either party. it created a legal obligation binding upon the State which made it. 36 (5) of the ICJ Statute did not apply to it. 2) three days before the application had been filed the US had filed a notification stating that the compulsory jurisdiction shall not apply to disputes with any Central American State. the ICJ concluded that it would be impossible for a ruling not to affect third parties such as El Salvador. A declaration under the Optional Clause was a unilateral and voluntary act. ICJ held that it had jurisdiction. however. It shall be for the Court to decide upon this request. Nicaragua asserted that the Court had jurisdiction over its application because both Nicaragua and the US had accepted the compulsory jurisdiction of the Court under the Optional Clause. but if it uses this right. 2. the US declaration could only be terminated on reasonable notice. it may submit a request to the Court to be permitted to intervene. The US contended that the Court lacked jurisdiction on the following grounds: (1) that Nicaragua’s acceptance of the compulsory jurisdiction of the PCIJ was not in force in 1945. were excluded from the jurisdiction of the Court. such that Art. ICJ Statute The Court shall have the power to indicate.

Italy (1989) The application made by the US concerned the allegedly illegal requisition by Italy of two US corporations. The Court held that it had jurisdiction. the claim is admissible. 92 and 93 of the UN Charter and Art. notwithstanding the dissolution. on the other hand. the UN SC Resolutions were adopted after Libya filed its application.e. South Africa (1966) Ethiopia and Liberia instituted applications alleging contravention of duties by South Africa as Mandatory under the League of Nations Mandate for South West Africa. (Notes: The doctrine of exhaustion of local remedies is available when a state brings a case in the exercise of its diplomatic protection of its nationals/ espouses a claim of its national.Libya v. the UN Security Council Resolutions which required Libya to surrender the two accused prevailed over the provisions of the Montreal Convention. the Court rejected the claims of Ethiopia and Liberia. Libya seeks to enforce the obligations of the States under the Montreal Convention. It is not required when the state brings a case as the injured party (i. the parties differed on the question of whether the destruction of the aircraft was governed by the Montreal Convention.Ethiopia and Liberia vs. South Africa however challenged the jurisdiction of the Court by contending that since the League of Nations and PCIJ were dissolved then the rights and obligations under the Mandate relating to the administrative supervision by the League and submission to the PCIJ had become extinct. a conflict of legal views or of interest between two persons. now the ICJ by virtue of Article 37 of the ICJ Statute. Since admissibility had to be determined as at the date on which the application was filed. South-West Africa Cases . because the obligation of South Africa to submit to compulsory jurisdiction had effectively transferred to the ICJ.as the UN Charter and the OAS Charter. ELSI Case . Moreover. since Italy failed to establish that a remedy existed under municipal law which was available to the US corporations. In this case. US claimed that Italy violated the provisions of the Friendship. Court held that the individual member States of the . The Court held that it had jurisdiction. Commerce and Navigation (FCN) Treaty between the two. The Court held that it had jurisdiction. the UN Charter had entered into force in November 1945. Italy. It also submitted that the doctrine of exhaustion of local remedies was not applicable to an action brought under the said treaty due to lack of reference to such doctrine. which were enshrined in treaty law provisions. It however found that the effect of the reservation did not exclude the application of principles of international customary law. A dispute is defined as a disagreement on a point of law or fact. UK (1988) A bomb exploded on board a Pan Am plane over Lockerbie. Deciding on the merits. Although the League ceased to exist in April 1946. UK and US accused two Libyan nationals of placing the bomb aboard the plane and issued a declaration enjoining Libya to surrender the two men. the injury is caused to the state itself such as in the US Diplomatic and Consular Staff case). 37 of the ICJ Statute. its jurisdiction being based upon the Statute of the Court and the FCN Treaty. maintains that the claims should have been brought before Italian municipal courts. The Court stated the doctrine of exhaustion of local remedies was a fundamental rule of customary international law and was not rendered inapplicable simply because of the absence of words making it specifically applicable to a certain type of action. In its application. Every mandate contained a jurisdictional clause providing for a reference of disputes to the PCIJ. under which Libya had the right to investigate the alleged offense and exercise domestic jurisdiction. By the effect of Art. Scotland. Lockerbie Case . The UK maintained that the Court lacked jurisdiction because there was no dispute concerning the interpretation or application of the Convention. subsequent cognizance of the SC and the issuance of said resolutions could not remove any jurisdiction which the Court possessed at the date of filing of the application. and the three parties had ratified such Charter and become UN members. and even if such dispute existed. However. South Africa had bound itself to accept the compulsory jurisdiction of the ICJ in lieu of the PCIJ.US v.

Australia claimed lack of jurisdiction on two grounds: 1) since the case involved the responsibility of third States which had not consented to the Court’s jurisdiction.” ICJ held that it had jurisdiction. which had not consented to the jurisdiction of the Court. as provisional measures. Phosphates Case . Australia infringed the rights of the people of East Timor to self. as it could not rule upon the dispute between Australia and Portugal without having to rule upon whether Indonesia’s entry into East Timor was lawful. As to the 1st ground. Nauru instituted proceedings against Australia. which determination could not be made without the consent of Indonesia. Bosnia asked the Court to grant. The very subject matter of the decision would necessarily be a determination of whether Indonesia acquired power to conclude treaties on behalf of East Timor. the interests of New Zealand and the UK are protected by Article 59 of the ICJ Statute (decision only binds the parties). in which it maintained that by concluding an agreement and continuing negotiations with Indonesia over the delimitation of the continental shelf between Australia and East Timor. with Australia. and 2) it made a reservation in its declaration that jurisdiction does not apply to any dispute where the parties have agreed or shall agree to have “recourse to some other method of peaceful settlement. Australia (1992) Nauru was placed under UN Trusteeship. ICJ had no jurisdiction. administration and jurisdiction over Nauru on behalf of the Administering Authority. which Nauru was not prior to its independence. (Notes: doctrine applies both to advisory opinion and contentious cases. Australia contended that the Court could not rule upon the application without ruling on the rights and obligations of Indonesia. New Zealand and the UK as joint Administering Authority.determination and permanent sovereignty over their natural resources and the rights of Portugal as administering power. The present case differed from the Monetary Gold case since the interests of New Zealand and the UK did not constitute the very subject matter of the decision which the Court would give.” ICJ held that Australia’s declaration expressly provided that this limitation on jurisdiction applies to disputes between States.Portugal v. that Yugoslavia cease all acts of .League of Nations had no right of direct intervention relative to the mandatories since this was the prerogative of the League organs. it did not mean that by and upon such dissolution they acquired rights which they never did individually possess. Australia claimed that the termination of the trusteeship should be considered as “recourse to some other method of peaceful settlement. Case Concerning East Timor . case is authority for the definition of erga omnes obligation) *Sir said this case is authoritative in relation to the erga omnes obligation of sates to respect the right to self-determination. At the time it filed its application. And though States retained the rights which they possessed as members of the League of Nations despite the dissolution of the organization. Court held that the fact that New Zealand and the UK were not parties to the proceedings did not render the application inadmissible. Moreover. As to the 2 nd ground. Cases on Provisional Measures Application of the Convention on Prevention and Punishment of Genocide . maintaining that it had breached its trusteeship obligations by failing to rehabilitate parts of Nauru from which phosphates had been extracted. A finding by the Court regarding the responsibility attributed to Australia by Nauru might have implications for the legal situation of the two other States concerned but no finding in respect of that legal situation would be needed as a basis for the Court’s decision in this case.Nauru v.Bosnia v. Yugoslavia (1993) Bosnia and Herzegovina instituted proceedings against Yugoslavia accusing it of responsibility for the commission of genocide in Bosnia. Australia was to exercise full powers of legislation. The Court refrained from exercising jurisdiction. Australia (1995) Portugal commenced proceedings against Australia.

The Court denied the request for provisional measures. to afford a basis on which the jurisdiction of the Court might be established. Interpretation of a treaty provision is an essentially judicial task.Libya v. These are not merely the necessary but also the sufficient conditions for membership. Moreover. the court said that there was no abrogation because the text itself of the Special Arbitration Agreement states that the countries are to settle between themselves the status of the free zones because of an inconsistency. Lockerbie Case . 4) must be able to carry out these obligations. they are obliged to accept and carry out the decisions of the Security Council. France claims that by virtue of the Peace Treaty of Versailles. UK (1924) . Cases on Dispute Admissions Case (1948) The GA requested the Court to give an advisory opinion on whether a UN member may make its consent to admission of other States dependent on conditions not expressly provided by Article 4 of the UN Charter. The object of the power to indicate provisional measures of protection was to ensure that irreparable prejudice should not be caused to rights which might subsequently be adjudged to belong to one of the parties. 4 are exhaustive. the Court could only indicate provisional measures to be taken by the parties but not by 3rd States who would not be bound by the eventual judgment. Given its legal nature. An indication of the measures requested by Libya would be likely to impair the rights. which appear prima facie to be enjoyed by the United States by virtue of the Security Council Resolution. the Court is not concerned with the political motives. It also requested that the Court indicate that Bosnia had the right to seek and receive assistance in defending itself. Deciding on the merits. as the matters arose in the context of legal questions to be answered. The legal dispute here is essentially France’s right to withdraw unilaterally from a treaty. It was contended by some States that the Court should not give its opinion for the reason that the subject matter of the request was political. Dealing with the preliminary objection. the regime of free zones had been abrogated. Dealing with the question. An inconsistency does not automatically operate to involve the abolition of the free zones. It stated that it should not indicate such measures unless the provisions invoked by the applicant or found in the ICJ Statute appeared. the Security Council adopted Resolution 748 determining the failure of Libya to surrender the two accused as a threat to international peace and security. which may have inspired the request at hand. prima facie. 3) must accept the obligations of the charter. Free Zones Case – France vs. It reasoned that since Libya and the US are UN members. The Court took cognizance of the case despite the fact the matters addressed to it were of great economic importance. namely: a candidate must be 1) a state. Art.genocide and cease providing support for any group engaging in military or paramilitary activities against Bosnia. 4 of UN Charter set sufficient conditions for UN membership. Switzerland (1932) A series of treaties between France and Switzerland established customs-free zones. Mavrommatis Case – Greece vs. the Court ruled that the question was a purely legal one. It said that the conditions stated in Art. Such obligation prevails over the duty of the parties under the Montreal Convention. Previous to this. the Court answered in the negative. US (1998) Libya requested the Court for provisional measures to enjoin the US from the use of any force against Libya. 2) peace-loving. 5) must be willing to do so. The Court granted the request for provisional measures.

US countered that there was no dispute. Once a State has taken up a case on behalf of one of its subject. The UN Sec-Gen pointed out that the US is under obligation to permit PLO personnel to enter and remain in the US to carry out their official UN functions. the State is the sole claimant. None of the WHO’s functions has a sufficient connection with the question before it for that question to be capable of being considered as arising “within the scope of [the] activities” of the WHO. would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?”. a conflict of legal views or of interest between 2 persons. the UN Sec-Gen said that a dispute existed between the US and UN and invoked the dispute settlement procedure in Sec. it is the function of the Court to determine if there is a dispute based on the facts of the case and not on the assertions of the parties. The question in this case relates not to the effects of the use of nuclear weapons on health. before an international tribunal. however. Years later. To ascribe to the WHO the competence to address the legality of the use of nuclear weapons – even in view of their health and environment effects – would be tantamount to disregarding the principle of speciality.Italy vs. a conflict of legal views or of interests between two persons. Whether there exists an international dispute is a matter for objective determination. Dispute defined. the limits of which are a function of the common interests whose promotion those States entrust to them. a Greek national. Whatever those effects might be. in the eyes of the latter. the WHO’s competence to deal with them is not dependent on the legality of the acts that caused them. UN Headquarters Advisory Opinion (1988) PLO established an observer mission in New York upon invitation by the UN. When assurance was not given by the US. Monetary Gold Case . Opposing attitudes of the parties clearly establish the existence of a dispute. Greece took up the case. 21 of the Headquarters Agreement. since only States or members of the League of Nations may appear before it and b) whether there was a dispute even if one of the parties denies the existence of the dispute.Greece brought suit against Britain in its capacity of Mandatory of Palestine to determine the validity of certain concessions for public works in the Jordan valley granted by the Ottoman authorities to Mavrommatis. France. Also. At first. The Court defined a dispute as a disagreement on a point of law or fact. the US Government passed a law making unlawful the establishment or maintenance within the US of a PLO office. in accordance with the Headquarters Agreement. the dispute was between a private person and a State.WHO Request (1996) The WHO Dir-Gen submitted the following question to the ICJ for an advisory opinion: “In view of the health and environmental effects. Subsequently. Cases on Advisory Opinion Legality of the Use by a State of Nuclear Weapons . The ICJ refused to give an advisory opinion. Questions were raised as to a) whether there was a dispute between the Mandatory and another member of the League of Nations. which it is entitled to protect under international law. but to the legality of the use of such weapons in view of their health and environmental effects. UK and USA (1954) . International organizations are governed by the “principle of speciality” – they are invested by the States which create them with powers. PCIJ defined a dispute as a “disagreement on a point of law or fact.

Albania. who had not accepted the Courts’ jurisdiction. as a judicial body. being a Court of Justice. should not be refused. Namibia (1999) . The Court. para 1 is permissive and.UK and Italy lay claim to gold taken by Germans from Rome. cannot attribute a political character to a request which invites it to undertake an essential judicial task. As to lack of consent. The UN GA requested an advisory opinion on whether these are expenses of the Organization with the meaning of Art 17. like the PCIJ. but for the appreciation of the propriety of giving an opinion. Western Sahara Case (1975) The UN GA requested an advisory opinion on the following questions: “Was Western Sahara at the time of colonization by Spain a territory belonging to no one (terra nullius)?” and. not for the Court’s competence. has always been guided by the principle that. considerations of judicial propriety should oblige the Court to refuse an opinion. namely. It has been said in previous opinions that the reply of the Court represents its participation in the activities of the UN and. 65. however. Italy claims the gold under the allegation that Albania has committed an international wrong against Italy and must thus pay compensation. it may nonetheless decline to do so. The function of the Court is to give an opinion based on law. In general. Albania’s legal interest would not only be affected by a decision. Art. Certain Expenses in the UN (1962) The expenses involved are those relating to UN operations in Congo and the Middle East in pursuance of Security Council and General Assembly Resolutions. that power is of a discretionary character. in principle. even by giving advisory opinions. Therefore. in the circumstances of a given case. The Court has further said that only “compelling reasons” should lead it to refuse to give an advisory opinion. the ICJ. I short. the Court said that it recognized that lack of consent might constitute a ground for declining to give the opinion requested if. The ICJ agreed to give an advisory opinion. It has been argued that the question put to the Court is intertwined with political questions. The Court cannot decide such a dispute (WON Albania committed a wrong against Italy and must compensate) without the consent of Albania. The Court finds no “compelling reason” why it should not give the advisory opinion requested. once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and. but would form the very subject-matter of the decision. 65 of the Statute. depart from the essential rules guiding their activity as a Court. under it. Here. and that for this reason the Court should refuse to give an opinion. saying that the power of the Court to give advisory opinion is derived from Art. the Court can give an advisory opinion only on a legal question. Bostwana vs. para 2 of the UN Charter. cannot. consequently are not devoid of object or purpose. In any event. if yes. the interpretation of a treaty provision. an opinion given by the Court will furnish the GA with elements of a legal character relevant to the future treatment of the decolonization of Western Sahara. it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions. The Court. to what extent or degree its opinion will have an impact on the action of the GA is not for the Court to decide. The power granted is of a discretionary character. UK was claiming the gold in satisfaction of the Corfu Channel decision. But even if the question is a legal one. the consent of an interested State continues to be relevant. “What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?” The ICJ finds no compelling reason to deny the request. In exercising this discretion. refrained from making any application to the dispute.

The General Assembly does have the power. signed at Dorpat. and the annexed Declaration of the Russian Delegation regarding the autonomy of Eastern Carelia. Art. this interpretation . the case is one under Art. Neither Botswana nor Namibia is a party to the Vienna Convention on the Law of Treaties.The ICJ was requested to determine. it is doubtful if sufficient materials would be available to allow any judicial conclusion on whether Finland and Russia contracted on the terms of the Declaration as to the nature of Eastern Carelia’s autonomy. However. and if accepted. with Finland saying that it forms part of the contract and that the Treaty was signed on the terms that the Declaration was as binding as the Treaty itself. In that regard it can impose on States "an explicit obligation of compliance if for example it issues an order or command . and relevant GA and Security Council Resolutions. Under Article 24 the Security Council has "primary responsibility for the maintenance of international peace and security". . refused to take part. including in and around East Jerusalem. the Court would emphasize that Article 24 refers to a primary. to "recommend measures for the peaceful adjustment" of various situations. Palestinian Wall Case (2004) The UN GA requested the ICJ to give an advisory opinion on the legal consequences rising from the Israel’s construction of the wall in the Occupied Palestinian Territory. both of them consider Art. Russia and Finland are in dispute regarding the Declaration. Such consent. including the 4th Geneva Convention of 1949. The Court concludes that it has jurisdiction. both the GA and the SC initially interpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on a question concerning the maintenance of international peace and security while the matter remained on the Council's agenda. had never been given by Russia. striking down all arguments questioning its power to give advisory opinion. the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the island. As Russia is not a member of the League of Nations. para 1 was not violated. 17 of the Covenant (in the event of dispute between an member and non-member. Article 12. The request was made through a Special Agreement between the 2 states to submit the dispute to the ICJ. However. 10 and 11 of the Treaty of Peace between Finland and Russia. The question put to the Court is not one of abstract law. but not necessarily exclusive. *The ICJ acquired jurisdiction because the parties consented to the ICJ’s jurisdiction and acknowledged that the Anglo-German Treaty is binding on them. however. under Article 14. but concerns directly the main point of the controversy and can only be decided by an investigation into the facts underlying the case. under Chapter VII" and can. 31 of the Convention as applicable in interpreting the Anglo-German Treaty inasmuch as Art. Eastern Carelia Case (1923) The Council of the League of Nations requested the PCIJ to give an advisory opinion upon this question: “Do Arts. Russia argued that the Declaration was not by way of contract. inter alia. A request for an advisory opinion is not in itself a "recommendation" by the General Assembly "with regard to [a] dispute or situation". the latter shall be invited to accept the obligations of membership for the purpose of such dispute. on the basis of the Anglo-German Treaty of 1890 and the rules and principles of international law. It appears to the Court that that there are other cogent reasons which render it very inexpedient that the Court should attempt to deal with the present question." As regards the practice of the UN. On the contrary. but was merely declaratory of an existing situation. As Russia. "require enforcement by coercive action". 12 to 16 shall be applied with modifications). Answering the question would be substantially equivalent to deciding the dispute between the parties. constitute engagements of an international character which place Russia under an obligation to Finland as to the carrying out of the provisions contained therein?”. it has on several occasions clearly declared that it accepts no intervention by the League of Nations. to that end. . "[Tlhe only limitation which Article 14 imposes on the General Assembly is the restriction found in Article 12. considering the rules and principles of international law. competence. 31 reflects customary international law. The Court refused to give an advisory opinion.

". in the case concerning the Legality of the Threat or Use of Nuclear Weapons. paragraph 1. should not be refused. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. and. abstract or otherwise" That a party to the contentious dispute did not give its consent does not divest the Court of jurisdiction to give an advisory opinion. Even when the matter was raised as an issue of propriety rather than one of jurisdiction. It follows that no State. The Court does not consider that what is contended to be the abstract nature of the question posed to it raises an issue of jurisdiction. para 1 of the ICJ Statute. The Court is accordingly of the view that the General Assembly. in principle. is the basis of the Court's jurisdiction in contentious cases. Resolution 377 A (V) States that: "if the Security Council. of the Charter. in seeking an advisory opinion from the Court. SC failed to act on the matter. The Court's Opinion is given not to the States. the Court notes that there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security. thus the GA acted properly in requesting for the advisory opinion. including the Fourth Geneva Convention and relevant SC and GA resolutions. 65. the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures . Rather. parties to a dispute. such uncertainty will require clarification in interpretation. It does not appear to the Court that the situation in this regard changed between 20 October 2003 and 8 December 2003.has evolved subsequently. paragraph 1. or act of aggression. The Court would point out that lack of clarity in the drafting of a question does not deprive the Court of jurisdiction. The Court observes that twice the Security Council failed to act as contemplated in resolution 377 A(V). the reply of the Court." The Court did however examine the opposition of certain interested States to the request by the General Assembly in the context of issues of judicial propriety. Indeed. breach of the peace. The Court observes that the lack of consent (by Israel) to the Court's contentious jurisdiction by interested States has no bearing on the Court's jurisdiction to give an advisory opinion. it is indeed a question of a legal character”. represents its participation in the activities of the Organization. to use the Court's phrase in Western Sahara. can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. and such necessary clarifications of interpretation have frequently been given by the Court. the Court took the position that to contend that it should not deal with a question couched in abstract terms is "a mere affirmation devoid of any justification" and that "the Court may give an advisory opinion on any legal question. as it has evolved. The question submitted by the GA has thus. . did not contravene the provisions of Article 12. Court may give an opinion even on an abstract legal question. but to the organ which is entitled to request it. para 1 of the UN Charter and Art. the Court observes that this question is directed to the legal consequences arising from a given factual situation considering the rules and principles of international law. "been framed in terms of law and raise[s] problems of international law". because of lack of unanimity of the permanent members. itself an 'organ of the United Nations'. . "The consent of States. fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace. The Court's reply is only of an advisory character: as such. it is by its very nature susceptible of a reply based on law. As regards the alleged lack of clarity of the terms of the GA's request and its effect on the "legal nature" of the question referred to the Court. In the view of the Court. . it has no binding force. The Court considers that the accepted practice of the General Assembly. The request for an advisory opinion was on a “legal question” within the meaning of Art. whether a Member of the United Nations or not. Lack of clarity in drafting does not deprive the Court of Jurisdiction. indeed it is scarcely susceptible of a reply otherwise than on the basis of law. is consistent with Article 12. 96.

The Court has heard contrary positions advanced and there are no evident criteria by which it can prefer one assessment to another. written statements submitted by numerous other participants which contain information relevant to a response to the question put by the General Assembly. There is therefore in the present case no lack of information such as to constitute a compelling reason for the Court to decline to give the requested opinion. and it would take this circumstance carefully into account in any opinion it might give. while the General Assembly . what it stated in its Opinion on the Legality of the Threat or Use of Nuclear Weapons: "Certain States have observed that the General Assembly has not explained to the Court for what precise purposes it seeks the advisory opinion. The Court cannot regard this factor as a compelling reason to decline to exercise its jurisdiction. Nevertheless. as well as a voluminous dossier submitted by him to the Court. The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs. the effect of the opinion is a matter of appreciation. Beyond that. which constitutes a negotiating framework for the resolution of the conflict. they would have relevance for the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. Furthermore. however.The issue is not a bilateral matter between Israel and Palestine and it cannot deny giving an opinion on that ground. The Court does not however consider this a reason for it to decline to reply to the question asked. and in any event. The Court is conscious that the "Roadmap". At the same time. The Court observes that the question whether the evidence available to it is sufficient to give an advisory opinion must be decided in each particular instance.and the Security Council . Giving of advisory opinion will not impede resolution of the Israeli-Palestinian conflict. The Court is aware that. The circumstance that others may evaluate and interpret these facts in a subjective or political manner can be no argument for a court of law to abdicate its judicial task. a written statement updating his report. no matter what might be its conclusions in any opinion it might give. That the construction of the wall is but one aspect of the conflict will also no prevent the giving of advisory opinion. it is the Court's view that the construction of the wall must be deemed to be directly of concern to the United Nations. The Court's task would be to determine in a comprehensive manner the legal consequences of the construction of the wall." It follows that the Court cannot decline to answer the question posed based on the ground that its opinion would lack any useful purpose. the Court considers that the General Assembly has not yet determined all the possible consequences of its own resolution. The Court is indeed aware that the question of the wall is part of a greater whole. and the Court would only examine other issues to the extent that they might be necessary to its consideration of the question put to it. it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions. what influence the Court's opinion might have on those negotiations: participants in the present proceedings have expressed differing views in this regard. The Court has at its disposal the report of the Secretary-General. That the Court does not have at its disposal requisite facts and evidence to enable it to reach its conclusions will also not prevent the giving of advisory opinion. It is not clear. WON the advisory opinion would serve a useful purpose is not important since it is the requesting which has the right to decide on its usefulness. the question that the General Assembly has chosen to ask of the Court is confined to the legal consequences of the construction of the wall. The Court cannot substitute its assessment of the usefulness of the opinion requested for that of the organ that seeks such opinion. Given the powers and responsibilities of the United Nations in questions relating to international peace and security. With regard to the argument that the General Assembly has not made it clear what use it would make of an advisory opinion on the wall. .may then draw conclusions from the Court's findings. the Court would recall. The Court finds that it has before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly.

being the irreducible core of a system of rights. They are also imprescriptible. when found guilty. regardless of what each legal system defines as a “person”. since they do not arise from any legislation but are inherent in every civilization’s notion of justice. human rights are also considered inalienable. 10 . their violation will always be considered violations although liability may also be modified in a certain limited number of cases to be discussed infra. 12 Contrast this to the modifying circumstances of criminal law where a person may not only be exempt from liability. Thanks to ceejay balisacan for this portion. the right to life is undeniable. of course. This is because criminal laws are defined by legislation. cannot be subdivided so that one portion can be denied and the other granted. but those that fall within the rubric of the international legal system are those which originated from the Charter of the United Nations and the Universal Declaration of 9 Thanks to Ceejay. i. cannot be granted only to be nullified by the subsequent denial of the right against cruel and unusual punishment. 11 There is debate. For our purposes. In essence. One characterization of human rights that has spurred a lot of debates that are ongoing until now is that human rights are indivisible. Ideally. meaning they cannot be understood as having been waived or forgone by the mere failure to assert or vindicate them through the passage of time. and MJ for this part. This recognition based on absolute consensus of the international community makes human rights universal in character.e. which would in certain cases be sufficient to exempt the perpetrators from any legal consequence. Marco. these are the rights that every aspect of human civilization recognize as the barest minimum that every human being is entitled to without further qualifications. if the recognized human right to life would apply to the “unborn” or the human fetus at the time of conception. they are inextricably attached to every person from the time that person becomes a human being 11. this argument proposes that the right to a fair trial. for example. a residual core of an entire system of rights that cannot further be reduced. this notion presupposes that human rights. and therefore the existence of a crime is a function of how one legal system defines the circumstances in which the crime is considered to have arisen. Human rights abuses. THE INDIVIDUAL9 1. there may be justifications for these. could go on for a number of years in one state without any ostensible opposition but such fact cannot be used to argue that the people of that state have already surrendered or waived vindication of their rights at any time in the future. Human rights are also inviolable. In the case of human rights. therefore. but there may also be a pronouncement that no crime has been committed in the first place. who has been given all the due process requirements of an impartial trial but who. Dave. As a logical extension of the inherent character of human rights. but this does not change the fact that there has been a violation12.C. Any denial or transgression of these rights constitutes a continuing violation. An accused. would be subjected to inhumane conditions of confinement can claim a violation of human rights nevertheless. or cannot be either disposed of or taken away voluntarily or involuntarily. In essence. The problematique comes in when certain human rights coincide with those that are perceived to be “hard to attain” – for example. for example. but this is a different matter of debate altogether. Where do we find human rights in the present international legal system? The concept of human rights can be found in numerous treatises and other scholarly works. but the right to education remains a matter of financial capacity.. HUMAN RIGHTS Crash Course In Basic International Human Rights Law10 What is the notion of human rights? The concept of human rights refers to that corpus of internationally and universally-recognized rights that are inherent in every human being. we use human rights as the rights of every human being.

one can have resort to international law. or the normative character of the content of the resolution15. Otherwise. therefore. where the only human rights court established was the one in the Arab conference). it can only enact domestic legislation to implement the treaty. human rights violations may be addressed in the UN Human Rights Council. but only if all other available local remedies have been exhausted.Human Rights. Iran or the Hostages Case. or even afford more protection than what the treaty provides. Such rights. Any reservation to the convention. or religion” 14. Article 1 (3). The express purposes of the United Nations include achieving “international cooperation in solving international problems of an economic. or humanitarian character. In the absence of such international mechanisms (as the case is in Asia. however. Article 27 of the Vienna Convention on the Law of Treaties provides that “a State may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. where legal systems have evolved their own laws punishing the violation of human rights17. However. can only act on cases by investigation and recommendation. but it can never lower the standards of obligation embodied in the treaty. UN Charter. especially if the state itself is accused of the violation) – examples of these are the Inter-American Court of Human Rights established under the American Convention on Human Rights. such customary status would depend on many factors like the existence of opinio juris to the contrary. faith is reaffirmed “in fundamental human rights. . The UDHR. has made a categorical pronouncement that the content of the UDHR already embodies principles that are legally binding 16. human rights are enforced domestically. What is the legal status of the UDHR? A General Assembly Resolution of the UN may be evidentiary of the existence of a customary norm of international law that is binding on all states. should only be confined to the non-normative provisions. How are human rights enforced? Ideally. are legally binding in character. It undertakes a periodic review of all UN members’ human rights records – no country can be spared from the review – and make recommendations to the 13 14 Preambular Clause. Once a state signs a treaty. it cannot modify its treaty obligation through domestic legislation. and so its normative content is necessarily binding on all states. in the dignity and worth of every human person. if a state has ratified a human rights convention. as embodied in the UDHR. sex. the ICJ held Iran liable for the “wrongful deprivation of liberty and the imposition of physical constraint in conditions of hardship” towards the American hostages in the US Embassy. The enshrinement of human rights in these instruments was motivated by the desire to prevent the repetition of the atrocities committed during World War II. 16 In US v. or the number of states-signatories. In default of such laws. is not a legally binding instrument per se just like all other UN GA Resolutions. 15 In the 1951 ICJ Advisory Opinion on Reservations to the Convention on Genocide. the reserving party may be deemed as not having been a signatory at all. Particularly. however. The HRC. and in promoting and encouraging respect for human rights and for fundamental freedoms for all without discrimination as to race. The UN Charter’s reference to “fundamental human rights” found an authoritative expression in 1948 when the General Assembly adopted the Universal Declaration of Human Rights. On such basis. social. we can validly argue that the UDHR principles have already been elevated to the status of customary law. therefore. UN Charter. according to the Court. language. and the European Court of Human Rights under the European Convention on Human Rights. However. cultural. a compilation of 31 articles articulating what the international community believes are the most basic and fundamental rights that every human being is entitled to. the violation of which would constitute a breach of a state’s international obligation. Human rights conventions have put in place mechanisms for the redress of human rights violations that can be brought even by individuals (no need for espousal by their states. therefore. in the UN Charter. The ICJ. 17 Obligations to protect and promote human rights may be embodied in domestic legislation to give it full force and effect. in the equal rights of men and women and of nations large and small” 13. the ICJ recognized that the Convention on Genocide was approved unanimously by the UN GA.

In contrast. the nature and extent of the limitations on the exercise of human rights must be adequately proportional to the purposes for which they were imposed. liberty of movement. What is the position of international human rights law vis-à-vis international humanitarian law? Both of these bodies of international law aim at protecting the interests of every individual. human rights enforcement very largely is centered on domestic legislation and international treaty obligations. international human rights law applies at all times and at all places. . The limitations must be imposed for one or more specified legitimate purposes. For such limitations to be lawful. both human rights and humanitarian law would apply simultaneously. they should pass the three-fold test of lawfulness: (1) THE TEST OF LEGALITY. In default of both. but whether there is a clear and compelling social purpose that will be served by such act of limitation. Ultimately. If an act is properly attributable to a state under international law. international humanitarian law becomes applicable only during instances of armed conflict.General Assembly accordingly. The exercise of human rights is always presumed to be undertaken in a democratic society. and Degrading Treatment or Punishment. If the human rights abuse becomes so widespread and systematic as to constitute a threat to the peace or a breach of the peace. Aside from the UN Charter and the UDHR. however. the Convention on the Rights of the 18 Velasquez Rodriguez Case. expression. In armed conflicts. further measures need to be sanctioned by the GA. The UN can only step in to bring a case before international attention. It can also consider emergency situations of human rights violations and make the same recommendations to the GA. Using these standards. (2) THE TEST OF PURPOSE. recognize that the exercise of fundamental human rights (like speech. What are the current existing human rights instruments? MANY. Does human rights law apply during armed conflicts? YES. The test is not whether the limitations are desirable or not harmful. and protocols regarding human rights. therefore. an individual would find it hard to litigate a case of violation. therefore. assembly. The limitations must be embodied in the law so that citizens. The most popular ones are the International Covenant on Civil and Political Rights (ICCPR). (3) THE TEST OF PROPORTIONALITY. they can never be modified by contextual realities. Inhuman. International human rights instruments. then. and religion) may be subject to certain lawful limitations. Human rights will follow every human being wherever and whenever. A case can therefore be brought before the ICJ provided that the cause would be espoused by a state. the International Covenant on Economic. even of armed conflict. treaties. conventions. there are multifarious instruments. can be validly given notice of such limitations. the Convention on the Elimination of All Forms of Discrimination Against Women. Since human rights are inviolable and inherent. and Cultural Rights (ICESCR). However. who have every right to exercise their human rights to the fullest extent. Social. and provided further that such state espousing would have sufficient legal interest in the dispute. the International Convention on the Elimination of all Forms of Racial Discrimination. a human rights violation would entail the international responsibility of that state 18. given their inherent and universal nature. the Optional Protocols to these two. Is the exercise of human rights absolute in character? NO. which are the concrete codifications of the human rights embodied in the UDHR. then the Security Council can step into the picture provided all the requisites are present and all procedures are complied with as provided in Chapter 7 of the UN Charter. Inter-American Court of Human Rights (1988). the Convention Against Torture and Other Cruel. and such purposes should also be known to the public. In sum.

sex. language. In the meantime. colour. Further. and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. they argue. ICCPR and ICESCR. and adequate standard of living) was viewed as heavily contingent on the level of economic development of the state. all peoples may. The notable adherents of this view (mainly the strongman rulers of Asia like Mahathir and Lee Kuan-Yew) believe that. This universalism-cultural relativism debate owes to the fact that developed Western states maintain that civil and political rights must be afforded protection alongside economic. The legal duty to ensure enjoyment of these rights implies an 19 20 Common Article 1. religion. Common Article 1.. especially if economic development would result to benefits accruing to the entire community (Asians. Why is there a seeming dichotomy between civil and political rights on one hand and economic. birth or other status”22. notably. social and cultural rights. believe that the protection of rights is a matter relative to the culture of a particular society.1.Covenant. while the ICESCR (which prescribes as human rights such rights as education. 21 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960). such as race.2. par. ICCPR. domination. by virtue of which all peoples have the right to determine their political status and freely pursue their economic. social and cultural rights on the other? The split between the ICCPR and the ICESCR is reflective of the ongoing debates between those who believe that human rights ought to be universal and those who say that they are culturally relative. social and cultural development19. Are there common provisions to the ICCPR and ICESCR? YES. hence the refusal to derogate civil and political rights even for the sake of collective development). national or social origin.. employment. political or other opinion. The ICCPR. The recognition of the right to self-determination arose from a UN GA Resolution which equated the subjection of peoples to alien subjugation. The debate is still ongoing. par. for example. was more palatable to all concerned states because it contains absolute rules that are easily concretized. on the other hand. Cultural relativists. the single human rights document formerly prepared by the UN Commission on Human Rights were split into two after much debate. Common Article 1 of the two conventions recognize the Right to Self-Determination. and the West have made many pronouncements that the cultural relativist argument is being used merely to justify strong state measures aimed at economic development but entailing sacrifices of civil and political rights. we will tackle the two most widely-recognized instruments embodying the most comprehensive list of human rights – the ICCPR and the ICESCR.Child. What do states undertake upon being parties to the ICCPR? Each State party “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the. and such standard must be the same all over the world. property. For our purposes. . without distinction of any kind. Asian communities do not find it objectionable to sacrifice a measure of their civil and political rights in favor of economic rights . and exploitation to a denial of human rights and a violation of the UN Charter21. are communitarian in nature while Westerners are individualist in orientation. for their own ends freely dispose of their natural wealth and resources and that in no case may a people be deprived of its own means of subsistence20. ICCPR and ICESCR. 22 Article 2.

sex. 25. inhuman or degrading treatment or punishment. 11. The State party envisaging a derogation must be facing a situation of exceptional threat that jeopardizes the nation’s life. the right to be free to leave any country. provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race. 11). prosecutors. freedom from ex post facto laws and the retroactive application of heavier penalties than those that could be imposed when the crime was committed (art.obligation to take positive steps to see to it first. 21). as well as the right to have access to public service (art. 12(4)]. the right to a fair hearing in criminal and civil cases by an independent and impartial tribunal (art. 26. the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (art. the right to marry freely. to found a family and to equal rights and responsibilities of spouses as to marriage. racial. prison officials. family.15). Can states derogate from their legal obligations under the ICCPR? Are there non-derogable rights? YES.10). 27. 12(2)].12). 22).18). 23. that these laws are indeed effectively implemented in practice by all public organs and officials. and second. the right to peaceful assembly (art. (2): No derogation from articles 6. the slave-trade and servitude [art. the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation. 15). prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation (art. . prohibition of war propaganda and of advocacy of national. 8 (paragraphs 1 and 2).11). the right to equality before the law and the equal protection of the law (art. What are the rights guaranteed under ICCPR? These are the right to life (art. the right to freedom from slavery. hospitals and the like. the right to freedom from torture or cruel. including a prohibition on being subjected to medical or scientific experimentation without one’s free consent (art. police officers. thus excluding minor or even more serious disturbances that do not affect the functioning of the State’s democratic institutions or people’s lives in general. the right to recognition as a person before the law (art.19). home or correspondence or to unlawful attacks on one’s honor and reputation (art. liberty of movement and freedom to choose one’s residence [art. 17. 6. the right not to be subjected to arbitrary or unlawful interference with one’s privacy. the right of the child to special protection without discrimination. and the right of minorities to enjoy their own culture.21). 14. 15. certain legal safeguards against unlawful expulsions of aliens lawfully in the territory of a State party (art.7). 13. 23 Article 4 (1): In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed. 7.8). such as the courts (including administrative tribunals). 20. the military.16). language. 7. including one’s own [art. the right to freedom of opinion and of expression (art. 8(3)]. the right to liberty and security of person. schools. or religious hatred constituting incitement to discrimination. 16).9). the right to freedom from forced and compulsory labor [art.14). 16 and 18 may be made under this provision. 12(1)]. Article 4 of the ICCPR is known as the Derogation Clause23. religion or social origin. hostility or violence (art. 10. that domestic laws are modified when necessary in order to comply with the State’s international legal obligations. the right to freedom of thought. the right to freedom of association (art. the right to be registered upon birth and the right to a nationality (art. religion and language (art. 8(1) and (2)]. The strict conditions that govern the right of the States parties to resort to derogations from their legal obligations under said Article are: (1) the condition of a public emergency which threatens the life of the nation. the right to vote in periodic elections by universal and equal suffrage and secret ballot. the right to popular participation in public affairs. 24. including freedom from arbitrary arrest and detention (art 9. during marriage and at its dissolution (art. 18. 19. colour.13). conscience and religion (art.17).20). the right not to be arbitrarily deprived of the right to enter one’s own country [art.

6). as compared to the ordinary limitation provisions dealt with above. This condition means that the State party can only take measures derogating from its “obligations under the . The Committee has further held under the Optional Protocol to the ICCPR that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception”. it can necessarily be derogated from. It is thus necessary to consider whether the measures concerned are strictly required in order to deal with the emergency situation. para. some rights may not be derogated from because they are considered to be “inherent to the Covenant as a whole”. In this notification it must describe “the provisions from which it has derogated and . the Human Rights Committee is. 16) and. 16. 18). However. (4) the condition of strict necessity. in that the legislative measures taken must as such be strictly required by the exigencies of the emergency situation. for instance. conscience and religion (art. (7) the condition of international notification. such as. 15). and.195. the right to freedom from torture or cruel. Cassin of France. the right to freedom from slavery. In order to avail itself of the right of derogation. These rights are: the right to life (art. 82. the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation (art. E/CN. the reasons by which it was actuated”. the prohibition of ex post facto laws (art. As was explained during the drafting of article 4. (5) the condition of consistency with other international legal obligations.(2) the condition of official proclamation: the existence of a public emergency which threatens the life of the nation must be “officially proclaimed”. religion or social origin” (art. it follows from the work of the Human Rights Committee that it is not possible to conclude a contrario that. 8(1) and (2)). the purpose thereof was “to prevent States from derogating arbitrarily from their obligations under the Covenant when such an action was not warranted by events”24. lastly. such as the right to a fair trial for persons threatened with the death penalty.. This is an important condition since it is particularly in emergency situations that there is a risk of imposing discriminatory measures which have no objective and reasonable justification. language. also fulfill the conditions set out in article 4(3) of the Covenant. (3) the condition of non-derogability of certain obligations.. the right to legal personality (art. The measures of derogation may not “involve discrimination solely on the ground of race. by immediately submitting a notification of derogation to the other States parties through the Secretary-General. . Consequently. On the basis of this condition. 4(1) in fine). a State party must. one such example is the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4).4/SR. other treaties for the protection of the individual or even international humanitarian law or customary international law.. the right to freedom of thought. sex. How are the provisions of the ICCPR implemented? 24 UN doc. any individual measure taken on the basis of that legislation must likewise be strictly proportionate.. authorized to examine whether measures of derogation might be unlawful as being inconsistent with other international treaties. others may also be non-derogable because they are indispensable to the effective enjoyment of the rights that are explicitly listed in article 4(2). 11). 7). the slave-trade and servitude (art. Covenant to the extent strictly required by the exigencies of the situation”. explanation given by Mr. in principle. lastly. because a specific right is not listed in article 4(2). the condition of strict necessity compels a narrow construction of the principle of proportionality. colour. secondly. p. Article 4(2) of the Covenant enumerates some rights from which no derogation can ever be made even in the direst of situations. A second notification must be submitted “on the date on which it terminates such derogation”. inhuman or degrading treatment or punishment (art. (6) the condition of non-discrimination.

Article 40 (1) The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: (a) Within one year of the entry into force of the present Covenant for the State Parties concerned. the Committee shall confine its report to a brief statement of the facts. This shall not be the rule where application of the remedies is unreasonably prolonged. if any. or available in the matter. “while the full realization 25 ICCPR. who shall transmit copies thereof to the other States Parties. unless the State Party concerned has made a new declaration. submit a report: (i) If a solution within the terms of subparagraph (e) is reached. It shall transmit its reports. (b) Thereafter whenever the Committee so requests. Social and Cultural Rights “undertakes to take steps. Although the Covenant thus “provides for progressive realization and acknowledges the constraints due to limits of available resources”. A declaration may be withdrawn at any time by notification to the Secretary-General. the Committee on Economic. to the States Parties. Covenant will be exercised without discrimination” on certain specific grounds. it may. (3) The Secretary-General of the United Nations. . Communications received under this article shall be dealt with in accordance with the following procedure: (a) If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant. (ii) If a solution within the terms of subparagraph (e) is not reached. pending. (2) the inter-State communications procedure26. who shall transmit them to the Committee for consideration. which in itself. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation. (c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter.. no further communication by any State Party shall be received after the notification of withdrawal of the declaration has been received by the Secretary-General. and such general comments as it may consider appropriate. the report shall be communicated to the States Parties concerned. namely: first. (5) States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article. 2(1)). affecting the implementation of the present Covenant. (h) The Committee shall. individually and through international assistance and co-operation.Under the ICCPR and its Optional Protocol. the undertaking in article 2(2) “to guarantee that the rights enunciated in the . 27 Optional Protocol to the ICCPR. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations. there are three procedures for implementing the provisions of the ICCPR: (1) the reportorial procedure25.. the Committee may call upon the States Parties concerned.. either State shall have the right to refer the matter to the Committee. (2) The provisions of this article shall come into force when ten States Parties to the present Covenant have made declarations under paragraph 1 of this article. the Committee shall confine its report to a brief statement of the facts and of the solution reached. the undertaking in article 2(1) “‘to take steps’. to supply any relevant information. in conformity with the generally recognized principles of international law. or any other statement in writing clarifying the matter which should include. In every matter. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol. the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article. by written communication. with a view to achieving progressively the full realization of the rights recognized in the . (d) The Committee shall hold closed meetings when examining communications under this article. within twelve months after the date of receipt of notice under subparagraph (b). two of these are of particular importance. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. (f) In any matter referred to it. (4) The Committee shall study the reports submitted by the States Parties to the present Covenant. to the maximum of its available resources. Covenant by all appropriate means.. especially economic and technical. and (3) the individual communications procedure27. the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. 3 that “it also imposes various obligations which are of immediate effect”. In other words. In the view of the Committee. to the extent possible and pertinent. including particularly the adoption of legislative measures” (art. (2) All reports shall be submitted to the Secretary-General of the United Nations. (e) Subject to the provisions of subparagraph (c). bring the matter to the attention of that State Party. reference to domestic procedures and remedies taken. Social and Cultural Rights emphasized in General Comment No. Article 41 (1) A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. (b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication. referred to in subparagraph (b). 26 ICCPR. may. (g) The States Parties concerned. is not qualified or limited by other considerations”. shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/or in writing. Article 1: A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant. What do states undertake upon being parties to the ICESCR? Each State party to the International Covenant on Economic. referred to in subparagraph (b). transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence. after consultation with the Committee. and second. by notice given to the Committee and to the other State. Reports shall indicate the factors and difficulties.

maternity protection. Unlike the ICCPR.36). the right to social security. the right to enjoy just and favorable conditions of work. the right to take part in cultural life. 10). Such steps should be deliberate. concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant”. limitations relating to the exercise of specific rights are also contained in article 8(1)(a) and (c). the undertaking to develop detailed plans of action where compulsory primary education is not yet secured (art. literary or artistic production of which one is the author (art. 6). steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. 11). may be subjected to no restrictions other than “those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others”. Can states derogate from their legal obligations under the ICESCR? NO. How are the provisions of the ICESCR implemented? Under article 16 of the ICESCR. What are the rights guaranteed under the ICESCR? These are the right to work.of the relevant rights may be achieved progressively. the right to the highest attainable standard of physical and mental health (art. that is to say. Is the exercise of the rights under the ICESCR absolute in character? NO. otherwise. including social insurance (art. since the early arrangements for . Furthermore. “a society based on respect for the rights and freedoms of others”. and it is the UN Economic and Social Council that is formally entrusted with monitoring compliance with the terms thereof (art. 13. The ICESCR contains a general limitation in article 4. 14. where the exercise of the right to form and join trade unions. protection and assistance to the family. the right to education (art. marriage to be freely entered into. 7). the ICESCR does not contain any provision permitting derogations from the legal obligations incurred thereunder.35). including the right to gain one’s living by work freely chosen or accepted (art. it was suggested. right to an adequate standard of living. From the travaux préparatoires relating to article 4 it is clear that it was considered important to include the condition that limitations had to be compatible with a democratic society. 16(2)(a)). whereby the State may subject the enjoyment of the rights guaranteed by the Covenant “only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”. However. and to the continuous improvement of living conditions (art. 8). 12). as well as the right of trade unions to function freely. to enjoy the benefits of scientific progress and to benefit from the protection of the moral and material interests resulting from any scientific. 9). clothing and housing. the text might instead “very well serve the ends of dictatorship”. the right to form trade unions and join the trade union of one’s choice (art. including adequate food. including fair remuneration for work of equal value without distinction of any kind (art. 15). the parties undertake to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized” therein. protection and assistance to children and young persons (art.

sexual assaults. There were no effective washing facilities. The attack on the nearby town of Kozarac on 24 May 1992. During the course of the ethnic cleansing of Kozarac. During confinement. When he arrived. both male and female prisoners were subjected to severe mistreatment. wearing a variety of uniforms. which included beatings. When the town had been captured. They were also subjected to degrading psychological abuse. the Serb Democratic Party (“SDS”) conducted a bloodless take-over of the town of Prijedor with the aid of the military and police forces. THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (THE TADIC CASE) On 30 April 1992. the Committee on Economic. The establishment of these camps was part of the “Greater Serbia plan” to expel non-Serbs from the Prijedor Municipality. The Committee consists of eighteen members who serve in their individual capacity. which included two days of artillery barrage and an assault by a mechanised brigade of troops. Military posts were erected all over the city and the Serbian flag with four Cyrillic S's was flown from the City Hall. the Bosnian Serb forces proceeded to round up and drive out of the area on foot the entire non-Serb population. in any event. unsuitable for human consumption. many of them were singled out and. were shot by members of the Bosnian Serb forces. and men and their clothes quickly became filthy and skin diseases 28 Thanks to ceejay balisacan for this portion . Social and Cultural Rights as an organ of independent experts parallel to the Human Rights Committee set up under the ICCPR. the reports submitted by the States parties are considered in public meetings and in the presence of representatives of the State party concerned. in 1985. Prisoners were often forced to defecate and urinate in their rooms. There was very little in the way of lavatories. Drinking water at Omarska was often denied to the prisoners for long periods and was. and sometimes risked being beaten if they asked to use them. As the refugees were herded down the old Prijedor-Banja Luka road in the direction of Kozaruša. resulted in the killing of some 800 civilians out of a population of around 4. prisoners had to wait hours before being allowed to use them. Yugoslav People’s Army (“JNA”) soldiers. by being forced to spit on the Muslim flag. During the occupation of Kozarac. the Serb forces confined thousands of Muslim and Croat civilians in the Omarska. The actual take-over was conducted in the early hours of the morning when armed Serbs took up positions at checkpoints throughout Prijedor. explained on the radio what had happened and the SDS's intentions with regard to Prijedor municipality. Muharem Nezirević. INTERNATIONAL CRIMINAL LAW International Criminal Tribunals28 A. The discussion “is designed to achieve a constructive and mutually rewarding dialogue” so that the Committee members can get a fuller picture of the situation prevailing in the country concerned. with soldiers and snipers on the roofs of the main buildings. many more civilians were beaten. After the take-over of Prijedor and the outlying areas. declared that they had taken power and announced their decision to rename the Prijedor Municipality “Srpska opština Prijedor” (Serb Municipality of Prijedor). the Council created. thereby enabling them to make “the comments they believe most appropriate for the most effective implementation of the obligations contained in the Covenant”.examining the periodic reports were not satisfactory. once removed from the column. robbed and murdered by Bosnian Serb paramilitary and military forces.000. who before the take-over had been Vice Chairman of the Municipal Assembly and afterwards became the Chairman of the Serb Municipal Assembly. Duško Tadić participated in the collection and forced transfer of civilians. As is the case with the Human Rights Committee. Keraterm and Trnopolje camps. the Editor-in-Chief of Radio Prijedor at the time. Milomir Stakić. causing sickness. occupied all of the prominent institutions such as the radio station. sing Serbian nationalist songs or to give the Serbian three-fingered salute. the radio station was surrounded by soldiers. torture and executions. They entered buildings. medical centre and bank. 2. was summoned to the radio station in the early morning of 30 April 1992.

When can there be grave breaches of international humanitarian law under Article 2 of the Tribunal’s Statute? When the conflict is international in character and the victims were “protected persons”. or its direction of each individual operation.persecutions on political. in the context of an armed conflict. He was meted out a prison sentence of 20 years. The control required by international law may be deemed to exist when a State (or. 3. in case of an internal armed conflict breaking out on the territory of a State. Acts performed by the .were prevalent. Both the Defense and the Prosecution appealed the Trial Chamber’s Decision on different grounds. 2. convicting Duško Tadić on the basis of individual criminal responsibility (Article 7(1) of the Statute of the Tribunal) with (1) Crimes against humanity (Article 5 of the Statute . the Party to the conflict) has a role in organising. does not go so far as to include the issuing of specific orders by the State. In addition. The crowded rooms were stifling in the summer heat and often guards refused to open windows in rooms crowded to overflowing. The Defense relies on the argument that there has been a denial of the right to a fair trial and that there has been a mistake of facts. Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act. When can a conflict be considered as international in character? An armed conflict is international if it takes place between two or more States. alternatively. inhumane acts). or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. as were acute cases of diarrhoea and dysentery. in addition to financing. The extent of the requisite State control varies. or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State. What is the extent of control necessary to conclude that a group is a de facto organ of a state? International rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. choose their targets. control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). and (2) Violations of the laws or customs of war (Article 3 thereof . On 7 May 1997. training and equipping or providing operational support to that group. By contrast. it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question. or demanded the handing over of any possessions prisoners had managed to retain as the price of an open window or a plastic jar of water. Appeals Court found that the victims are protected persons. coordinating or planning the military actions of the military group. racial and/or religious grounds. and so the convictions of Tadic were increased) 1.cruel treatment). however. This requirement. which will be discussed below: ISSUES OF INTERNATIONAL LAW RAISED BY THE PROSECUTION ON APPEAL Whether or not the victims were “protected persons” under Article 2 of the Tribunal’s Statute (Trial Chamber held that some of them were not. it may become international if (i) another State intervenes in that conflict through its troops. The Prosecution raises issues of international law. the Trial Chamber rendered its judgement. it must be established whether the unlawful act had been publicly endorsed or approved ex post facto by the State at issue. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them.

the need to prove the existence of an armed conflict and a nexus between the acts in question and the armed conflict. In other words. those nationals are not “protected persons” as long as they benefit from the normal diplomatic protection of their State. In other words. In addition. is directed to the protection of civilians to the maximum extent possible. when they lose it or in any event do not enjoy it. that the act must “not be unrelated to the armed conflict”. and correlatively are not subject to the allegiance and control. namely. Indeed. It might be argued that before 6 October 1992. from among the elements which had to be satisfied before a conviction for crimes against humanity could be recorded. even if in the circumstances of the case the perpetrators and the victims were to be regarded as possessing the same nationality. Article 4 intends to look to the substance of relations. Appeals Court held that motives are an irrelevant factor to consider in dealing with crimes against humanity) 29 In the Judgment. In granting its protection. the victims did not owe allegiance to (and did not receive the diplomatic protection of) the State (the FRY) on whose behalf the Bosnian Serb armed forces had been fighting. applicable to the case at issue. Who are “protected persons”? Article 4(1) of Geneva Convention IV (protection of civilians). when a “Citizenship Act” was passed in Bosnia and Herzegovina.hence possible victims of grave breaches – as those "in the hands of a Party to the conflict or Occupying Power of which they are not nationals". while having the nationality of the Party to the conflict in whose hands they find themselves. it is sufficient for the purposes of crimes against humanity that the act occurred “in the course or duration of an armed conflict”. the act must not have been carried out for the purely personal motives of the perpetrator. Article 4 would still be applicable. at least. that is. 5. . Nationals of a neutral State or a cobelligerent State are not treated as “protected persons” unless they are deprived of or do not enjoy diplomatic protection. the position would not alter from a legal point of view. First. Even assuming that this proposition is correct. the Convention also intends to protect those civilians in occupied territory who. the Convention automatically grants them the status of “protected persons”. are refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic protection. defines “protected persons” . the Convention intends to protect civilians (in enemy territory. Article 4 of Geneva Convention IV. if interpreted in the light of its object and purpose. it has been shown that the Bosnian Serb forces acted as de facto organs of another State. In the instant case the Bosnian Serbs. The second caveat was that the act and the conflict must be related or. the perpetrator must know of the broader context in which the act occurs. The first caveat was “that the act be linked geographically as well as temporally with the armed conflict”. subject to two caveats. occupied territory or the combat zone) who do not have the nationality of the belligerent in whose hands they find themselves. However.group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts. Hence. the Trial Chamber found that. namely the nationality of the Socialist Federal Republic of Yugoslavia. as is apparent from the preparatory work. the FRY. or who are stateless persons. they were nationals of Bosnia and Herzegovina. 4. not to their legal characterisation as such. of the State in whose hands they may find themselves. arguably had the same nationality as the victims. Secondly. Whether or not crimes against humanity can be committed for purely personal motives (Trial Chamber held in the negative29. the Trial Chamber identified. Were the victims in this case protected persons? YES. Its primary purpose is to ensure the safeguards afforded by the Convention to those civilians who do not enjoy the diplomatic protection. It therefore does not make its applicability dependent on formal bonds and purely legal relations. including Tadic. the nationals of the FRY had the same nationality as the citizens of Bosnia and Herzegovina. subject to the provisions of Article 4(2). The Trial Chamber further held that the requirement that the act must “not be unrelated” to the armed conflict involved two aspects. Thus the requirements set out in Article 4 of Geneva Convention IV are met: the victims were “protected persons” as they found themselves in the hands of armed forces of a State of which they were not nationals. As to the nature of the nexus required.

which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons. Does a textual interpretation of the Tribunal’s Statute warrant the conclusion that discriminatory intent is necessary for all crimes against humanity? NO. There is nothing in the Statute. racial and religious grounds”? This specification would be illogical and superfluous.1. Whether or not all crimes against humanity require a discriminatory intent (Trial Chamber held in the affirmative. in the opinion of the Appeals Chamber. It is an elementary rule of interpretation that one should not construe a provision or part of a provision as if it were superfluous and hence pointless: the presumption is warranted that law-makers enact or agree upon rules that are well thought out and meaningful in all their elements. Consequently. The weight of authority supports the proposition that crimes against humanity can be committed for purely personal reasons. It may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern. The conclusion is therefore warranted that the relevant case-law and the spirit of international rules concerning crimes against humanity make it clear that under customary law. the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute. Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. The ordinary meaning of Article 5 makes it clear that this provision does not require all crimes against humanity to have been perpetrated with a discriminatory intent. Can crimes against humanity be committed for purely personal reasons? YES. a nexus between the specific acts allegedly committed by the accused and the armed conflict. namely “persecutions” provided for in Article 5 (h). this requirement is not laid down for all crimes against humanity. why should Article 5(h) specify that “persecutions” fall under the Tribunal’s jurisdiction if carried out “on political. However. as a substantive element of mens rea. Is mens rea relevant in crimes against humanity? ONLY TO A CERTAIN EXTENT. the Appeals Chamber does not consider it necessary to further require. or to require proof of the accused’s motives. it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related. provided it is understood that the two aforementioned conditions – that the crimes must be committed in the context of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. A logical construction of Article 5 also leads to the conclusion that. including those which. Such intent is only made necessary for one sub-category of those crimes. 2. declaring that discriminatory intent is not a requirement for crimes against humanity) 1. The interpretation of Article 5 in the light of its object and purpose bears out the above propositions. in the words of the Trial Chamber. Appeals Court reversed the decision. however. “fitted into such a pattern” – are met. “purely personal motives” do not acquire any relevance for establishing whether or not a crime against humanity has been perpetrated. while . except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned. generally speaking. Thus to convict an accused of crimes against humanity. The aim of those drafting the Statute was to make all crimes against humanity punishable. Indeed. if it were otherwise.

the extermination of “class enemies” in the Soviet Union during the 1930s (admittedly. The judgment of the Tribunal first lists down all the sources of international legal obligations of Japan towards the Allied Powers and all nations that they occupied during the war. For example. Obligations to preserve for the world the principle of equal and impartial trade with all parts of China. a discriminatory intent requirement would prevent the penalization of random and indiscriminate violence intended to spread terror among a civilian population as a crime against humanity. racial or religious grounds as specified in paragraph (h) of Article 5. the object and purpose of Article 5 would be thwarted were it to be suggested that the discriminatory grounds required are limited to the five grounds put forth by the Secretary-General in his Report and taken up (with the addition. Very long. or sexual preference. as in the case of Nazi conduct before the Second World War. In light of the humanitarian goals of the framers of the Statute. thus leaving outside this class all the possible instances of serious and widespread or systematic crimes against civilians on account only of their lacking a discriminatory intent.) as having been committed during the entire period immediately preceding. and use of opium and analogous drugs. THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (TOKYO WAR CRIMES TRIBUNAL) The trial resulted from numerous war crimes attributed to the Empire of Japan (the entire list of atrocities was cited in the decision and it is long. traffic in. United States Declaration of 1900 to 1901 Identic Notes of 1908 Nine-Power Treaty of 1922 3.fulfilling all the conditions required by the notion of such crimes. the World War II. such obligations having been found to have been breached. not in times of armed conflict) and the deportation of the urban educated of Cambodia under the Khmer Rouge between 1975-1979. B. age or infirmity. The experience of Nazi Germany demonstrated that crimes against humanity may be committed on discriminatory grounds other than those enumerated in Article 5 (h). may not have been perpetrated on political. United States Declaration of 1901 Identic Notes of 1908 Nine-Power Treaty of 1922 Covenant of the League of Nations of 1920 2. such as physical or mental disability. Obligations to suppress the manufacture. in one case. and during. provide other instances which would not fall under the ambit of crimes against humanity based on the strict enumeration of discriminatory grounds suggested by the Secretary-General in his Report. Such an interpretation of Article 5 would create significant lacunae by failing to protect victim groups not covered by the listed discriminatory grounds. Opium Convention of 1912 . the socalled "Open Door Policy". Obligations to preserve the territorial and administrative independence of China. are: 1. of the further ground of gender) in the statements made in the Security Council by three of its members. one fails to see why they should have seriously restricted the class of offences coming within the purview of “crimes against humanity”. Similarly. together with their corresponding sources. A fortiori. an occurrence that took place in times of peace. These obligations.

Identic Notes of 1908 Four-Power Treaty of 1921 Nine-Power Treaty of 1922 Hague of 1907 Pact of Paris of 1928 7. Obligations to keep inviolate the territory of neutral Powers. the relevant principles of international law enunciated in the decision of the Tribunal were those made in response to the jurisdictional challenge posed by the accused Japanese war officials. Hague IV of 1907. These jurisdictional defenses are: 1. Obligations relative to humane conduct in warfare. Hague III of 1907 9. Obligations designed to ensure the pacific settlement of international disputes. Obligation to give previous warning before commencing hostilities. or arbitration. Hague V of 1907 6. Obligations to respect the territory of Powers interested in the Pacific. Geneva Red Cross of 1929 Geneva P. The Allied Powers acting through the Supreme Commander have no authority to include in the Charter of the Tribunal and to designate as justiciable "Crimes against Peace" (Article 5(a)).W. of 1919 In addition.O. Hague of 1899 Hague of 1907 Pact of Paris of 1928 8. or mediation. Obligations to solve disputes between nations by diplomatic means.League of Nations of 1925 Opium Convention of 1931 4. Four-Power Treaty of 1921 Notes to Netherlands and Portugal of 1926 Covenant of the League of Nations of 1920 5. .

2. Aggressive war is not per se illegal and the Pact of Paris of 1928 renouncing war as an instrument of national policy does not enlarge the meaning of war crimes nor constitute war a crime; 3. War is the act of a nation for which there is no individual responsibility under international law; 4. The provisions of the Charter are "ex post facto" legislation and therefore illegal; 5. The Instrument of Surrender which provides that the Declaration of Potsdam will be given effect imposes the condition that Conventional War Crimes as recognized by international law at the date of the Declaration (26 July, 1945) would be the only crimes prosecuted; 6. Killings in the course of belligerent operations except in so far as they constitute violations of the rules of warfare or the laws and customs of war are the normal incidents of war and are not murder; 7. Several of the accused being prisoners of war are triable by court martial as provide by the Geneva Convention 1929 and not by this Tribunal. To these defenses the Tribunal quotes the same passage in the Nuremberg Tribunal decision before which the same challenges were raised by German war officials. The passage reads: “The Charter [referring to the Charter creating the Tribunal] is not an arbitrary exercise of power on the part of the victorious nations but is the expression of international law existing at the time of its creation. The question is what was the legal effect of this pact (Pact of Paris August 27, 1928)? The Nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy and expressly renounced it. After the signing of the pact any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. The principle of international law which under certain circumstances protects the representative of a state cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. The maxim 'nullum crimen sine lege' is not a limitation of sovereignty but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. The Charter specifically provides . . . 'the fact that a defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment.' This provision is in conformity with the laws of all nations . . . The true test which is found in varying degrees in the criminal law of most nations is not the existence of the order but whether moral choice was in fact possible”. The Tribunal also established the rationale for holding responsible government officials for the ill-treatment of prisoners during the war. In placing the burden of ensuring the proper treatment of prisoners upon the government (rather than merely the military officers actually engaged in war in the field) of the state holding them in detention, the Tribunal ratiocinated:

“Prisoners taken in war and civilian internees are in the power of the Government which captures them. This was not always the case. For the last two centuries, however, this position has been recognised and the customary law to this effect was formally embodied in the Hague Convention No. IV in 1907 and repeated in the Geneva Prisoner of War Convention of 1929. Responsibility for the care of prisoners of war and of civilian internees (all of who we will refer to as "prisoners") rests therefore with the Government having them in possession. This responsibility is not limited to the duty of mere maintenance but extends to the prevention of mistreatment. In particular, acts of inhumanity to prisoners which are forbidden by the customary law of nations as well as by conventions are to be prevented by the Government having responsibility for the prisoners. In the discharge of these duties to prisoners Governments must have resort to persons. Indeed the Governments responsible, in this sense, are those persons who direct and control the functions of Government. In this case and in the above regard we are concerned with the members of the Japanese Cabinet. The duty to prisoners is not a meaningless obligation cast upon a political abstraction. It is a specific duty to be performed in the first case by those persons who constitute the Government. In the multitude of duties and tasks involved in modern government there is of necessity an elaborate system of subdivision and delegation of duties. In the case of the duty of Governments to prisoners held by them in time of war those persons who constitute the Government have the principal and continuing responsibility for their prisoners, even though they delegate the duties of maintenance and protection to others. In general the responsibility for prisoners held by Japan may be stated to have rested upon: 1. Members of the Government; 2. Military or Naval Officers in command of formations having prisoners in their possession; 3. Officials in those departments which were concerned with the well-being of prisoners; 4. Officials, whether civilian, military, or naval, having direct and immediate control of prisoners. It is the duty of all those on whom responsibility rests to secure proper treatment of prisoners and to prevent their illtreatment by establishing and securing the continuous and efficient working of a system appropriate for these purposes. Such persons fail in this duty and become responsible for ill-treatment of prisoners if: 1. They fail to establish such a system. 2. If having established such a system, they fail to secure its continued and efficient working. Each of such persons has a duty to ascertain that the system is working and if he neglects to do so he is responsible. He does not discharge his duty by merely instituting an appropriate system and thereafter neglecting to learn of its application. An Army Commander or a Minister of War, for example, must be at the same pains to ensure obedience to his orders in this respect as he would in respect of other orders he has issued on matters of the first importance.

Nevertheless, such persons are not responsible if a proper system and its continuous efficient functioning be provided for and conventional war crimes be committed unless: 1. They had knowledge that such crimes were being committed, and having such knowledge they failed to take such steps as were within their power to prevent the commission of such crimes in the future, or 2. They are at fault in having railed to acquire such knowledge. If, such a person had, or should, but for negligence or supineness, have had such knowledge he is not excused for inaction if his Office required or permitted him to take any action to prevent such crimes. On the other hand it is not enough for the exculpation of a person, otherwise responsible, for him to show that he accepted assurances from others more directly associated with the control of the prisoners if having regard to the position of those others, to the frequency of reports of such crimes, or to any other circumstances he should have been put upon further enquiry as to whether those assurances were true or untrue. That crimes are notorious, numerous and widespread as to time and place are matters to be considered in imputing knowledge. A member of a Cabinet which collectively, as one of the principal organs of the Government, is responsible for the care of prisoners is not absolved from responsibility if, having knowledge of the commission of the crimes in the sense already discussed, and omitting or failing to secure the taking of measures to prevent the commission of such crimes in the future, he elects to continue as a member of the Cabinet. This is the position even though the Department of which he has the charge is not directly concerned with the care of prisoners. A Cabinet member may resign. If he has knowledge of ill-treatment of prisoners, but elects to remain in the Cabinet thereby continuing to participate in its collective responsibility for protection of prisoners he willingly assumes responsibility for any ill-treatment in the future. Army of Navy Commanders can, by order, secure proper treatment and prevent ill-treatment of prisoners. So can Ministers of War and of the Navy. if crimes are committed against prisoners under their control, of the likely occurance of which they had, or should have had knowledge in advance, they are responsible for those crimes. If, for example, it be shown that within the units under his command conventional war crimes have been committed of which he knew or should have known, a commander who takes no adequate steps to prevent the occurrence of such crimes in the future will be responsible for such future crimes. Department Officials having knowledge of ill-treatment of prisoners are not responsible by reason of their failure to resign; but if their functions included the administration of the system of protection of prisoners and if they had or should have had knowledge of crimes and did nothing effective, to the extent of their powers, to prevent their occurrence in the future that they are responsible for such future crimes”.

C. THE NUREMBERG TRIBUNAL The trial resulted from the war crimes and other atrocities imputed to German war officials during the World War II. Like the Tokyo War Crimes Tribunal, the decision of the Tribunal in Nuremberg lists down (at length) all the atrocities allegedly committed by Germany during the war, particularly in European states that they have occupied and against the Jewish people who have become

primary victims of its Aryanist campaign. For the purposes of international law, the following are some of the essential principles enunciated by the Tribunal in response to the various defenses raised by the accused German war officials. 1. FIRST DEFENSE: The humanitarian law provisions of the Hague Convention do not apply because some of the states who participated in the War were not parties to the Convention. The Tribunal rejects this proposition and categorically states that the provisions of the Hague Convention are articulations of customary international law relating to warfare and so all states are bound to them regardless of conventional obligations: It is argued that the Hague Convention does not apply in this case, because of the "general participation " clause in Article 2 of the Hague Convention of 1907. That clause provided: "The provisions contained in the regulations (Rules of Land Warfare referred to in Article 1 as well as in the present Convention do not apply except between contracting powers, and then only if all the belligerents are parties to the Convention." Several of the belligerents in the recent war were not parties to this Convention. In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt " to revise the general laws and customs of war," which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter. 2. SECOND DEFENSE: The rules of warfare ceased to be applicable by the time the occupied territories were incorporated into Germany because, by then, they are to be treated as German territory and Germany can choose to deal with such territories as though they were part of it. The Tribunal rejects this argument, saying that the doctrine of subjugation is not applicable as long as there remains a force of resistance within the occupied territories, and as long as such territories were not sufficiently shown to have been incorporated into the occupying power through evidence: “A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were part of Germany. In the view of the Tribunal it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after the 1st September, 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them.” 3. THIRD DEFENSE: There were committed no crimes against humanity during the war. The Tribunal only partly disagrees with this, because there was no sufficient evidence to establish that, before 1939, crimes against humanity have been committed.

However, after 1939, crimes against humanity have undoubtedly been committed either through (1) war crimes, which are also crimes against humanity or (2) crimes committed in the execution of an aggressive war, the latter being under the jurisdiction of the Tribunal and as such would also constitute crimes against humanity: “With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organised and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.” STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Rome Statute)30 Overview The Rome Statute established the International Criminal Court. This was done so to create a permanent tribunal which would deal with grave crimes that threaten the peace, security and well-being of the world. This Tribunal shall be complementary to national criminal jurisdictions. PART 1 ESTABLISHMENT OF THE COURT Art 1 Establishes the ICC as a permanent institution having jurisdiction over most serious crimes of national concern and shall be complementary to national criminal jurisdictions. Art 3 – The seat of the Court is in the Netherlands at Hague Art 4 – The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. PART 2 JURISDICTION, ADMISSIBILITY, AND APPLICABLE LAW Art 5 Jurisdiction The jurisdiction of the Court is limited to the following crimes
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Thanks to mj navarro for this portion

(g) Rape. (b) Causing serious bodily or mental harm to members of the group.a) b) c) d) Genocide Crimes against humanity War crimes Crime of aggression – Court shall exercise jurisdiction over this once a provision is adopted defining this crime. enforced prostitution. the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. Art 6 Genocide . (d) Imposing measures intended to prevent births within the group. (b) Extermination. (i) Enforced disappearance of persons. or other grounds that are universally recognized as impermissible under international law. (e) Forcibly transferring children of the group to another group. racial. In the case of an emerging widespread or systematic attack against a civilian population.acts committed with intent to destroy. enforced sterilization. a national. (d) Deportation or forcible transfer of population. the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack. or any other form of sexual violence of comparable gravity. in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court. national. sexual slavery. in whole or in part. ethnic. Art 7 Crimes against humanity -any of the following acts when committed as part of a (1) widespread or systematic attack directed against any civilian population (2) with knowledge of the attack (a) Murder. However. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. or serious injury to body or to mental or physical health. ethnical. cultural. (j) The crime of apartheid. racial or religious group as such: (a) Killing members of the group. religious. (k) Other inhumane acts of a similar character intentionally causing great suffering. forced pregnancy. (h) Persecution against any identifiable group or collectivity on political. (f) Torture. . gender as defined in paragraph 3. (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. (c) Enslavement.

The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. Article 11 Jurisdiction ratione temporis 1. any of the following acts: (c) In the case of an armed conflict not of an international character. "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949. wounds. any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention (b) Other serious violations of the laws and customs applicable in international armed conflict. If a State becomes a Party to this Statute after its entry into force. 2. isolated and sporadic acts of violence or other acts of a similar nature. unless that State has made a declaration under article 12. • There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with”. • There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international. Article 12 Preconditions to the exercise of jurisdiction 1. the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State. such as riots. State Party accepts the jurisdiction of ICC . namely. within the established framework of international law. namely. • In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international. Art 8 War Crimes The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. For the purpose of this Statute. any of the following acts committed against persons taking no active part in the hostilities.“Attack directed against a civilian population” in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7. detention or any other cause: (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions. serious violations of article 3 common to the four Geneva Conventions of 12 August 1949. paragraph 1. pursuant to or in furtherance of a State or organizational policy to commit such attack. of the Statute against any civilian population. paragraph 3. 2. namely.

the State of registration of that vessel or aircraft. Before exercising jurisdiction. without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. The Prosecutor shall analyse the seriousness of the information received. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 6. considers that there is a reasonable basis to proceed with an investigation. (b) The State of which the person accused of the crime is a national. 3. This . upon examination of the request and the supporting material. he or she shall inform those who provided the information. or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15 Article 14 Referral of a situation by a State Party Article 15 Prosecutor 1. and that the case appears to fall within the jurisdiction of the Court. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation. one or more of the following States shall be Parties to the Statute or shall have accepted the jurisdiction of ICC (a) The State on the territory of which the conduct in question occurred or. If the Pre-Trial Chamber. the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. it shall authorize the commencement of the investigation. 3. after the preliminary examination referred to in paragraphs 1 and 2. Art 13 Exercise of jurisdiction if: (a) referred to the Prosecutor by a State Party (b) referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations. 5. if the crime was committed on board a vessel or aircraft.2. If the acceptance of a State not a Party to this Statute -by declaration lodged with the Registrar. 2. If. accept the exercise of jurisdiction by the Court with respect to the crime in question. 4. he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation.

Except as provided in this Statute. (b) It has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned. Article 20 Ne bis in idem 1. (c) The person concerned has already been tried for conduct which is the subject of the complaint. (d) The case is not of sufficient gravity to justify further action by the Court. and a trial by the Court is not permitted under article 20. unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. the Court shall consider whether. 2. the Court shall consider. as applicable: (a) The proceedings made to shield the person concerned from criminal responsibility (b) There has been an unjustified delay in the proceedings (c) The proceedings were not or are not being conducted independently or impartially. having regard to the principles of due process recognized by international law. whether one or more of the following exist. 2. In order to determine unwillingness in a particular case. 3. Article 16 Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council. 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: . unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. in a resolution adopted under Chapter VII of the Charter of the United Nations. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. that request may be renewed by the Council under the same conditions. No person who has been tried by another court for conduct also proscribed under article 6. 3. has requested the Court to that effect. paragraph 3. A case is inadmissible where: (a) It is being investigated or prosecuted by a State which has jurisdiction over it. due to a total or substantial collapse or unavailability of its national judicial system.shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence. Article 17 Issues of admissibility 1. In order to determine inability in a particular case. no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

2. Article 25 Individual criminal responsibility . (b) In the second place.(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court. prosecuted or convicted. Elements of Crimes and its Rules of Procedure and Evidence. language. wealth. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights. Article 21 Applicable law 1. age. Article 24 Non-retroactivity ratione personae 1. provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. where appropriate. The Court may apply principles and rules of law as interpreted in its previous decisions. the national laws of States that would normally exercise jurisdiction over the crime. including the established principles of the international law of armed conflict. paragraph 3. religion or belief. birth or other status. The Court shall apply: (a) In the first place. and be without any adverse distinction founded on grounds such as gender as defined in article 7. race. national. was inconsistent with an intent to bring the person concerned to justice. colour. Article 23 Nulla poena sine lege A person convicted by the Court may be punished only in accordance with this Statute. In case of ambiguity. prosecuted or convicted shall apply. the law more favourable to the person being investigated. political or other opinion. ethnic or social origin. 2. (c) Failing that. or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which. GENERAL PRINCIPLES OF CRIMINAL LAW Article 22 Nullum crimen sine lege (No crime if there is no law punishing it) The definition of a crime shall be strictly construed and shall not be extended by analogy. as appropriate. in the circumstances. PART 3. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. applicable treaties and the principles and rules of international law. general principles of law derived by the Court from national laws of legal systems of the world including. In the event of a change in the law applicable to a given case prior to a final judgement. the definition shall be interpreted in favour of the person being investigated. this Statute.

abets or otherwise assists in its commission or its attempted commission. whether as an individual. jointly with another or through another person. regardless of whether that other person is criminally responsible. a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. a person has intent where: (a) In relation to conduct. solicits or induces the commission of such a crime which in fact occurs or is attempted. the group. a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. aids. that person means to engage in the conduct. but the crime does not occur because of circumstances independent of the person's intentions. (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step. including providing the means for its commission. Unless otherwise provided. For the purposes of this article. or (ii) Be made in the knowledge of the intention of the group to commit the crime. Article 26 Exclusion of jurisdiction over persons under eighteen Article 29 Non-applicability of statute of limitations The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of purpose involves the commission of a crime within the jurisdiction of the Court. (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. directly and publicly incites others to commit genocide. (b) Orders.In accordance with this Statute. where such activity or . a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime. 2. Article 30 Mental element 1. (c) For the purpose of facilitating the commission of such a crime. However. (e) In respect of the crime of genocide.

A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. at the time of that person's conduct: (a) The person suffers from a mental disease (b) The person is in a state of intoxication unless the person has become voluntarily intoxicated under such circumstances that the person knew. be a ground Article 33 Superior orders and prescription of law 1. (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person. whether military or civilian. (c) The person acts reasonably to defend himself or herself or another person or. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. Article 32 Mistake of fact or mistake of law 1. that person means to cause that consequence or is aware that it will occur in the ordinary course of events. and the person acts necessarily and reasonably to avoid this threat. or disregarded the risk. shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question. For the purposes of this article. Such a threat may either be: (i) Made by other persons. a person shall not be criminally responsible if.(b) In relation to a consequence. provided that the person does not intend to cause a greater harm than the one sought to be avoided. against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. 2. as a result of the intoxication. that. however. Article 31 Grounds for excluding criminal responsibility 1. or (ii) Constituted by other circumstances beyond that person's control. "Know" and "knowingly" shall be construed accordingly. A mistake of law may. In addition to other grounds for excluding criminal responsibility provided for in this Statute. . in the case of war crimes. 3. "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior. property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission.

Geneva. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. 2. each Party to the conflict shall be bound to apply. or any other cause. in particular humiliating and degrading treatment. wounds. sex. the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person. mutilation. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. 31 Thanks to marco lainez for this portion . colour. Although one of the Powers in conflict may not be a party to the present Convention. 2. the following provisions: (1) Persons taking no active part in the hostilities. 12 August 1949. and (c) The order was not manifestly unlawful. cruel treatment and torture. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. THE GENEVA CONVENTIONS31 The First Convention Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. For the purposes of this article. how to treat them] Art. even if the said occupation meets with no armed resistance. or any other similar criteria. religion or faith. the Powers who are parties thereto shall remain bound by it in their mutual relations. shall in all circumstances be treated humanely. without any adverse distinction founded on race. as a minimum. (c) outrages upon personal dignity. They shall furthermore be bound by the Convention in relation to the said Power. even if the state of war is not recognized by one of them. 3.(b) The person did not know that the order was unlawful. orders to commit genocide or crimes against humanity are manifestly unlawful. if the latter accepts and applies the provisions thereof. detention. International Humanitarian Law A. To this end. the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. birth or wealth. in particular murder of all kinds. In addition to the provisions which shall be implemented in peacetime. WHAT IS REQUIRED [who are the protected people. (b) taking of hostages. WHEN DOES IT APPLY Art.

Art. the present Convention shall apply until their final repatriation. CHAPTER II. in particular. Only urgent medical reasons will authorize priority in the order of treatment to be administered. 5. The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be. such as the International Committee of the Red Cross. as well as to dead persons found. Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded and sick. Art. shall be strictly prohibited. race. all or part of the other provisions of the present Convention. political opinions. 4. without any adverse distinction founded on sex. . if such there be. may offer its services to the Parties to the conflict. as well as members of the medical personnel and chaplains. or any other similar criteria. (2) The wounded and sick shall be collected and cared for. 12. The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may. subjected to torture or to biological experiments. who are wounded or sick. WOUNDED AND SICK Art. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. they shall not be murdered or exterminated. may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. Any attempts upon their lives. and by the special agreements referred to in the foregoing Article. shall be respected and protected in all circumstances. received or interned in their territory. Art.(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court. as well as members of militias or volunteer corps forming part of such armed forces. nationality. medical personnel and chaplains. subject to the consent of the Parties to the conflict concerned. undertake for the protection of wounded and sick. 9. 7. as far as military considerations permit. nor shall conditions exposing them to contagion or infection be created. The present Convention shall apply to the wounded and sick belonging to the following categories: (1) Members of the armed forces of a Party to the conflict. Members of the armed forces and other persons mentioned in the following Article. and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict. affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Wounded and sick. Art. An impartial humanitarian body. For the protected persons who have fallen into the hands of the enemy. Art. they shall not wilfully be left without medical assistance and care. leave with them a part of its medical personnel and material to assist in their care. religion. Women shall be treated with all consideration due to their sex. by means of special agreements. 13. and for their relief. The Parties to the conflict should further endeavour to bring into force. or violence to their persons.

(d) first name or names. (g) date and place of capture or death. These records should if possible include: (a) designation of the Power on which he depends. including those of organized resistance movements. (6) Inhabitants of a non-occupied territory. even if this territory is occupied. exchange and transport of the wounded left on the battlefield. Art. in respect of each wounded. supply contractors. Whenever circumstances permit. . or local arrangements made. Art. including such organized resistance movements. regimental. and the provisions of international law concerning prisoners of war shall apply to them. At all times. to permit the removal. (5) Members of crews. who do not benefit by more favourable treatment under any other provisions in international law. sick or dead person of the adverse Party falling into their hands. of the merchant marine and the crews of civil aircraft of the Parties to the conflict. (e) date of birth. such as civil members of military aircraft crews. 14. without delay. (b) army. provided that such militias or volunteer corps. any particulars which may assist in his identification.(2) Members of other militias and members of other volunteer corps. (b) that of having a fixed distinctive sign recognizable at a distance. (c) surname. provided that they have received authorization from the armed forces which they accompany. an armistice or a suspension of fire shall be arranged. fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates. 15. Likewise. belonging to a Party to the conflict and operating in or outside their own territory. local arrangements may be concluded between Parties to the conflict for the removal or exchange of wounded and sick from a besieged or encircled area. who on the approach of the enemy. (d) that of conducting their operations in accordance with the laws and customs of war. to ensure their adequate care. provided they carry arms openly and respect the laws and customs of war. pilots and apprentices. war correspondents. (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. without having had time to form themselves into regular armed units. (4) Persons who accompany the armed forces without actually being members thereof. take all possible measures to search for and collect the wounded and sick. including masters. DUTY TO RECORD THE WOUNDED/SICK/DEAD Art. members of labour units or of services responsible for the welfare of the armed forces. 16. (h) particulars concerning wounds or illness. to protect them against pillage and ill-treatment. and particularly after an engagement. (c) that of carrying arms openly. Parties to the conflict shall record as soon as possible. personal or serial number. the wounded and sick of a belligerent who fall into enemy hands shall be prisoners of war. or cause of death. (f) any other particulars shown on his identity card or disc. and for the passage of medical and religious personnel and equipment on their way to that area. and to search for the dead and prevent their being despoiled. Subject to the provisions of Article 12. spontaneously take up arms to resist the invading forces. Parties to the conflict shall.

which shall transmit this information to the Power on which these persons depend through the intermediary of the Protecting Power and of the Central Prisoners of War Agency. RIGHT TO BURIAL Art. even in invaded or occupied areas. and the possible transportation to the home country. Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. whatever the site of the graves. with a view to confirming death. granting persons who have responded to this appeal the necessary protection and facilities. they shall organize at the commencement of hostilities an Official Graves Registration Service. Parties to the conflict shall ensure that burial or cremation of the dead. the wounded and sick. to allow subsequent exhumations and to ensure the identification of bodies. THOSE WHO AID THE WOUNDED ARE NOT TO BE HARMED Art. Should the adverse Party take or retake control of the area. the circumstances and reasons for cremation shall be stated in detail in the death certificate or on the authenticated list of the dead. but shall at all times be respected and protected by the Parties to the conflict. For this purpose. shall be sent in sealed packets. One half of the double identity disc. he shall likewise grant these persons the same protection and the same facilities. accompanied by statements giving all particulars necessary for the identification of the deceased owners. They shall further ensure that the dead are honourably interred. their personnel . which are found on the dead. Chapter III. which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country. Medical Units and Establishments Art. The provisions of the present Article do not relieve the occupying Power of its obligation to give both physical and moral care to the wounded and sick. The military authorities shall permit the inhabitants and relief societies. of the bodies. these Services shall exchange. through the Information Bureau mentioned in the second paragraph of Article 16. Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked. together with particulars of the dead interred therein. As soon as circumstances permit.As soon as possible the above mentioned information shall be forwarded to the Information Bureau described in Article 122 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. spontaneously to collect and care for wounded or sick of whatever nationality. certificates of death or duly authenticated lists of the dead. that their graves are respected. last wills or other documents of importance to the next of kin. 19. grouped if possible according to the nationality of the deceased. lists showing the exact location and markings of the graves. or the identity disc itself if it is a single disc. establishing identity and enabling a report to be made. Should they fall into the hands of the adverse Party. They shall likewise collect and forward through the same bureau one half of a double identity disc. Parties to the conflict shall prepare and forward to each other through the same bureau. if possible by a medical examination. No one may ever be molested or convicted for having nursed the wounded or sick. if possible according to the rites of the religion to which they belonged. money and in general all articles of an intrinsic or sentimental value. 18. and in particular abstain from offering them violence. carried out individually as far as circumstances permit. should remain on the body. as well as by a complete list of the contents of the parcel. 17. together with unidentified articles. and at latest at the end of hostilities. properly maintained and marked so that they may always be found. The military authorities may appeal to the charity of the inhabitants voluntarily to collect and care for. under their direction. is preceded by a careful examination. These articles. The civilian population shall respect these wounded and sick. These provisions shall likewise apply to the ashes. In case of cremation.

Medical personnel exclusively engaged in the search for. CAPTURED HEALTH WORKER/HELPERS Art. (3) That small arms and ammunition taken from the wounded and sick and not yet handed to the proper service. Within the framework of the military laws and regulations of the Detaining Power. as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in such establishments and units. (2) That in the absence of armed orderlies. however. Personnel Art. their medical and spiritual duties on behalf of prisoners of war. (b) In each camp the senior medical officer of the highest rank shall be responsible to the military authorities of the camp for the professional activity of the retained medical personnel. (c) Although retained personnel in a camp shall be subject to its internal discipline. Personnel designated in Articles 24 and 26 who fall into the hands of the adverse Party. the spiritual needs and the number of prisoners of war require. shall be retained only in so far as the state of health. transport or treatment of the wounded or sick. they shall not. including those of the societies designated in Article 26. Nevertheless they shall at least benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. For this purpose. Chapter IV. They shall further enjoy the following facilities for carrying out their medical or spiritual duties: (a) They shall be authorized to visit periodically the prisoners of war in labour units or hospitals outside the camp. and shall settle the procedure of such relief. shall be respected and protected in all circumstances. 28. or the collection. 24. staff exclusively engaged in the administration of medical units and establishments. and that they use the arms in their own defence. The following conditions shall not be considered as depriving a medical unit or establishment of the protection guaranteed by Article 19: (1) That the personnel of the unit or establishment are armed. in accordance with their professional ethics. without forming an integral part thereof. and the chaplains. . and under the authority of its competent service. (4) That personnel and material of the veterinary service are found in the unit or establishment. During hostilities the Parties to the conflict shall make arrangements for relieving where possible retained personnel. shall have direct access to the military and medical authorities of the camp who shall grant them the facilities they may require for correspondence relating to these questions. as well as chaplains attached to the armed forces.shall be free to pursue their duties. or in that of the wounded and sick in their charge. be required to perform any work outside their medical or religious duties. the unit or establishment is protected by a picket or by sentries or by an escort. Personnel thus retained shall not be deemed prisoners of war. The Detaining Power shall put at their disposal the means of transport required. In all questions arising out of their duties. or in the prevention of disease. this medical officer. from the outbreak of hostilities. the Parties to the conflict shall agree regarding the corresponding seniority of the ranks of their medical personnel. 22. (5) That the humanitarian activities of medical units and establishments or of their personnel extend to the care of civilian wounded or sick. MEDICAL UNITS GONE BAD Art. they shall continue to carry out. are found in the unit or establishment. preferably those of the armed forces to which they themselves belong.

Medical aircraft. the commanders of forces in the field may make use of them. Chapter VI. 35. They shall be provided with any other markings or means of identification that may be agreed upon between the belligerents upon the outbreak or during the course of hostilities. Parties to the conflict may determine by special agreement the percentage of personnel to be retained. shall not be attacked. they shall not be deemed prisoners of war. while flying at heights. material and stores of fixed medical establishments of the armed forces shall remain subject to the laws of war. The selection of personnel for return under Article 30 shall be made irrespective of any consideration of race. Medical Transports Art. in proportion to the number of prisoners and the distribution of the said personnel in the camps. The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law. The material of mobile medical units of the armed forces which fall into the hands of the enemy. in case of urgent military necessity. shall be reserved for the care of wounded and sick. but shall be respected by the belligerents. upper and lateral surfaces. clearly marked. Art. They shall bear. Medical aircraft shall obey every summons to land. They shall continue to fulfil their duties under the orders of the adverse Party and shall preferably be engaged in the care of the wounded and sick of the Party to the conflict to which they themselves belong. aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment. provided that they make previous arrangements for the welfare of the wounded and sick who are nursed in them. the aircraft with its occupants may continue its flight after examination. Buildings and Material Art. valuables and instruments belonging to them. 33. Personnel whose retention is not indispensable by virtue of the provisions of Article 28 shall be returned to the Party to the conflict to whom they belong. the distinctive emblem prescribed in Article 38. In the event of a landing thus imposed. as soon as a road is open for their return and military requirements permit. Transports of wounded and sick or of medical equipment shall be respected and protected in the same way as mobile medical units. personal belongings. Should such transports or vehicles fall into the hands of the adverse Party. if any. but may not be diverted from their purpose as long as they are required for the care of wounded and sick. Art. Unless agreed otherwise. As from the outbreak of hostilities. 31. flights over enemy or enemy-occupied territory are prohibited. they shall be subject to the laws of war. Nevertheless. Art. The material and stores defined in the present Article shall not be intentionally destroyed. together with their national colours on their lower. 36. 30. times and on routes specifically agreed upon between the belligerents concerned. On their departure. Pending their return. . on condition that the Party to the conflict who captures them shall in all cases ensure the care of the wounded and sick they contain. they shall take with them the effects. The buildings. that is to say.None of the preceding provisions shall relieve the Detaining Power of the obligations imposed upon it with regard to the medical and spiritual welfare of the prisoners of war. religion or political opinion. but preferably according to the chronological order of their capture and their state of health. Nevertheless they shall at least benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. Chapter V.

The identity card shall be uniform throughout the same armed forces and. as well as the crew of the aircraft shall be prisoners of war. Repression of Abuses and Infractions DUTY TO LEGISLATE Art. is retained as the emblem and distinctive sign of the Medical Service of armed forces. or ordering to be committed. any of the grave breaches of the present Convention defined in the following Article. they shall be entitled to receive duplicates of the cards and to have the insignia replaced. 46. in particular to the armed fighting forces. Chapter VIII. before its own courts. in the case of countries which already use as emblem. so that the principles thereof may become known to the entire population. regardless of their nationality. Nevertheless. in time of peace as in time of war. Execution of the Convention Art. 47. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing. sick. provided such High Contracting Party has made out a prima facie case. shall also carry a special identity card bearing the distinctive emblem. if possible. of a similar type in the armed forces of the High Contracting Parties. to disseminate the text of the present Convention as widely as possible in their respective countries. It may also. and. and in accordance with the provisions of its own legislation. The personnel designated in Article 24 and in Articles 26 and 27 shall wear. hand such persons over for trial to another High Contracting Party concerned. shall mention at least the surname and first names. The High Contracting Parties undertake. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. by way of example. This card shall be water-resistant and of such size that it can be carried in the pocket. such grave breaches. and shall bring such persons. Art.In the event of an involuntary landing in enemy or enemy-occupied territory. the medical personnel and the chaplains. 38. those emblems are also recognized by the terms of the present Convention. and shall state in what capacity he is entitled to the protection of the present Convention. the heraldic emblem of the red cross on a white ground. the red crescent or the red lion and sun on a white ground. in place of the red cross. a water-resistant armlet bearing the distinctive emblem. 49. at the outbreak of hostilities. the date of birth. in particular. In no circumstances may the said personnel be deprived of their insignia or identity cards nor of the right to wear the armlet. personnel. Identity cards should be made out. if possible. As a compliment to Switzerland. issued and stamped by the military authority. one copy being kept by the home country. the wounded and sick. It shall be worded in the national language. or to have ordered to be committed. Such personnel. affixed to the left arm. Chapter VII. to include the study thereof in their programmes of military and. It shall be embossed with the stamp of the military authority. The Parties to the conflict may be guided by the model which is annexed. The Distinctive Emblem Art. the rank and the service number of the bearer. Art. civil instruction. In case of loss. in addition to wearing the identity disc mentioned in Article 16. at least in duplicate. if it prefers. . Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. 40. The medical personnel shall be treated according to Article 24 and the Articles following. The card shall bear the photograph of the owner and also either his signature or his finger-prints or both. of the model they are using. to the present Convention. Reprisals against the wounded. as far as possible. Chapter IX. buildings or equipment protected by the Convention are prohibited. formed by reversing the Federal colours. They shall inform each other.

Art 3. The prohibition laid down in the first paragraph of the present Article shall also apply. if the latter accepts and applies the provisions thereof. In addition to the provisions which shall be implemented in peacetime. or for a purpose contrary to commercial honesty. the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. torture or inhuman treatment. of the arms of the Swiss Confederation. By reason of the tribute paid to Switzerland by the adoption of the reversed Federal colours. and extensive destruction and appropriation of property. and of the confusion which may arise between the arms of Switzerland and the distinctive emblem of the Convention. wilfully causing great suffering or serious injury to body or health. Nevertheless. They shall furthermore be bound by the Convention in relation to the said Power. societies. to the emblems and marks mentioned in the second paragraph of Article 38. societies or firms. and irrespective of the date of its adoption. signs or marks designated in the first paragraph. even if the said occupation meets with no armed resistance. other than those entitled thereto under the present Convention. of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. 50. firms or companies either public or private. if committed against persons or property protected by the Convention: wilful killing. each Party to the conflict shall be bound to apply. Art. Art. even if the state of war is not recognized by one of them. The Second Convention Convention (II) for the Amelioration of the Condition of Wounded. as a minimum. not justified by military necessity and carried out unlawfully and wantonly. whether as trademarks or commercial marks.In all circumstances. Grave breaches to which the preceding Article relates shall be those involving any of the following acts. the use by private individuals. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. whatever the object of such use. may grant to prior users of the emblems. the Powers who are parties thereto shall remain bound by it in their mutual relations. Sick and Shipwrecked Members of Armed Forces at Sea. in time of war. or in circumstances capable of wounding Swiss national sentiment. such High Contracting Parties as were not party to the Geneva Convention of 27 July 1929. shall be prohibited at all times. including biological experiments. the accused persons shall benefit by safeguards of proper trial and defence. The use by individuals. Although one of the Powers in conflict may not be a party to the present Convention. of the emblem or the designation " Red Cross " or " Geneva Cross " or any sign or designation constituting an imitation thereof. to confer the protection of the Convention. or of marks constituting an imitation thereof. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. Art 2. which shall not be less favourable than those provided by Article 105 and those following. Geneva. 12 August 1949. a time limit not to exceed three years from the coming into force of the present Convention to discontinue such use provided that the said use shall not be such as would appear. without effect on any rights acquired through prior use. shall be prohibited at all times. the following provisions: . or as parts of such marks. designations. 53.

as well as to dead persons found. mutilation. detention. without any adverse distinction founded on sex. may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. or violence to their persons. shall be strictly prohibited. Sick and Shipwrecked Art 12. or any other cause. they shall not be murdered or exterminated. birth or wealth. cruel treatment and torture. sick or shipwrecked. The Parties to the conflict should further endeavour to bring into force. sick and shipwrecked shall be collected and cared for. Forces put ashore shall immediately become subject to the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12. nationality. In case of hostilities between land and naval forces of Parties to the conflict. without any adverse distinction founded on race. race. . sex. affording all the judicial guarantees which are recognized as indispensable by civilized peoples. sick and shipwrecked. all or part of the other provisions of the present Convention. humiliating and degrading treatment. the provisions of the present Convention shall apply only to forces on board ship. Art 7. in particular. shall be respected and protected in all circumstances. religion or faith. (2) The wounded. Such persons shall be treated humanely and cared for by the Parties to the conflict in whose power they may be. and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict received or interned in their territory. Members of the armed forces and other persons mentioned in the following Article. (c) outrages upon personal dignity. such as the International Committee of the Red Cross. religion. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. An impartial humanitarian body. or any other similar criteria. if such there be. and by the special agreements referred to in the foregoing Article. in particular murder of all kinds. Art 4. 1949. Chapter II. it being understood that the term "shipwreck" means shipwreck from any cause and includes forced landings at sea by or from aircraft. by means of special agreements. (b) taking of hostages. wounds. To this end. nor shall conditions exposing them to contagion or infection be created. (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court. Wounded. Wounded. shall in all circumstances be treated humanely. Any attempts upon their lives. Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded. in particular. Art 5. may offer its services to the Parties to the conflict. sick and shipwrecked persons. they shall not wilfully be left without medical assistance and care. the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person. subjected to torture or to biological experiments. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. colour. political opinions. who are at sea and who are wounded. or any other similar criteria. as well as members of the medical personnel and chaplains.(1) Persons taking no active part in the hostilities.

as well as members of militias or volunteer corps forming part of such armed forces. . In the last case. Art 16. spontaneously take up arms to resist the invading forces. (c) that of carrying arms openly. Subject to the provisions of Article 12. If wounded. The captor may decide. according to circumstances. including masters. be so guarded by the neutral Power. to a neutral port or even to a port in enemy territory. and hospital ships belonging to relief societies or to private individuals. provided that such militias or volunteer corps. and the provisions of international law concerning prisoners of war shall apply to them. The present Convention shall apply to the wounded. provided they carry arms openly and respect the laws and customs of war. who do not benefit by more favourable treatment under any other provisions of international law. war correspondents. that they can take no further part in operations of war. pilots and apprentices. yachts and other craft shall be surrendered. supply contractors. The costs of hospital accommodation and internment shall be borne by the Power on whom the wounded. sick and shipwrecked at sea belonging to the following categories: (1) Members of the armed forces of a Party to the conflict. shall. whether it is expedient to hold them. failing arrangements to the contrary between the neutral and the belligerent Powers. without having had time to form themselves into regular armed units. where so required by international law. (d) that of conducting their operations in accordance with the laws and customs of war. whatever their nationality. (4) Persons who accompany the armed forces without actually being members thereof. provided that they have received authorization from the armed forces which they accompany. (5) Members of crews. Art 13. that the said persons cannot again take part in operations of war. fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates. sick and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war. All warships of a belligerent Party shall have the right to demand that the wounded. on the approach of the enemy. sick or shipwrecked persons are taken on board a neutral warship or a neutral military aircraft. sick or shipwrecked persons who are landed in neutral ports with the consent of the local authorities. sick or shipwrecked persons depend. sick or shipwrecked on board military hospital ships. provided that the wounded and sick are in a fit state to be moved and that the warship can provide adequate facilities for necessary medical treatment. including such organized resistance movements. (b) that of having a fixed distinctive sign recognizable at a distance. the wounded. even if this territory is occupied. members of labour units or of services responsible for the welfare of the armed forces. Women shall be treated with all consideration due to their sex. (2) Members of other militias and members of other volunteer corps. as well as merchant vessels. Wounded. (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. of the merchant marine and the crews of civil aircraft of the Parties to the conflict. prisoners of war thus returned to their home country may not serve for the duration of the war.Only urgent medical reasons will authorize priority in the order of treatment to be administered. Art 17. or to convey them to a port in the captor's own country. (6) Inhabitants of a non-occupied territory who. such as civilian members of military aircraft crews. OBLIGATIONS OF THE RESCUED Art 14. belonging to a Party to the conflict and operating in or outside their own territory. it shall be ensured. Art 15. where so required by international law. including those of organized resistance movements.

1949 shall be applicable. These records should if possible include: (a) designation of the Power on which he depends. if possible by a medical examination. as well as by a complete list of the contents of the parcel. of the bodies. to protect them against pillage and ill-treatment. wounded and sick. They may. Art 21. certificates of death or duly authenticated lists of the dead. which shall transmit this information to the Power on which these persons depend through the intermediary of the Protecting Power and of the Central Prisoners of War Agency. The Parties to the conflict may appeal to the charity of commanders of neutral merchant vessels. be captured on account of any such transport. These articles. sick or dead person of the adverse Party falling into their hands. 1949. or the identity disc itself if it is a single disc. If dead persons are landed. sick or shipwrecked persons. in the absence of any promise to the contrary. to ensure their adequate care. (f) any other particulars shown on his identity card or disc. (d) first name or names. (h) particulars concerning wounds or illness. DUTY TO NOTIFY Art 19. Parties to the conflict shall. they shall remain liable to capture for any violations of neutrality they may have committed. in respect of each shipwrecked.Art 18. regimental. but. without delay. in no case. Vessels of any kind responding to this appeal. (b) army. establishing identity and enabling a report to be made. one half of the disc should remain on the body. Art 20. which are found on the dead. any particulars which may assist in his identification. money and in general all articles of an intrinsic or sentimental value. (c) surname. The Parties to the conflict shall record as soon as possible. yachts or other craft. the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12. last wills or other documents of importance to the next of kin. They shall likewise collect and forward through the same bureau one half of the double identity disc. Parties to the conflict shall prepare and forward to each other through the same bureau. the Parties to the conflict shall conclude local arrangements for the removal of the wounded and sick by sea from a besieged or encircled area and for the passage of medical and religious personnel and equipment on their way to that area. wounded. shall be sent in sealed packets. together with unidentified articles. and to search for the dead and prevent their being despoiled. sick or shipwrecked persons. . with a view to confirming death. Where a double identity disc is used. As soon as possible the above-mentioned information shall be forwarded to the information bureau described in Article 122 of the Geneva Convention relative to the Treatment of Prisoners of War of August 12. personal or serial number. shall enjoy special protection and facilities to carry out such assistance. is preceded by a careful examination. accompanied by statements giving all particulars necessary for the identification of the deceased owners. take all possible measures to search for and collect the shipwrecked. (e) date of birth. or cause of death. (g) date and place of capture or death. to take on board and care for wounded. and those having of their own accord collected wounded. Whenever circumstances permit. After each engagement. carried out individually as far as circumstances permit. Parties to the conflict shall ensure that burial at sea of the dead. and to collect the dead.

Art 28. The characteristics which must appear in the notification shall include registered gross tonnage. Should fighting occur on board a warship. stating that the vessels have been under their control while fitting out and on departure. Merchant vessels which have been transformed into hospital ships cannot be put to any other use throughout the duration of hostilities. Art 33. Sick-bays and their equipment shall remain subject to the laws of warfare. Any hospital ship in a port which falls into the hands of the enemy shall be authorized to leave the said port. may in no circumstances be attacked or captured. Art 24. Art 30. (4) The fact that the humanitarian activities of hospital ships and sick-bays of vessels or of the crews extend to the care of wounded. ships built or equipped by the Powers specially and solely with a view to assisting the wounded. they will act at their own risk. by officially recognized relief societies or by private persons shall have the same protection as military hospital ships and shall be exempt from capture. Military hospital ships. sick and shipwrecked.Chapter III. Art 35. (3) The discovery on board hospital ships or in sick-bays of portable arms and ammunition taken from the wounded. over and above the normal requirements. 1949 shall be protected from bombardment or attack from the sea. During and after an engagement. Nevertheless. but may not be diverted from their purpose so long as they are required for the wounded and sick. Art 23. to treating them and to transporting them. sick and shipwrecked without distinction of nationality. the sick-bays shall be respected and spared as far as possible. apply them to other purposes in case of urgent military necessity. Establishments ashore entitled to the protection of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12. for their own defence or that of the sick and wounded. The High Contracting Parties undertake not to use these vessels for any military purpose. (2) The presence on board of apparatus exclusively intended to facilitate navigation or communication. The vessels described in Articles 22. the length from stem to stern and the number of masts and funnels. Art 29. but shall at all times be respected and protected. 24. after ensuring the proper care of the wounded and sick who are accommodated therein. (5) The transport of equipment and of personnel intended exclusively for medical duties. These ships must be provided with certificates from the responsible authorities. on condition that their names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed. Hospital Ships Art 22. sick or shipwrecked civilians. Such vessels shall in no wise hamper the movements of the combatants. Hospital ships utilized by National Red Cross Societies. . sick and shipwrecked and not yet handed to the proper service. if the Party to the conflict on which they depend has given them an official commission and in so far as the provisions of Article 22 concerning notification have been complied with. The following conditions shall not be considered as depriving hospital ships or sick-bays of vessels of the protection due to them: (1) The fact that the crews of ships or sick-bays are armed for the maintenance of order. 25 and 27 shall afford relief and assistance to the wounded. that is to say. the commander into whose power they have fallen may.

and in accordance with the provisions of its own legislation. torture or inhuman treatment. the emblem of the red cross on a white ground shall be displayed on the flags. the red crescent or the red lion and sun on a white ground. Personnel Art 36.Chapter IV. provided that the particulars regarding their voyage have been notified to the adverse Power and approved by the latter. neutral observers may be placed on board such ships to verify the equipment carried. these emblems are also recognized by the terms of the present Convention. but not to capture them or seize the equipment carried. Ships chartered for that purpose shall be authorized to transport equipment exclusively intended for the treatment of wounded and sick members of armed forces or for the prevention of disease. the accused persons shall benefit by safeguards of proper trial and defence. Chapter VI. In all circumstances. The Third Convention . Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. not justified by military necessity and carried out unlawfully and wantonly. Art 51. hand such persons over for trial to another High Contracting Party concerned. 1949. Repression of Abuses and Infractions (same) Art 50. whether or not there are wounded and sick on board. Chapter VIII. if committed against persons or property protected by the Convention: wilful killing. in place of the red cross. which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12. or ordering to be committed. or to have ordered to be committed. they may not be captured during the time they are in the service of the hospital ship. Nevertheless. any of the grave breaches of the present Convention defined in the following Article. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing. and shall bring such persons. including biological experiments. By agreement amongst the Parties to the conflict. in the case of countries which already use as emblem. regardless of their nationality. For this purpose. Grave breaches to which the preceding Article relates shall be those involving any of the following acts. wilfully causing great suffering or serious injury to body or health. provided such High Contracting Party has made out a prima facie case. It may also. if it prefers. Medical Transports (very similar to medical land transports) Art 38. armlets and on all equipment employed in the Medical Service. The religious. The adverse Power shall preserve the right to board the carrier ships. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. such grave breaches. medical and hospital personnel of hospital ships and their crews shall be respected and protected. and extensive destruction and appropriation of property. free access to the equipment shall be given. Under the direction of the competent military authority. The Distinctive Emblem (same pa rin) Art 41. before its own courts. Chapter V.

in particular murder of all kinds. the following provisions: (1) Persons taking no active part in the hostilities. all or part of the other provisions of the present Convention. even if the state of war is not recognized by one of them. sex. including such organized resistance movements. who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict. (b) taking of hostages. if the latter accepts and applies the provisions thereof. A. detention. In addition to the provisions which shall be implemented in peace time. including those of organized resistance movements. as well as members of militias or volunteer corps forming part of such armed forces. (b) that of having a fixed distinctive sign recognizable at a distance. Geneva. The Parties to the conflict should further endeavour to bring into force. by means of special agreements. may offer its services to the Parties to the conflict. are persons belonging to one of the following categories. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. 12 August 1949. Although one of the Powers in conflict may not be a party to the present Convention. such as the International Committee of the Red Cross. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person. in particular. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates. provided that such militias or volunteer corps. (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. as a minimum. An impartial humanitarian body. cruel treatment and torture. even if the said occupation meets with no armed resistance. even if this territory is occupied. mutilation. each Party to the conflict shall be bound to apply. or any other cause. (c) outrages upon personal dignity. shall in all circumstances be treated humanely. humiliating and degrading treatment. colour. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. birth or wealth. Art 2. the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. belonging to a Party to the conflict and operating in or outside their own territory. DEFINITION OF POW Art 4. without any adverse distinction founded on race. Art 3. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. wounds. (2) Members of other militias and members of other volunteer corps. (2) The wounded and sick shall be collected and cared for. Prisoners of war. religion or faith. They shall furthermore be bound by the Convention in relation to the said Power. in the sense of the present Convention. the Powers who are parties thereto shall remain bound by it in their mutual relations. .Convention (III) relative to the Treatment of Prisoners of War. or any other similar criteria.

5867. without having had time to form themselves into regular armed units. C. Art 5. such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. including masters.(c) that of carrying arms openly. 30. even though it has originally liberated them while hostilities were going on outside the territory it occupies. who on the approach of the enemy spontaneously take up arms to resist the invading forces. 92. (4) Persons who accompany the armed forces without actually being members thereof. pilots and apprentices. Where such diplomatic relations exist. from the armed forces which they accompany. without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties. who have been received by neutral or nonbelligerent Powers on their territory and whom these Powers are required to intern under international law. or where they fail to comply with a summons made to them with a view to internment. who do not benefit by more favourable treatment under any other provisions of international law. of the merchant marine and the crews of civil aircraft of the Parties to the conflict. or having belonged. 10. such as civilian members of military aircraft crews. B. and by the special agreements referred to in the foregoing Article. to the armed forces of the occupied country. who shall provide them for that purpose with an identity card similar to the annexed model. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention. war correspondents. without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8. (d) that of conducting their operations in accordance with the laws and customs of war. 15. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned. (2) The persons belonging to one of the categories enumerated in the present Article. (6) Inhabitants of a non-occupied territory. Art 7. if such there be. fifth paragraph. Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. supply contractors. provided that they have received authorization. Should any doubt arise as to whether persons. if the occupying Power considers it necessary by reason of such allegiance to intern them. those Articles concerning the Protecting Power. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. 126 and. the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention. having committed a belligerent act and having fallen into the hands of the enemy. belong to any of the categories enumerated in Article 4. in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat. (5) Members of crews. members of labour units or of services responsible for the welfare of the armed forces. . The following shall likewise be treated as prisoners of war under the present Convention: (1) Persons belonging. provided they carry arms openly and respect the laws and customs of war.

Art 15. prisoners of war must at all times be protected. Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. regimental. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. and army. Measures of reprisal against prisoners of war are prohibited. Prisoners of war must at all times be humanely treated. Art 13. Such requests must be complied with. particularly against acts of violence or intimidation and against insults and public curiosity. and shall be issued in duplicate. is bound to give only his surname. first names. any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war. with an identity card showing the owner's surname. either within or without its own territory. he may render himself liable to a restriction of the privileges accorded to his rank or status. In particular. and will be regarded as a serious breach of the present Convention. When prisoners of war are transferred under such circumstances. date of birth. of the owner.Part II. equivalent information. furthermore. and date of birth. The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health. take effective measures to correct the situation or shall request the return of the prisoners of war. personal or serial number. dental or hospital treatment of the prisoner concerned and carried out in his interest.5 x 10 cm. Every prisoner of war. but may in no case be taken away from him. If he wilfully infringes this rule. of the rights such capacity confers except in so far as the captivity requires. . and may bear. Prisoners of war are entitled in all circumstances to respect for their persons and their honour. if that Power fails to carry out the provisions of the Convention in any important respect. regimental. The identity card may. bear the signature or the fingerprints. personal or serial number or equivalent information. Art 14. Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. or failing this. Likewise. General Protection of Prisoners of War Art 12. upon being notified by the Protecting Power. Captivity Section 1. Part III. The Detaining Power may not restrict the exercise. no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical. rank. when questioned on the subject. As far as possible the card shall measure 6. responsibility for the application of the Convention rests on the Power accepting them while they are in its custody. or both. first names and rank. Prisoners of war are in the hands of the enemy Power. the Power by whom the prisoners of war were transferred shall. army. Nevertheless. Beginning of Captivity Art 17. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited. The identity card shall be shown by the prisoner of war upon demand. as well. Irrespective of the individual responsibilities that may exist. but not of the individuals or military units who have captured them. the Detaining Power is responsible for the treatment given them.

likewise their metal helmets and gas masks and like articles issued for personal protection. rank and unit of the person issuing the said receipt. General Observations Art 21. Section II. The questioning of prisoners of war shall be carried out in a language which they understand. subject to the provisions of the preceding paragraph. Art 18. Sums of money carried by prisoners of war may not be taken away from them except by order of an officer. Only those prisoners of war who. shall be placed to the credit of the prisoner's account as provided in Article 64. Such measures shall be taken particularly in cases where this may contribute to the improvement of their state of health. nor any other form of coercion. Sums in the currency of the Detaining Power. shall be handed over to the medical service. Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone. It may impose on them the obligation of not leaving. The Detaining Power may subject prisoners of war to internment. The Detaining Power may withdraw articles of value from prisoners of war only for reasons of security. likewise sums taken away in any currency other than that of the Detaining Power and the conversion of which has not been asked for by the owners.No physical or mental torture. even if such effects and articles belong to their regulation military equipment. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions. or which are changed into such currency at the prisoner's request. may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened. may be temporarily kept back in a danger zone. . to camps situated in an area far enough from the combat zone for them to be out of danger. legibly inscribed with the name. as soon as possible after their capture. in so far as is allowed by the laws of the Power on which they depend. the camp where they are interned. The identity of such prisoners shall be established by all possible means. No prisoner of war shall be compelled to accept liberty on parole or promise. prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary. beyond certain limits. the procedure laid down for sums of money impounded shall apply. Effects and articles used for their clothing or feeding shall likewise remain in their possession. insulted. Art 19. horses. of not going outside its perimeter. Internment of Prisoners of War Chapter I. Such objects. decorations and articles having above all a personal or sentimental value may not be taken from prisoners of war. would run greater risks by being evacuated than by remaining where they are. owing to wounds or sickness. owing to their physical or mental condition. At no time should prisoners of war be without identity documents. Prisoners of war who. when such articles are withdrawn. are unable to state their identity. and after the amount and particulars of the owner have been recorded in a special register and an itemized receipt has been given. Badges of rank and nationality. military equipment and military documents. shall remain in the possession of prisoners of war. The Detaining Power shall supply such documents to prisoners of war who possess none. Prisoners of war shall be evacuated. All effects and articles of personal use. or exposed to unpleasant or disadvantageous treatment of any kind. except arms. shall be kept in the custody of the Detaining Power and shall be returned in their initial shape to prisoners of war at the end of their captivity. or if the said camp is fenced in. Prisoners of war may be partially or wholly released on parole or promise.

themselves. Chapter II. they shall be given the means of preparing. Collective disciplinary measures affecting food are prohibited. Prisoners of war shall. The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space. Account shall also be taken of the habitual diet of the prisoners. Uniforms of enemy armed forces captured by the Detaining Power should. Prisoners of war interned in unhealthy areas. or where the climate is injurious for them. as far as possible. are accommodated. Art 22. be associated with the preparation of their meals. they shall not be interned in penitentiaries. prisoners of war who work shall receive appropriate clothing. separate dormitories shall be provided for them. wherever the nature of the work demands. shall be removed as soon as possible to a more favourable climate. they may be employed for that purpose in the kitchens. except with their consent. Quarters. provided that such prisoners shall not be separated from prisoners of war belonging to the armed forces with which they were serving at the time of their capture. Sufficient drinking water shall be supplied to prisoners of war. quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies. the additional food in their possession. Art 27. Furthermore. Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. as well as men. Art 26. The Detaining Power shall assemble prisoners of war in camps or camp compounds according to their nationality. bedding and blankets. All precautions must be taken against the danger of fire. In addition. which shall make allowance for the climate of the region where the prisoners are detained. the Power on which they depend is bound neither to require nor to accept from them any service incompatible with the parole or promise given. each Party to the conflict shall notify the adverse Party of the laws and regulations allowing or forbidding its own nationals to accept liberty on parole or promise. Clothing. in particular between dusk and lights out. be made available to clothe prisoners of war. and the general installations. Food and Clothing of Prisoners of War Art 25. The basic daily food rations shall be sufficient in quantity. The use of tobacco shall be permitted. . The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health. The regular replacement and repair of the above articles shall be assured by the Detaining Power. In any camps in which women prisoners of war.Upon the outbreak of hostilities. shall be entirely protected from dampness and adequately heated and lighted. Prisoners of war who are paroled or who have given their promise in conformity with the laws and regulations so notified. the engagements of their paroles or promises. are bound on their personal honour scrupulously to fulfil. In such cases. both towards the Power on which they depend and towards the Power which has captured them. Adequate premises shall be provided for messing. The premises provided for the use of prisoners of war individually or collectively. if suitable for the climate. language and customs. Except in particular cases which are justified by the interest of the prisoners themselves. Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. The Detaining Power shall supply prisoners of war who work with such additional rations as are necessary for the labour on which they are employed. underwear and footwear shall be supplied to prisoners of war in sufficient quantities by the Detaining Power.

pending repatriation. be set aside for cases of contagious or mental disease. if possible. separate conveniences shall be provided for them. especially against those who are escaping or attempting to escape. taking into account their age. Prisoners of war may not be prevented from presenting themselves to the medical authorities for examination. Special facilities shall be afforded for the care to be given to the disabled. of their nationality. however. preferably. Discipline Art 39. The detaining authorities shall. they must. The costs of treatment. Chapter VI. . the necessary installations. shall constitute an extreme measure. sex. must be admitted to any military or civilian medical unit where such treatment can be given. and for their. rehabilitation. Art 42. under the direction of his government. must salute and show to all officers of the Detaining Power the external marks of respect provided for by the regulations applying in their own forces. and the duration and kind of treatment received. Every prisoner of war camp shall be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power. The use of weapons against prisoners of war. Section III. a surgical operation or hospital care. Prisoners of war suffering from serious disease. Hygene and Medical Attention Art 29. and spectacles. The Detaining Power may utilize the labour of prisoners of war who are physically fit. Art 30. rank and physical aptitude. apart from the baths and showers with which the camps shall be furnished prisoners of war shall be provided with sufficient water and soap for their personal toilet and for washing their personal laundry. The Detaining Power shall be bound to take all sanitary measures necessary to ensure the cleanliness and healthfulness of camps and to prevent epidemics. if necessary. Labour of Prisoners of War Art 49. Officer prisoners of war are bound to salute only officers of a higher rank of the Detaining Power. including those of any apparatus necessary for the maintenance of prisoners of war in good health. and with a view particularly to maintaining them in a good state of physical and mental health. Prisoners of war shall have for their use. in particular to the blind. or whose condition necessitates special treatment. which shall always be preceded by warnings appropriate to the circumstances. Also. facilities and time shall be granted them for that purpose. Prisoners of war. upon request. A duplicate of this certificate shall be forwarded to the Central Prisoners of War Agency. conveniences which conform to the rules of hygiene and are maintained in a constant state of cleanliness. with the exception of officers. particularly dentures and other artificial appliances. issue to every prisoner who has undergone treatment. Such officer shall have in his possession a copy of the present Convention. Every camp shall have an adequate infirmary where prisoners of war may have the attention they require. even if their repatriation is contemplated in the near future. shall be borne by the Detaining Power. In any camps in which women prisoners of war are accommodated.Chapter III. Isolation wards shall. salute the camp commander regardless of his rank. Prisoners of war shall have the attention. as well as appropriate diet. for its application. he shall ensure that its provisions are known to the camp staff and the guard and shall be responsible. of medical personnel of the Power on which they depend and. an official certificate indicating the nature of his illness or injury. day and night.

and conforming as closely as possible to the models annexed to the present Convention. of the measures taken to carry out the provisions of the present Section. Besides work connected with camp administration. on the other hand. Art 70. Unless he be a volunteer. every prisoner of war shall be enabled to write direct to his family. it shall be found for them. If limitations must be placed on the correspondence addressed to prisoners of . (f) public utility services having no military character or purpose. even if it is a transit camp. likewise in case of sickness or transfer to hospital or to another camp. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each prisoner of war. Art 50. on the one hand. Relations of Prisoners of War With the Exterior Art 69. Section V. Further limitations may be imposed only if the Protecting Power is satisfied that it would be in the interests of the prisoners of war concerned to do so owing to difficulties of translation caused by the Detaining Power's inability to find sufficient qualified linguists to carry out the necessary censorship. If officers or persons of equivalent status ask for suitable work. if possible. installation or maintenance. public works and building operations which have no military character or purpose. so far as possible. and manufacturing industries. (c) transport and handling of stores which are not military in character or purpose. The removal of mines or similar devices shall be considered as dangerous labour. exclusive of the capture cards provided for in Article 70. in conformity with Article 78. (d) commercial business. to the model annexed to the present Convention. Immediately upon prisoners of war falling into its power. with the exception of metallurgical.Non-commissioned officers who are prisoners of war shall only be required to do supervisory work. machinery and chemical industries. Prisoners of war shall be allowed to send and receive letters and cards. (e) domestic service. (b) industries connected with the production or the extraction of raw materials. a card similar. They shall likewise inform the parties concerned of any subsequent modifications of such measures. No prisoner of war shall be assigned to labour which would be looked upon as humiliating for a member of the Detaining Power's own forces. prisoners of war may be compelled to do only such work as is included in the following classes: (a) agriculture. address and state of health. prisoners of war shall be allowed to exercise their right of complaint. the said number shall not be less than two letters and four cards monthly. Art 71. no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature. so far as possible. Art 52. The said cards shall be forwarded as rapidly as possible and may not be delayed in any manner. and arts and crafts. Immediately upon capture. Should the above provisions be infringed. the Detaining Power shall inform them and the Powers on which they depend. and to the Central Prisoners of War Agency provided for in Article 123. or not more than one week after arrival at a camp. Those not so required may ask for other suitable work which shall. be found for them. informing his relatives of his capture. through the Protecting Power. but they may in no circumstances be compelled to work.

the senior officer among the prisoners of war shall be recognized as the camp prisoners' representative. . As a general rule. his assistants shall be chosen from among the prisoners of war who are not officers and shall be elected by them. and must be addressed to offices of destination. IIn all places where there are prisoners of war. Complaints of Prisoners of War Respecting the Conditions of Captivity Art 78 Prisoners of war shall have the right to make known to the military authorities in whose power they are. direct. as well as those who are at a great distance from their homes. Such letters and cards must be conveyed by the most rapid method at the disposal of the Detaining Power. except in those where there are officers. the fees being charged against the prisoners of war's accounts with the Detaining Power or paid in the currency at their disposal. the prisoners shall freely elect by secret ballot.war. Prisoner of War Representatives Art 79. These requests and complaints shall not be limited nor considered to be a part of the correspondence quota referred to in Article 71. they may not give rise to any punishment. the International Committee of the Red Cross and any other organization which may assist them. for the purpose of carrying out the camp administration duties for which the prisoners of war are responsible. In camps for officers. Section VI. These prisoners' representatives shall be eligible for re-election. Sacks containing prisoner of war mail must be securely sealed and labelled so as clearly to indicate their contents. the Protecting Powers. possibly at the request of the Detaining Power. in order to draw their attention to any points on which they may have complaints to make regarding their conditions of captivity. Relations Between Prisoners of War and the Authorities Chapter I. prisoners' representatives entrusted with representing them before the military authorities. They must be transmitted immediately. Chapter II. These officers may be elected as prisoners' representatives under the first paragraph of this Article. he shall be assisted by one or more advisers chosen by the officers. they may be ordered only by the Power on which the prisoners depend. In such a case the assistants to the prisoners' representatives shall be chosen from among those prisoners of war who are not officers. they may not be delayed or retained for disciplinary reasons. their requests regarding the conditions of captivity to which they are subjected. Officer prisoners of war of the same nationality shall be stationed in labour camps for prisoners of war. the correspondence of prisoners of war shall be written in their native language. or who are unable to receive news from their next of kin or to give them news by the ordinary postal route. and also in case of vacancies. shall be permitted to send telegrams. In camps for officers and persons of equivalent status or in mixed camps. if they consider it necessary. They shall likewise benefit by this measure in cases of urgency. Prisoners' representatives may send periodic reports on the situation in the camps and the needs of the prisoners of war to the representatives of the Protecting Powers. They shall also have the unrestricted right to apply to the representatives of the Protecting Powers either through their prisoners' representative or. The Parties to the conflict may allow correspondence in other languages. in mixed camps. Prisoners of war who have been without news for a long period. every six months. Even if they are recognized to be unfounded.

The escape of a prisoner of war shall be deemed to have succeeded when: (1) he has joined the armed forces of the Power on which he depends. (3) Fatigue duties not exceeding two hours daily. or of an allied Power. according to their nationality. the benefits of the present Convention. in accordance with the foregoing paragraphs. shall have for each section their own prisoners' representative. Penal and Disciplinary Sanctions I. . (2) Discontinuance of privileges granted over and above the treatment provided for by the present Convention. The punishment referred to under (3) shall not be applied to officers. However. whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power.Every representative elected must be approved by the Detaining Power before he has the right to commence his duties. Chapter III. Where the Detaining Power refuses to approve a prisoner of war elected by his fellow prisoners of war. even if it is a repeated offence. A prisoner of war who is recaptured shall be handed over without delay to the competent military authority. In all cases the prisoners' representative must have the same nationality. (3) he has joined a ship flying the flag of the Power on which he depends. language and customs as the prisoners of war whom he represents. the Detaining Power shall be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws. In no case shall disciplinary punishments be inhuman. A prisoner of war who attempts to escape and is recaptured before having made good his escape in the sense of Article 91 shall be liable only to a disciplinary punishment in respect of this act. language or customs. in the territorial waters of the Detaining Power. General Provisions Art 82. Prisoners of war who have made good their escape in the sense of this Article and who are recaptured. brutal or dangerous to the health of prisoners of war. If any law. The disciplinary punishments applicable to prisoners of war are the following: (1) A fine which shall not exceed 50 per cent of the advances of pay and working pay which the prisoner of war would otherwise receive under the provisions of Articles 60 and 62 during a period of not more than thirty days. Art 85. prisoners of war distributed in different sections of a camp. Art 92. no proceedings or punishments contrary to the provisions of this Chapter shall be allowed. Disciplinary Sanctions Art 89. such acts shall entail disciplinary punishments only. Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain. A prisoner of war shall be subject to the laws. (4) Confinement. regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable. the said ship not being under the control of the last named Power. shall not be liable to any punishment in respect of their previous escape. regulations and orders in force in the armed forces of the Detaining Power. Art 91. Thus. II. or those of an allied Power. (2) he has left the territory under the control of the Detaining Power. it must inform the Protecting Power of the reason for such refusal. or of an ally of the said Power. even if convicted. regulations or orders.

to the calling of witnesses and. shall not be deemed an aggravating circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offence committed during his escape or attempt to escape. the provisions of the present Chapter have been observed. in force at the time the said act was committed. to defence by a qualified advocate or counsel of his own choice. the Protecting Power shall find him an advocate or counsel. Art 105. to the services of a competent interpreter. . on request.Art 93. Juridicial Proceedings Art 99. been particularly called to the fact that since the accused is not a national of the Detaining Power. the Detaining Power shall appoint a competent advocate or counsel to conduct the defence. Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power on which the prisoners of war depend. second paragraph. The prisoner of war shall be entitled to assistance by one of his prisoner comrades. No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law. Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power. He may. he is not bound to it by any duty of allegiance. III. shall occasion disciplinary punishment only. furthermore. and shall have at least one week at its disposal for the purpose. in particular. the detailed communication provided for in Article 107. No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused. Escape or attempt to escape. in accordance with Article 87. a list of persons qualified to present the defence. offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb. The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has. He may also confer with any witnesses for the defence. Failing a choice by the prisoner of war. If the death penalty is pronounced on a prisoner of war. at an indicated address. The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial. and that he is in its power as the result of circumstances independent of his own will. the sentence shall not be executed before the expiration of a period of at least six months from the date when the Protecting Power receives. such as offences against public property. including prisoners of war. Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences which are punishable by the death sentence under the laws of the Detaining Power. as well as the necessary facilities to prepare the defence of the accused. even if it is a repeated offence. A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power. the drawing up or use of false papers. Art 102. and if. if he deems necessary. freely visit the accused and interview him in private. The Detaining Power shall deliver to the said Power. theft without intention of self-enrichment. or the wearing of civilian clothing. Art 100. No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel. In conformity with the principle stated in Article 83. He shall have the benefit of these facilities until the term of appeal or petition has expired. Prisoners of war who aid or abet an escape or an attempt to escape shall be liable on this count to disciplinary punishment only. Art 101. He shall be advised of these rights by the Detaining Power in due time before the trial.

Parties to the conflict are bound to send back to their own country. in accordance with the first paragraph of the following Article. as shall likewise their status. should be repatriated: (1) Those whose state of health has deteriorated so as to fulfil the condition laid down for direct repatriation. after having cared for them until they are fit to travel. (2) Those whose mental or physical powers remain. this is held in camera in the interest of State security. (2) Wounded and sick who. seriously wounded and seriously sick prisoners of war. Every prisoner of war shall have. to make arrangements for the accommodation in neutral countries of the sick and wounded prisoners of war referred to in the second paragraph of the following Article. (3) Wounded and sick who have recovered. The conditions which prisoners of war accommodated in a neutral country must fulfil in order to permit their repatriation shall be fixed. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so. but whose mental or physical fitness seems to have been gravely and permanently diminished. In such a case the Detaining Power shall advise the Protecting Power accordingly. in addition. by agreement between the Powers concerned. Art 110. prisoners of war who have been accommodated in a neutral country. The following shall be repatriated direct: (1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished. if treatment in a neutral country might increase the prospects of a more certain and speedy recovery. In general. unless. the right of appeal or petition from any sentence pronounced upon him. Parties to the conflict shall endeavour. Part IV. The representatives of the Protecting Power shall be entitled to attend the trial of the case. Termination of Captivity Section I. whose condition requires treatment and whose mental or physical fitness seems to have been gravely diminished. They may. and who belong to the following categories. Art 106. is seriously threatened by continued captivity. in the same manner as the members of the armed forces of the Detaining Power. Throughout the duration of hostilities. even after treatment. may be repatriated against his will during hostilities. Subject to the provisions of the third paragraph of this Article. Direct Repatriation and Accommodation in Neutral Countries Art 109. according to medical opinion. If no special agreements are concluded between the Parties to the conflict concerned. The same communication in the same circumstances shall be made to the advocate or counsel conducting the defence on behalf of the prisoner of war. conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity. (2) Prisoners of war whose mental or physical health. considerably impaired. and in good time before the opening of the trial. No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this Article. exceptionally. to determine the cases of disablement or sickness entailing direct repatriation or accommodation in a neutral country. such cases shall be settled in accordance with the . but whose accommodation in a neutral country might remove such a threat. according to medical opinion. shall be communicated to the accused prisoner of war in a language which he understands. are not likely to recover within one year. with a view to the quashing or revising of the sentence or the reopening of the trial. as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power.Particulars of the charge or charges on which the prisoner of war is to be arraigned. regardless of number or rank. with the cooperation of the neutral Powers concerned. The following may be accommodated in a neutral country: (1) Wounded and sick whose recovery may be expected within one year of the date of the wound or the beginning of the illness.

the Power on which the prisoners of war depend shall bear the costs of repatriation from the frontiers of the Detaining Power. the will shall be transmitted without delay to the Protecting Power. a certified copy shall be sent to the Central Agency. . Death certificates. if possible according to the rites of the religion to which they belonged. or lists certified by a responsible officer. (b) If the two Powers are not contiguous. This apportionment shall be carried out on the following basis: (a) If the two Powers are contiguous. or failing any such agreement. and that their graves are respected. At the request of the prisoner of war and. Bodies may be cremated only for imperative reasons of hygiene. each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph. the cause of death. which will take steps to inform the Detaining Power of its requirements in this respect. the Detaining Power shall bear the costs of transport of prisoners of war over its own territory as far as its frontier or its port of embarkation nearest to the territory of the Power on which the prisoners of war depend. In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities. in all cases. The Parties concerned shall agree between themselves as to the equitable apportionment of the remaining costs of the repatriation. Wherever possible. in the form annexed to the present Convention. the measures adopted shall be brought to the knowledge of the prisoners of war. The conclusion of this agreement shall in no circumstances justify any delay in the repatriation of the prisoners of war. The detaining authorities shall ensure that prisoners of war who have died in captivity are honourably buried. Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. on account of the religion of the deceased or in accordance with his express wish to this effect. of all persons who die as prisoners of war shall be forwarded as rapidly as possible to the Prisoner of War Information Bureau established in accordance with Article 122. where necessary. The costs of repatriation of prisoners of war shall in all cases be equitably apportioned between the Detaining Power and the Power on which the prisoners depend.principles laid down in the Model Agreement concerning direct repatriation and accommodation in neutral countries of wounded and sick prisoners of war and in the Regulations concerning Mixed Medical Commissions annexed to the present Convention. The death certificates or certified lists shall show particulars of identity as set out in the third paragraph of Article 17. Death of Prisoners of War Art 120. after death. the fact shall be stated and the reasons given in the death certificate of the deceased. Wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by the legislation of their country of origin. suitably maintained and marked so as to be found at any time. Section III. and also the date and place of death. Release and Repatriation of Prisoners of War at the Close of Hostilities Art 118. establishing identity. In case of cremation. the date and place of burial and all particulars necessary to identify the graves. Section II. Deceased prisoners of war shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. deceased prisoners of war who depended on the same Power shall be interred in the same place. The burial or cremation of a prisoner of war shall be preceded by a medical examination of the body with a view to confirming death and enabling a report to be made and. In either case.

These provisions shall also apply to the ashes. The function of the Agency shall be to collect all the information it may obtain through official or private channels respecting prisoners of war. or of the relief societies provided for in Article 125. and in particular those whose nationals benefit by the services of the Central Agency. colour. detention. The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities of the International Committee of the Red Cross. It shall receive from the Parties to the conflict all facilities for effecting such transmissions. each Party to the conflict shall be bound to apply. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. Responsibility for the care of these graves and for records of any subsequent moves of the bodies shall rest on the Power controlling the territory. PART V. are requested to give the said Agency the financial aid it may require. They shall furthermore be bound by the Convention in relation to the said Power. even if the said occupation meets with no armed resistance. even if the state of war is not recognized by one of them. Lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere shall be transmitted to the Power on which such prisoners of war depended. The High Contracting Parties. if the latter accepts and applies the provisions thereof. propose to the Powers concerned the organization of such an Agency. if it deems necessary. In addition to the provisions which shall be implemented in peace-time. Although one of the Powers in conflict may not be a party to the present Convention. . A Central Prisoners of War Information Agency shall be created in a neutral country. wounds. birth or wealth. Information Bureaux and Relief Societies for Prisoners of War Art 123. Art. including members of armed forces who have laid down their arms and those placed hors de combat by sickness. if a Party to the present Convention. the following provisions: (1) Persons taking no active part in the hostilities. sex. the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. The Fourth Convention Convention (IV) relative to the Protection of Civilian Persons in Time of War. or any other cause. 12 August 1949. without any adverse distinction founded on race. as a minimum. The International Committee of the Red Cross shall. Geneva. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. shall in all circumstances be treated humanely. which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country. religion or faith.In order that graves may always be found. and to transmit it as rapidly as possible to the country of origin of the prisoners of war or to the Power on which they depend. Art. or any other similar criteria. 2. 3. the Powers who are parties thereto shall remain bound by it in their mutual relations. all particulars of burials and graves shall be recorded with a Graves Registration Service established by the Detaining Power.

in particular. such as the International Committee of the Red Cross. (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court. The provisions of Part II are. in particular humiliating and degrading treatment. in case of a conflict or occupation. shall not be considered as protected persons within the meaning of the present Convention. in particular murder of all kinds. find themselves. (2) The wounded and sick shall be collected and cared for. 4. without any adverse distinction based. An impartial humanitarian body. General Protection of Populations Against Certain Consequences of War Art. wider in application. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. affording all the judicial guarantees which are recognized as indispensable by civilized peoples. however. may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force. mutilation. The provisions of Part II cover the whole of the populations of the countries in conflict. on race.To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person. or by the Geneva Convention for the Amelioration of the Condition of Wounded. nationality. or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. WHO ARE THE PARTIES PROTECTED Art. Persons protected by the Convention are those who. and are intended to alleviate the sufferings caused by war. Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949. (c) outrages upon personal dignity. by means of special agreements. religion or political opinion. in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Art. and by the special agreements referred to in the foregoing Article. (b) taking of hostages. all or part of the other provisions of the present Convention. Part II. 8. Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949. Nationals of a State which is not bound by the Convention are not protected by it. cruel treatment and torture. . at a given moment and in any manner whatsoever. 13. as defined in Article 13. Nationals of a neutral State who find themselves in the territory of a belligerent State. and nationals of a co-belligerent State. shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. if such there be. Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention.

or by some other means. acts harmful to the enemy. as far as possible. food supply and supervision of the proposed neutralized zone. if any. naming. air and naval forces in order to obviate the possibility of any hostile action. The agreement shall fix the beginning and the duration of the neutralization of the zone. perform no work of a military character. cease only after due warning has been given. may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict. Civilian hospitals organized to give care to the wounded and sick. either direct or through a neutral State or some humanitarian organization. or the presence of small arms and ammunition taken from such combatants and not yet been handed to the proper service. in so far as military considerations permit. Any Party to the conflict may. and who. 19. The Parties to the conflict shall. Art. administration. outside their humanitarian duties. a reasonable time limit and after such warning has remained unheeded. Civilian hospitals shall be marked by means of the emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949. neutralized zones intended to shelter from the effects of war the following persons. furthermore. Art. who are orphaned or are separated from their families as a result of the war. Their education shall. the infirm and maternity cases. take the necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to the enemy land. States which are Parties to a conflict shall provide all civilian hospitals with certificates showing that they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would deprive these hospitals of protection in accordance with Article 19. The Parties to the conflict shall take the necessary measures to ensure that children under fifteen. Part III. 18. Provisions common to the territories of the parties to the conflict and to occupied territories . the exercise of their religion and their education are facilitated in all circumstances. and under due safeguards for the observance of the principles stated in the first paragraph. They shall. without distinction: (a) wounded and sick combatants or non-combatants. endeavour to arrange for all children under twelve to be identified by the wearing of identity discs. are not left to their own resources. Protection may. When the Parties concerned have agreed upon the geographical position.Art. 15. and that their maintenance. (b) civilian persons who take no part in hostilities. in all appropriate cases. be entrusted to persons of a similar cultural tradition. Art. it is recommended that such hospitals be situated as far as possible from such objectives. a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. in the regions where fighting is taking place. shall not be considered to be acts harmful to the enemy. The protection to which civilian hospitals are entitled shall not cease unless they are used to commit. propose to the adverse Party to establish. however. Status and Treatment of Protected Persons Section I. but only if so authorized by the State. In view of the dangers to which hospitals may be exposed by being close to military objectives. The fact that sick or wounded members of the armed forces are nursed in these hospitals. while they reside in the zones.24. The Parties to the conflict shall facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of the Protecting Power.

or during a conflict. the names of all persons who have been denied permission to leave. unless reasons of security prevent it. in principle. in particular. be furnished with the reasons for refusal of any request for permission to leave the territory and be given. (3) they shall be allowed to practise their religion and to receive spiritual assistance from ministers of their faith. receive medical attention and hospital treatment to the same extent as the nationals of the State concerned. Aliens in the territory of a party to the conflict Art. the following rights shall be granted to them: (1) they shall be enabled to receive the individual or collective relief that may be sent to them. if their state of health so requires. 34. unless their departure is contrary to the national interests of the State. the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war. With the exception of special measures authorized by the present Convention. (5) children under fifteen years. religion or political opinion. shall be entitled to do so. without any adverse distinction based. their honour. their religious convictions and practices. Art. Upon request. their family rights. In any case. all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are. by the provisions concerning aliens in time of peace. Section II.Art. he shall be entitled to have refusal reconsidered. 38. Protected persons are entitled. All protected persons who may desire to leave the territory at the outset of. Those persons permitted to leave may provide themselves with the necessary funds for their journey and take with them a reasonable amount of their effects and articles of personal use. to respect for their persons. age and sex. No physical or moral coercion shall be exercised against protected persons. 27. Art. as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. Without prejudice to the provisions relating to their state of health. in all circumstances. . The taking of hostages is prohibited. The applications of such persons to leave shall be decided in accordance with regularly established procedures and the decision shall be taken as rapidly as possible. they shall be authorized to move from that area to the same extent as the nationals of the State concerned. the situation of protected persons shall continue to be regulated. in particular to obtain information from them or from third parties. (2) they shall. Art. and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. They shall at all times be humanely treated. If any such person is refused permission to leave the territory. Women shall be especially protected against any attack on their honour. 35. The presence of a protected person may not be used to render certain points or areas immune from military operations. in particular against rape. representatives of the Protecting Power shall. and their manners and customs. as expeditiously as possible. or the persons concerned object. 28. (4) if they reside in an area particularly exposed to the dangers of war. pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State concerned. However. 31. in particularly by Article 27 and 41 thereof. enforced prostitution. Art. or any form of indecent assault. on race.

previous training and compensation for occupational accidents and diseases. into the institutions or government of the said territory. Art. clothing and equipment. Protected persons who are in occupied territory shall not be deprived. however. . with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. of the benefits of the present Convention by any change introduced. the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State. in any case or in any manner whatsoever. are prohibited. in order to induce them to work for the Occupying Power. 64. If the above provisions are infringed. enjoy the protection of any government. 47. Art. provided the duration of such internment or imprisonment is proportionate to the offence committed. In the cases mentioned in the two preceding paragraphs. hours of labour. protected persons compelled to work shall have the benefit of the same working conditions and of the same safeguards as national workers in particular as regards wages. and likewise of the establishments and lines of communication used by them. the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. of the members and property of the occupying forces or administration. acting through the representatives of the Protecting Power. Occupied territories Art. subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention. Art. In applying the measures of control mentioned in the present Convention. nor a grave collective danger. and if his situation renders this step necessary. to maintain the orderly government of the territory. transport and health of human beings and which is not directly related to the conduct of military operations. protected persons shall be allowed to exercise their right of complaint in accordance with Article 30. he shall be interned by the Power in whose hands he may be. refugees who do not. Section III. nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power. as the result of the occupation of a territory. If any person. shall be liable to internment or simple imprisonment. The Occupying Power may. nor by any annexation by the latter of the whole or part of the occupied territory. they may only be compelled to do work which is normally necessary to ensure the feeding. voluntarily demands internment. 44. Protected persons who commit an offence which is solely intended to harm the Occupying Power. nor seriously damage the property of the occupying forces or administration or the installations used by them. The penal laws of the occupied territory shall remain in force. in fact. clothing. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. Protected persons may be compelled to work only to the same extent as nationals of the Party to the conflict in whose territory they are. 40. . and to ensure the security of the Occupying Power. If protected persons are of enemy nationality. 68. 42. sheltering. Art. but which does not constitute an attempt on the life or limb of members of the occupying forces or administration. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice.Art.

be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health. internment or imprisonment shall. No death sentence shall be carried out before the expiration of a period of a least six months from the date of receipt by the Protecting Power of the notification of the final judgment confirming such death sentence. Art. The six months period of suspension of the death sentence herein prescribed may be reduced in individual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying Power or its forces. or during a temporary interruption thereof. the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence. Proper regard shall be paid to the special treatment due to minors. The courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period. They shall also have the right to receive any spiritual assistance which they may require. shall not be arrested. he is not bound to it by any duty of allegiance. Women shall be confined in separate quarters and shall be under the direct supervision of women. if possible. Such persons shall have the right to receive at least one relief parcel monthly. provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began. Nationals of the occupying Power who. In any case. General provisions . would have justified extradition in time of peace. Art. In no case shall persons condemned to death be deprived of the right of petition for pardon or reprieve. Protected persons accused of offences shall be detained in the occupied country. of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons. and if convicted they shall serve their sentences therein. Art. 76. be the only measure adopted for depriving protected persons of liberty. Protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and of the International Committee of the Red Cross. or for offences under common law committed before the outbreak of hostilities which. except for offences committed after the outbreak of hostilities. provided always that the Protecting Power is notified of such reduction and is given reasonable time and opportunity to make representations to the competent occupying authorities in respect of such death sentences. before the outbreak of hostilities. The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power. 70. according to the law of the occupied State. They shall. or of an order denying pardon or reprieve. Regulations for the treatment of internees Chapter I. Section IV. have sought refuge in the territory of the occupied State. prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation. in accordance with the provisions of Article 143. for such offences. Protected persons shall not be arrested. prosecuted. 75. convicted or deported from the occupied territory. The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty against a protected person only in cases where the person is guilty of espionage. They shall receive the medical attention required by their state of health. with the exception of breaches of the laws and customs of war.Furthermore. and which will be at least equal to those obtaining in prisons in the occupied country.

Places of Internment Art. shall be given additional food. it shall be provided free of charge to them by the Detaining Power. Internees shall be accommodated and administered separately from prisoners of war and from persons deprived of liberty for any other reason. in proportion to their physiological needs. Internees who work shall receive additional rations in proportion to the kind of labour which they perform. Workers shall receive suitable working outfits. 89. No deduction from the allowances. under the direction of a qualified doctor.Art. Every place of internment shall have an adequate infirmary. Chapter II. Expectant and nursing mothers and children under fifteen years of age. agree upon any other system of marking. if such dependents are without adequate means of support or are unable to earn a living. No place other than an internment camp shall be marked as such. through the intermediary of the Protecting Powers.84. Art. Should any internees not have sufficient clothing. Sufficient drinking water shall be supplied to internees. Chapter III. including protective clothing. internment camps shall be indicated by the letters IC. Internees shall retain their full civil capacity and shall exercise such attendant rights as may be compatible with their status. The Detaining Power shall give the enemy Powers. Art. The use of tobacco shall be permitted. as well as an appropriate diet. . placed so as to be clearly visible in the daytime from the air. Internees shall also be given the means by which they can prepare for themselves any additional food in their possession. and be unable to procure any. salaries or credits due to the internees shall be made for the repayment of these costs. 91. Parties to the conflict who intern protected persons shall be bound to provide free of charge for their maintenance. 90. all useful information regarding the geographical location of places of internment. and to grant them also the medical attention required by their state of health. The Detaining Power shall not set up places of internment in areas particularly exposed to the dangers of war. Chapter IV. Whenever military considerations permit. Art. Isolation wards shall be set aside for cases of contagious or mental diseases. and later on. internees shall be given all facilities to provide themselves with the necessary clothing. whenever the nature of their work so requires. Food and Clothing Art. 80. When taken into custody. The clothing supplied by the Detaining Power to internees and the outward markings placed on their own clothes shall not be ignominious nor expose them to ridicule. Account shall also be taken of the customary diet of the internees. 83. footwear and change of underwear. to procure further supplies if required. Daily food rations for internees shall be sufficient in quantity. 81. The Detaining Power shall provide for the support of those dependent on the internees. quality and variety to keep internees in a good state of health and prevent the development of nutritional deficiencies. however. account being taken of the climate. Hygiene and Medical Attention Art. where internees may have the attention they require. The Powers concerned may.

The text of the present Convention and the texts of special agreements concluded under the said Convention shall be posted inside the place of internment. Relations with the Exterior Art. 99. likewise. upon request. a surgical operation or hospital care. The disciplinary regime in places of internment shall be consistent with humanitarian principles. and to the Central Agency provided for by Article 140. In every place of internment. Regulations. Every place of internment shall be put under the authority of a responsible officer. The medical authorities of the Detaining Power shall. military drill and manoeuvres. the members of a Committee empowered to represent them before the Detaining and the Protecting Powers. the International Committee of the Red Cross and any other organization which may assist them. notices and publications of every kind shall be communicated to the internees and posted inside the places of internment. punishment drill. . is prohibited. in a language which they understand. chosen from the regular military forces or the regular civil administration of the Detaining Power. if possible. or shall be in the possession of the Internee Committee. or whose condition requires special treatment. are prohibited. and shall in no circumstances include regulations imposing on internees any physical exertion dangerous to their health or involving physical or moral victimization. an internment card similar. must be admitted to any institution where adequate treatment can be given and shall receive care not inferior to that provided for the general population. have the attention of medical personnel of their own nationality. including the provision of any apparatus necessary for the maintenance of internees in good health. Internees so elected shall enter upon their duties after their election has been approved by the detaining authorities. the internees shall freely elect by secret ballot every six months. in a language which the internees understand. As soon as he is interned. shall be free of charge to the internee. and likewise in cases of sickness or transfer to another place of internment or to a hospital. Art. Treatment. to the model annexed to the present Convention. prolonged standing and roll-calls. Internees may not be prevented from presenting themselves to the medical authorities for examination. In particular. issue to every internee who has undergone treatment an official certificate showing the nature of his illness or injury. Chapter VII. informing his relatives of his detention. Art. and the duration and nature of the treatment given. Internees shall. 106. The said cards shall be forwarded as rapidly as possible and may not be delayed in any way. A duplicate of this certificate shall be forwarded to the Central Agency provided for in Article 140. of his country and shall be responsible for its application. The reasons for any refusals or dismissals shall be communicated to the Protecting Powers concerned. be given in a language which they understand. 100. The members of the Committee shall be eligible for re-election. 102. or at the latest not more than one week after his arrival in a place of internment. for preference. The officer in charge of the place of internment must have in his possession a copy of the present Convention in the official language. every internee shall be enabled to send direct to his family. Every order and command addressed to internees individually must. Identification by tattooing or imprinting signs or markings on the body. Administration and Discipline Art. The staff in control of internees shall be instructed in the provisions of the present Convention and of the administrative measures adopted to ensure its application. or the reduction of food rations.Maternity cases and internees suffering from serious diseases. on the one hand. or one of the official languages. orders. Chaper VIII. address and state of health. particularly dentures and other artificial appliances and spectacles. on the other.

at regular intervals and as frequently as possible. powers of attorney. such acts shall entail disciplinary punishments only. (2) discontinuance of privileges granted over and above the treatment provided for by the present Convention (3) fatigue duties. or as otherwise required. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each internee. Art. The Detaining Power shall afford internees all facilities to enable them to manage their property. The Detaining Powers shall provide all reasonable execution facilities for the transmission. in connection with the maintenance of the place of internment. 114. . they may not be delayed or retained for disciplinary reasons. or on the same count. The disciplinary punishments applicable to internees shall be the following: (1) a fine which shall not exceed 50 per cent of the wages which the internee would otherwise receive under the provisions of Article 95 during a period of not more than thirty days.Art. regulations or orders declare acts committed by internees to be punishable. (4) confinement. As far as is possible. the said number shall not be less than two letters and four cards monthly. As a rule. these shall be drawn up so as to conform as closely as possible to the models annexed to the present Convention. they may be ordered only by the Power to which such internees owe allegiance. particularly in cases of death or serious illness of relatives. whereas the same acts are not punishable when committed by persons who are not internees. shall be allowed to send telegrams. If general laws. or who find it impossible to receive news from their relatives. 113.116. For this purpose. as well as those who are at a considerable distance from their homes. Art. Chapter IX. through the Protecting Power or the Central Agency provided for in Article 140. 119. In all cases the Detaining Powers shall facilitate the execution and authentication in due legal form of such documents on behalf of internees. in particular by allowing them to consult a lawyer. provided this is not incompatible with the conditions of internment and the law which is applicable. especially near relatives. possibly at the request of the Detaining Power. Penal and Disciplinary Sanctions Art. The Parties to the conflict may authorize correspondence in other languages. Subject to the provisions of the present Chapter. They shall likewise benefit by this provision in cases which are recognized to be urgent. 107. or to give them news by the ordinary postal route. the laws in force in the territory in which they are detained will continue to apply to internees who commit offences during internment. Every internee shall be allowed to receive visitors. the said Power may give them permission to leave the place of internment in urgent cases and if circumstances allow. of wills. or any other documents intended for internees or despatched by them. Such letters and cards must be conveyed with reasonable despatch. Internees who have been a long time without news. No internee may be punished more than once for the same act. Art. Internees shall be allowed to send and receive letters and cards. Art. internees' mail shall be written in their own language. If limitations must be placed on the correspondence addressed to internees. the charges being paid by them in the currency at their disposal. internees shall be permitted to visit their homes in urgent cases. letters of authority. not exceeding two hours daily. 117.

whether such breaches are connected or not. The detaining authorities shall ensure that internees who die while interned are honourably buried. Deaths Art. shall not be deemed an aggravating circumstance in cases where an internee is prosecuted for offences committed during his escape. 130. . and a death certificate shall be made out. 129. An official record of the death. Chapter XI. that it is exercised in a place of internment and that it does not entail the abolition of any of the safeguards granted by the present Convention. even if it is a repeated offence. Internees who are recaptured after having escaped or when attempting to escape. the Detaining Power shall forward lists of graves of deceased internees to the Powers on whom deceased internees depended. Art. internees punished as a result of escape or attempt to escape. The wills of internees shall be received for safe-keeping by the responsible authorities. even if the internee is answerable for several breaches of discipline when his case is dealt with. Article 118. Bodies may be cremated only for imperative reasons of hygiene. whether successful or not. Deaths of internees shall be certified in every case by a doctor. shall be liable only to disciplinary punishment in respect of this act. and not later than the close of hostilities. As soon as circumstances permit. and a duly certified copy of such record shall be transmitted without delay to the Protecting Power as well as to the Central Agency referred to in Article 140. on condition that such surveillance does not affect the state of their health. The duration of any single punishment shall in no case exceed a maximum of thirty consecutive days. brutal or dangerous for the health of internees. paragraph 3. and if the event of the death of an internee his will shall be transmitted without delay to a person whom he has previously designated. the fact shall be stated and the reasons given in the death certificate of the deceased. even if it is a repeated offence. as well as the exact location of their graves. sex and state of health. and marked in such a way that they can always be recognized. duly registered. Such lists shall include all particulars necessary for the identification of the deceased internees. on account of the religion of the deceased or in accordance with his expressed wish to this effect. Escape. The Parties to the conflict shall ensure that the competent authorities exercise leniency in deciding whether punishment inflicted for an offence shall be of a disciplinary or judicial nature. Art. properly maintained. The ashes shall be retained for safe-keeping by the detaining authorities and shall be transferred as soon as possible to the next of kin on their request. or attempt to escape. Art. Deceased internees shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. 120. notwithstanding. Internees who aid and abet an escape or attempt to escape. through the Information Bureaux provided for in Article 136. shall be liable on this count to disciplinary punishment only. In case of cremation.In no case shall disciplinary penalties be inhuman. showing the causes of death and the conditions under which it occurred. if possible according to the rites of the religion to which they belonged and that their graves are respected. Account shall be taken of the internee's age. may be subjected to special surveillance. especially in respect of acts committed in connection with an escape. shall be drawn up in accordance with the procedure relating thereto in force in the territory where the place of internment is situated. 121.

Section V. The Parties to the conflict shall. the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible. require its various departments concerned with such matters to provide the aforesaid Bureau promptly with information concerning all changes pertaining to these protected persons. caused or suspected to have been caused by a sentry. to search for dispersed internees. as well as any death the cause of which is unknown. . committees may be set up after the close of hostilities. Chapter XIII. Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist. the repatriation. upon the close of hostilities or occupation. to conclude agreements for the release. moreover. who are subjected to assigned residence or who are interned. 137. By agreement between the Detaining Power and the Powers concerned. Repatriation and Accommodation in Neutral Countries Art. give its Bureau information of any measure taken by it concerning any protected persons who are kept in custody for more than two weeks. wounded and sick. Every death or serious injury of an internee. It shall. the return to places of residence or the accommodation in a neutral country of certain classes of internees. and internees who have been detained for a long time. until the completion of the penalty. If the enquiry indicates the guilt of one or more persons. and a report including such evidence shall be prepared and forwarded to the said Protecting Power. Upon the outbreak of a conflict and in all cases of occupation. The High Contracting Parties shall endeavour. escapes. furthermore. The same shall apply to internees who have been previously sentenced to a punishment depriving them of liberty. Internment shall cease as soon as possible after the close of hostilities. Information Bureaux and Central Agency Art. endeavour during the course of hostilities. or of the occupation of territories. or to facilitate their repatriation. Each national Bureau shall immediately forward information concerning protected persons by the most rapid means to the Powers in whose territory they resided. Each of the Parties to the conflict shall. admittances to hospitals. Art. repatriations. 134. 131. to ensure the return of all internees to their last place of residence. as. through the intermediary of the Protecting Powers and likewise through the Central Agency provided for in Article 140. Internees in the territory of a Party to the conflict against whom penal proceedings are pending for offences not exclusively subject to disciplinary penalties. A communication on this subject shall be sent immediately to the Protecting Power. releases.Art. The Bureaux shall also reply to all enquiries which may be received regarding protected persons. pregnant women and mothers with infants and young children. each of the Parties to the conflict shall establish an official Information Bureau responsible for receiving and transmitting information in respect of the protected persons who are in its power. shall be immediately followed by an official enquiry by the Detaining Power. Release. another internee or any other person. 132. 136. Art. transfers. within the shortest possible period. The evidence of any witnesses shall be taken. Art. 133. for example. births and deaths. if circumstances require. in particular children. may be detained until the close of such proceedings and.

propose to the Powers concerned the organization of such an Agency. shall be created in a neutral country. so far as possible. greatly reduced rates.Information Bureaux shall transmit information concerning a protected person unless its transmission might be detrimental to the person concerned or to his or her relatives. likewise the exemptions provided for in Article 110. It shall receive from the Parties to the conflict all reasonable facilities for effecting such transmissions. the first name of the father and the maiden name of the mother. the address at which correspondence may be sent to him and the name and address of the person to be informed. The International Committee of the Red Cross shall. if it deems necessary. will take the necessary precautions indicated in Article 140. nationality last residence and distinguishing characteristics. The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities of the International Committee of the Red Cross and of the relief Societies described in Article 142. exemption from telegraphic charges or. A Central Information Agency for protected persons. if necessary. the information may not be withheld from the Central Agency which. in particular those who have been repatriated or released. Art. upon being notified of the circumstances. 138. at least. first names. The information in respect of each person shall include at least his surname. place and nature of the action taken with regard to the individual. 139. The function of the Agency shall be to collect all information of the type set forth in Article 136 which it may obtain through official or private channels and to transmit it as rapidly as possible to the countries of origin or of residence of the persons concerned. All communications in writing made by any Bureau shall be authenticated by a signature or a seal. Each national Information Bureau shall. be responsible for collecting all personal valuables left by protected persons mentioned in Article 136. Art. and by a complete list of the contents of the parcel. which may be the same as that provided for in Article 123 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. or. Art. in particular for internees. through the Central Agency. and further. Such articles shall be sent by the Bureau in sealed packets which shall be accompanied by statements giving clear and full identity particulars of the person to whom the articles belonged. . it shall forward the said valuables to those concerned. The information received by the national Bureau and transmitted by it shall be of such a character as to make it possible to identify the protected person exactly and to advise his next of kin quickly. Likewise. place and date of birth. are requested to give the said Agency the financial aid it may require. and in particular those whose nationals benefit by the services of the Central Agency. 140. 141. or who have escaped or died. or to their relatives. the date. Art. furthermore. information regarding the state of health of internees who are seriously ill or seriously wounded shall be supplied regularly and if possible every week. The High Contracting Parties. except in cases where such transmissions might be detrimental to the persons whom the said information concerns. The national Information Bureaux and the Central Information Agency shall enjoy free postage for all mail. either direct. Detailed records shall be maintained of the receipt and despatch of all such valuables. Even in such a case.

• armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination Definitions (Article 2) • Rules of international law applicable in armed conflict" means the rules applicable in armed conflict set forth in international agreements to which the Parties to the conflict are Parties and the generally recognized principles and rules of international law which are applicable to armed conflict • Protecting Power" means a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power under the Conventions and this Protocol • "Substitute" means an organization acting in place of a Protecting Power Protecting Power (Article 5) • duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers • Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict • each Party to the conflict shall without delay designate a Protecting Power 32 For the three Protocols to the Geneva Conventions. thanks to dave romero. if the latter accepts and applies the provisions thereof.The First Protocol32 Protocol Additional to the Geneva Conventions of 12 August 1949. • Although one of the Powers in conflict may not be a party to the present Convention. • apply to all cases of partial or total occupation of the territory of a High Contracting Party. from the principles of humanity and from dictates of public conscience. the Powers who are parties thereto shall remain bound by it in their mutual relations. even if the state of war is not recognized by one of them. civilians and combatants remain under the protection and authority of the principles of international law derived from established custom. territorial integrity or political independence of any State Scope (Article 1) • In cases not covered by this Protocol or by other international agreements. . even if the said occupation meets with no armed resistance. 8 June 1977. • apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. and relating to the Protection of Victims of International Armed Conflicts (Protocol I). PART 1: GENERAL PROVISIONS Preamble: • earnest wish to see peace prevail among peoples • every State has the duty to refrain from the threat or use of force against the sovereignty. They shall furthermore be bound by the Convention in relation to the said Power.

These terms also cover maternity cases. without any adverse distinction founded on race. shall be respected and protected • The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned. SICK. or medical and religious personnel. or on any other similar criteria. sick and shipwrecked. whether military or civilian. red crescent or red lion and sun on a white ground when used for the protection of medical units and transports.including first-aid treatment .of the wounded. Protection of Persons (Article 11) • All the wounded. water or air of the wounded. such as chaplains. by a Party to the conflict. religion or belief political or other opinion. wealth. because of trauma. sex. religious personnel. such as the infirm or expectant mothers. to medical units or medical transports or to civil defense organizations of a Party to the conflict. whether military or civilian. whether military or civilian. • "Medical personnel" means those persons assigned. exclusively to the medical purposes enumerated under e) or to the administration of medical units or to the operation or administration of medical transports. • "Medical transportation" means the conveyance by land. national or social origin. equipment or supplies Scope (Article 9) • shall apply to all those affected by a situation referred to in Article 1. are in need of medical assistance or care and who refrain from any act of hostility. permanent or temporary. • "Medical units" means establishments and other units. the International Committee of the Red Cross. to whichever Party they belong. who are exclusively engaged in the work of their ministry and attached to the armed forces of a Party to the conflict. • "Religious personnel" means military or civilian persons. who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility. organized for medical purposes. medical or scientific experiments. medical personnel. removal of tissue or organs for transplantation . shipwrecked. language.• If a Protecting Power has not been designated. SHIPWRECKED Definitions (Article 8) • “Wounded" and "sick" mean persons. to medical units or medical transports of a Party to the conflict. namely the search for. new-born babies and other persons who may be in need of immediate medical assistance or care. sick and shipwrecked. medical equipment or medical supplies • "Medical transports" means any means of transportation. shall offer its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent PART 2: WOUNDED. detained or otherwise deprived of liberty shall not be endangered by any unjustified act or omission • prohibited to carry out on such persons. collection. birth or other status. who. and who refrain from any act of hostility • "Shipwrecked" means persons. even with their consent: physical mutilations. without prejudice to the right of any other impartial humanitarian organization to do likewise. assigned exclusively to medical transportation and under the control of a competent authority of a Party to the conflict • "Medical vehicles" means any medical transports by land • "Medical ships and craft" means any medical transports by water • "Medical aircraft" means any medical transports by air • "Distinctive emblem" means the distinctive emblem of the red cross. whether military or civilian. diagnosis or treatment . or for the prevention of disease. colour. transportation. sick. disease or other physical or mental disorder or disability.

and they shall obey every such command. that the unit is guarded by a picket or by sentries or by an escort. whether at sea or in other waters. acts harmful to the enemy (Article 13) • not be considered as acts harmful to the enemy: that the personnel of the unit are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge. that small arms and ammunition taken from the wounded and sick.• Exceptions to the prohibition: only in the case of donations of blood for transfusion or of skin for grafting. sick and shipwrecked on board (Article 23) • A clear refusal to obey a command given in accordance with paragraph 2 shall be an act harmful to the enemy (Article 23) • Medical aircraft shall be respected and protected (Article 24) • In and over land areas physically controlled by friendly forces. even if they belong to the adverse Party. to the best of their ability. and not yet handed to the proper service. outside their humanitarian function. shall make every effort . an agreement. the respect and protection of medical aircraft of a Party to the conflict is not dependent on any agreement with an adverse Party (Article 25) • A medical aircraft which flies over an area physically controlled by an adverse Party without. sick and shipwrecked. order them off. either through navigational error or because of an emergency affecting the safety of the flight. or in and over sea areas not physically controlled by an adverse Party. or make them take a certain course. are found in the units. Such ships and craft may not in any other way be diverted from their medical mission so long as they are needed for the wounded. and then only for therapeutic purposes Protection of Medical Units • Medical units shall be respected and protected at all times and shall not be the object of attack (Article 12) • Under no circumstances shall medical units be used in an attempt to shield military objectives from attack (Article 12) • protection to which civilian medical units are entitled shall not cease unless they are used to commit. be respected and protected in the same way as mobile medical units (Article 23) • Any warship on the surface able immediately to enforce its command may order them to stop. that members of the armed forces or other combatants are in the unit for medical reasons (Article 13) Protection of civilian medical and religious personnel (Article 15) • Civilian medical personnel shall be respected and protected • The Occupying Power shall afford civilian medical personnel in occupied territories every assistance to enable them to perform. their humanitarian functions • Civilian religious personnel shall be respected and protected Role of the civilian population and of aid societies (Article 17) • The civilian population shall respect the wounded. and shall commit no act of violence against them Identification (Article 18) • civilian medical personnel and civilian religious personnel should be recognizable by the distinctive emblem and an identity card certifying their status • a Party to the conflict may authorize the use of distinctive signals to identify medical units and transports Medical Transportation • Medical vehicles shall be respected and protected in the same way as mobile medical units (Article 21) • Medical ships and craft. provided that they are given voluntarily and without any coercion or inducement. or in deviation from the terms of.

and such light individual weapons as may be necessary to enable the medical personnel on board to defend themselves and the wounded. long-term and severe damage to the natural environment (Article 35) • prohibited to kill. or may be expected. sick and shipwrecked in their charge. may be ordered to land or to alight on water. in the absence of an agreement or in deviation from the terms of an agreement. after the expiry of five years from the date of the offer and upon due notice to the home country. protection under the rules of international law applicable in armed conflict. and. adopt the arrangements laid down in its own laws relating to cemeteries and graves. in either case. each Party to the conflict shall search for the persons who have been reported missing by an adverse Party Dead Persons (Article 34) • The remains of persons who have died for reasons related to occupation or in detention resulting from occupation or hostilities and those or persons not nationals of the country in which they have died as a result of hostilities shall be respected. Medical aircraft shall obey any such order. Combatants and POW Methods and Means of Warfare • prohibited to employ weapons. to permit inspection in accordance with the following paragraphs. (Article 30) Should a medical aircraft. or over areas the physical control of which is not clearly established. as appropriate. (Article 27) Medical aircraft shall not be used to collect or transmit intelligence data and shall not carry any equipment intended for such purpose (Article 28) Medical aircraft shall not carry any armament except small arms and ammunition taken from the wounded. That State shall make all reasonable efforts to give the order to land or to alight on water to allow the aircraft time for compliance. As soon as such medical aircraft has been recognized by the adverse Party. Where such an offer has not been accepted the High Contracting Party may. and the gravesites of all such persons shall be respected. sick and shipwrecked on board and not yet handed to the proper service. either through navigational error or because of an emergency affecting the safety of the flight. to cause widespread. injure or capture an adversary by resort to perfidy. Part 3: Methods and Means of Warfare. shall constitute perfidy (Article 37) . (Article 28) Medical aircraft flying over areas which are physically controlled by an adverse Party. projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering (Article 35) • prohibited to employ methods or means of warfare which are intended. that Party shall make all reasonable efforts to give the order to land or to alight on water. (Article 31) Missing Persons (Article 33) • As soon as circumstances permit. or to take other measures to safeguard its own interests. it shall make every effort to give notice of the flight and to identify itself. fly over the territory of a neutral or other State not a Party to the conflict. • In the absence of any agreement and if the home country of such deceased is not willing to arrange at its expense for the maintenance of such gravesites. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to. the High Contracting Party in whose territory the gravesites are situated may offer to facilitate the return of the remains of the deceased to the home country. to allow the aircraft time for compliance.• • • • to identify itself and to inform the adverse Party of the circumstances. with intent to betray that confidence. before resorting to an attack against the aircraft. before resorting to an attack against the aircraft. maintained and marked. and at the latest from the end of active hostilities. or is obliged to accord.

while so acting. on behalf of that Party and in territory controlled by an adverse Party. signs or signals (Article 38) prohibited to make use of the distinctive emblem of the United Nations. he shall continue to have such status until such time as his status has been determined by a competent tribunal. red crescent or red lion and sun or of other emblems. nevertheless. he is in the uniform of his armed forces (Article 46) • A mercenary shall not have the right to be a combatant or a prisoner of war (Article 47) Part 4: Civilian Population • the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives (Article 48) • In case of doubt whether a person is a civilian. insignia or uniforms of adverse Parties while engaging in attacks or in order to shield. groups and units which are under a command responsible to that Party for the conduct or its subordinates • Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains) are combatants. that person shall be considered to be a civilian (Article 50) . Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. protect or impede military operations (Article 39) No person parachuting from an aircraft in distress shall be made the object of attack during his descent (Article 42) person who has parachuted from an aircraft in distress shall be given an opportunity to surrender before being made the object of attack. (Article 45) • any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy (Article 46) • member of the armed forces of a Party to the conflict who. except as authorized by that Organization (Article 38) prohibited to make use in an armed conflict of the flags or military emblems.• • • • • • • Ruses of war are not prohibited. Combatants and POW • Any combatant who falls into the power of an adverse Party shall be a prisoner of war. but he shall. that is to say. be given protections equivalent in all respects to those accorded to prisoners of war (Article 44) • A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war and should any doubt arise as to whether any such person is entitled to the status of prisoner of war. (Article 44) • combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack (Article 44) • A combatant who falls into the power of an adverse Party while failing to distinguish himself from noncombatants shall forfeit his right to be a prisoner of war. insignia or uniforms of neutral or other States not Parties to the conflict (Article 39) prohibited to make use of the flags or military emblems. (Article 37) prohibited to make improper use of the distinctive emblem of the red cross. they have the right to participate directly in hostilities. favour. mock operations and misinformation. gathers or attempts to gather information shall not be considered as engaging in espionage if. decoys. unless it is apparent that he is engaging in a hostile act (Article 42) Armed Forces (Article 43) • armed forces of a Party to a conflict consist of all organized armed forces. The following are examples of such ruses: the use of camouflage.

• The civilian population as such.• • • Civilian objects shall not be the object of attack or of reprisals. location. shall not be the object of attack. destroy. or if not as sustenance. In so far as objects are concerned. civilians and civilian objects. for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party (Article 54) • prohibitions above shall not apply to such of the objects covered by it as are used by an adverse Party: as sustenance solely for the members of its armed forces. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. agricultural areas for the production of food-stuffs. Protection of Civilian Objects • Attacks shall be limited strictly to military objectives. purpose or use make an effective contribution to military action and whose total or partial destruction. even where these objects are military objectives. (Article 52) Starvation of civilians as a method of warfare is prohibited (Article 54) In the conduct of military operations. if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Protection of works and installations containing dangerous forces (Article 56) • Works or installations containing dangerous forces. military objectives are limited to those objects which by their nature. long-term and severe damage • Attacks against the natural environment by way of reprisals are prohibited. as well as individual civilians. (Article 52) • it is prohibited:to commit any acts of hostility directed against the historic monuments. then in direct support of military action (Article 54) Protection of the Natural Environment (Article 55) • Care shall be taken in warfare to protect the natural environment against widespread. • Attacks against the civilian population or civilians by way of reprisals are prohibited. offers a definite military advantage. (Article 74) Protection of Civilian Population (Article 51) • The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. dykes and nuclear electrical generating stations. namely dams. to make such objects the object of reprisals. drinking water installations and supplies and irrigation works. . to use such objects in support of the military effort. remove or render useless objects indispensable to the survival of the civilian population. constant care shall be taken to spare the civilian population. were considered as stateless persons or refugees under the relevant international instruments accepted by the Parties concerned or under the national legislation of the State of refuge or State of residence shall be protected persons (Article 73) • The High Contracting Parties and the Parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflicts and shall encourage in particular the work of the humanitarian organizations engaged in this task in accordance with the provisions of the Conventions and of this Protocol and in conformity with their respective security regulations. shall not be made the object of attack. (Article 53) • prohibited to attack. works of art or places of worship which constitute the cultural or spiritual heritage of peoples. (Article 57) • Persons who. livestock. crops. before the beginning of hostilities. such as food-stuffs. capture or neutralization. • The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. in the circumstances ruling at the time.

A demilitarized zone is a zone which fulfils the following conditions: all combatants. (Article 65) • It shall also not be considered as an act harmful to the enemy that civilian civil defence personnel bear light individual weapons for the purpose of maintaining order or for self-defence (Article 65) • Each Party to the conflict shall endeavour to ensure that its civil defence organizations. their personnel. such as children. and any activity linked to the military effort must have ceased. as well as mobile weapons and mobile military equipment. no hostile use shall be made of fixed military installations or establishments. other than occupied territory. as well as mobile weapons and mobile military equipment must have been evacuated. relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken. non-defended localities (Article 59) • The appropriate authorities of a Party to the conflict may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party. (Article 70) . who. buildings and matériel and for civilian shelters. outside their proper tasks. under the Fourth Convention or under this Protocol. no hostile use shall be made of fixed military installations or establishments. and after such warning has remained unheeded. and no activities in support of military operations shall be undertaken. maternity cases and nursing mothers. Protection may. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts. are to be accorded privileged treatment or special protection. no acts of hostility shall be committed by the authorities or by the population. (Article 62) • . is not adequately provided with supplies. cease only after a warning has been given setting. subject to the agreement of the Parties concerned in such relief actions. (Article 66) • The international distinctive sign of civil defence is an equilateral blue triangle on an orange ground when used for the protection of civil defence organizations. a reasonable time-limit. however. their personnel. whenever appropriate. the Parties to the conflict may mark them with a special sign consisting of a group of three bright orange circles placed on the same axis Zones under Special Protection • It is prohibited for the Parties to the conflict to attack. if such extension is contrary to the terms of this agreement. of hostilities or disasters and also to provide the conditions necessary for its survival (Article 61) • Civilian civil defence organizations and their personnel shall be respected and protected (Article 62) • Occupying Power may disarm civil defence personnel for reasons of security. and to help it to recover from the immediate effects. acts harmful to the enemy. shelters and matériel are entitled shall not cease unless they commit or are used to commit. (Article 66) Relief Actions • If the civilian population of any territory under the control of a Party to the conflict. their personnel. buildings. by any means whatsoever. (Article 60) Civil Defense • "Civil defence" means the performance of humanitarian tasks intended to protect the civilian population against the dangers. buildings and matériel are identifiable while they are exclusively devoted to the performance of civil defence tasks. must have been evacuated. The protection to which civilian civil defence organizations. In the distribution of relief consignments. Such a locality shall fulfill the following conditions: all combatants. no acts of hostility shall be committed by the authorities or by the population. expectant mothers. priority shall be given to those persons. (Article 59) • It is prohibited for the Parties to the conflict to extend their military operations to zones on which they have conferred by agreement the status of demilitarized zone.• In order to facilitate the identification of the objects protected by this article.

Protection of Women • Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. and (j) a convicted person shall be advised on conviction or his judicial and other remedies and of the time-limits within which they may be exercised. forced prostitution and any other form of indecent assault. Only in case of imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted. (b) no one shall be convicted of an offence except on the basis of individual penal responsibility. (d) anyone charged with an offence is presumed innocent until proved guilty according to law. if. nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed. (f) no one shall be compelled to testify against himself or to confess guilt. The death penalty for such offences shall not be executed on such women. whenever possible. (g) anyone charged with an offence shall have the right to examine. detained or interned for reasons related to the armed conflict. provision is made by law for the imposition of a lighter penalty. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest. (e) anyone charged with an offence shall have the right to be tried in his presence. in cases where families are detained or interned.• Each Party in receipt of relief consignments shall. (Article 75) • Women shall be the object of special respect and shall be protected in particular against rape. (Article 76) Protection of Children • Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and. (c) no one shall be accused or convicted of a criminal offence on account or any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed. (h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure. they shall. the offender shall benefit thereby. shall have their cases considered with the utmost priority. (Article 77) . Nevertheless. they shall refrain from recruiting them into their armed forces. (Article 76) • To the maximum extent feasible. They shall be under the immediate supervision of women. or have examined. (i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly. after the commission of the offence. (Article 76) • Pregnant women and mothers having dependent infants who are arrested. to the fullest extent practicable. which include the following: (a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence. assist the relief personnel in carrying out their relief mission. in particular. the Parties to the conflict shall endeavor to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants. the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. be held in the same place and accommodated as family units. for an offence related to the armed conflict. (Article 71) Penal Prosecutions (Article 75) • No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure.

(c) practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity. namely. in violation of the relevant provisions of this Protocol. (b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life. or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. This card. their written consent to such evacuation is required. (f) the perfidious use of the distinctive emblem of the red cross. except where families are accommodated as family units (Article 77) • The death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed (Article 77) • No Party to the conflict shall arrange for the evacuation of children. as defined in Article 57. other than its own nationals. Where the parents or legal guardians can be found. the Party arranging for the evacuation. to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or. (Article 78) Protection of Journalists (Article 79) • Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians • They may obtain an identity card similar to the model in Annex II of this Protocol. injury to civilians or damage to civilian objects. children shall be held in quarters separate from the quarters of adults. within the framework of a competent international organization. and when such historic monuments. where there is no evidence of the violation by the adverse Party of Article 53. In each case. (d) making non-defended localities and demilitarized zones the object of attack. as defined in Article 57. works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement. the written consent to such evacuation of the persons who by law or custom are primarily responsible for the care of the children is required. If these persons cannot be found. paragraph 2 (a)(iii). (d) making the clearly-recognized historic monuments. so require. and causing death or serious injury to body or health: (a) making the civilian population or individual civilians the object of attack. which shall be issued by the government of the State of which the Journalist is a national or in whose territory he resides or in which the news medium employing him is located. their safety. the object of attack. Any such evacuation shall be supervised by the Protecting Power in agreement with the Parties concerned. • (b) unjustifiable delay in the repatriation of prisoners of war or civilians.• If arrested. injury to civilians or damage to civilian objects. paragraph 2 (a)(iii). subparagraph (b). red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol • the following shall be regarded as grave breaches of this Protocol. for example. detained or interned for reasons related to the armed conflict. all Parties to the conflict shall take all feasible precautions to avoid endangering the evacuation. the Party receiving the children and any Parties whose nationals are being evacuated. (e) making a person the object of attack in the knowledge that he is hors de combat. based on racial discrimination. works of art and . when committed willfully. Grave Breaches (Article 85) • the following acts shall be regarded as grave breaches of this Protocol. shall attest to his status as a journalist. (c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life. causing as a result extensive destruction thereof. except in occupied territory. when committed willfully and in violation of the Conventions or the Protocol: (a) the transfer by the occupying Power of parts of its own civilian population into the territory it occupies.

places of worship are not located in the immediate proximity of military objectives. (e) In the case of a casual vacancy. At the meeting. which shall transmit it to all the High Contracting Parties. The Second Protocol . if the case demands. Denunciation (Article 99) • In case a High Contracting Party should denounce this Protocol. (d) In other situations. convene a meeting of representatives of those High Contracting Parties for the purpose of electing the members of the Commission. • grave breaches of these instruments shall be regarded as war crimes International Fact-Finding Commission (Article 90) • a) An International Fact-Finding Commission (hereinafter referred to as "the Commission") consisting of 15 members of high moral standing and acknowledged impartiality shall be established. the denunciation shall not take effect before the end of the armed conflict or occupation and not. repatriation or re-establishment of the persons protected by the Convention or this Protocol have been terminated. the High Contracting Parties shall ensure that the persons to be elected to the Commission individually possess the qualifications required and that. on the expiry of that year the denouncing Party is engaged in one of the situations referred to in Article I. Responsibility (Article 91) • A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall. If. in any case. be liable to pay compensation. the depositary shall then. (c) The members of the Commission shall serve in their personal capacity and shall hold office until the election of new members at the ensuing meeting. having due regard to the provisions of the preceding subparagraphs. Article 132 or the Third Convention and Article 149 of the Fourth Convention shall continue to apply to any alleged violation of the Conventions and shall extend to any alleged violation of this Protocol. the restoration of an attitude of respect for the Conventions and this Protocol. (e) Subject to the foregoing provisions or this paragraph. the Commission shall institute an inquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned. the denunciation shall only take effect one year after receipt of the instrument of denunciation. the Commission itself shall fill the vacancy. through its good offices. It shall be responsible for all acts committed by persons forming part of its armed forces. equitable geographical representation is assured. and at intervals of five years thereafter. the provisions of Article 52 of the First Convention. (ii) facilitate. • The denunciation shall be notified in writing to the depositary. however. (f) The depositary shall make available to the Commission the necessary administrative facilities for the performance of its functions. (b) When not less than 20 High Contracting Parties have agreed to accept the competence of the Commission pursuant to paragraph 2. Article 53 of the Second Convention. • The Commission shall be competent to: (i) inquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol. before operations connected with the final release. the representatives shall elect the members of the Commission by secret ballot from a list of persons to which each of those High Contracting Parties may nominate one person. in the Commission as a whole. (e) depriving a person protected by the Conventions or referred to in paragraph 2 of this Article of the rights of fair and regular trial. (d) At the election.

to continue such use. The Third Protocol Protocol additional to the Geneva Conventions of 12 August 1949. Who may use the 3rd protocol emblem • National societies of high contracting parties (Article 3) • International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies. the 1977 Additional Protocols. the 1977 Additional Protocols. and for the same purposes as. and provided that . and relating to the Adoption of an Additional Distinctive Emblem (Protocol III). at all times. and relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II). the distinctive emblems of the Geneva Conventions. composed of a red frame in the shape of a square on edge on a white ground. governing prevention and repression of misuse of the distinctive emblems shall apply equally to the third Protocol emblem. of any misuse of the distinctive emblems mentioned in Articles 1 and 2 and their designations. in time of armed conflict. 8 December 2005 Distinctive Emblems (Article 2) • This Protocol recognizes an additional distinctive emblem in addition to. in using the emblem in conformity with relevant national legislation. 8 June 1977. including the perfidious use and the use of any sign or designation constituting an imitation thereof. Indicative use of the third Protocol emblem (Article 3) • National Societies of those High Contracting Parties which decide to use the third Protocol emblem may. The rules observed in international armed conflicts are also applicable in non-international armed conflicts. where applicable. and their duly authorized personnel (Article 4) • medical services and religious personnel participating in operations under the auspices of the United Nations (Article 5) Prevention and Repression of Misuse (Article 6) • The provisions of the Geneva Conventions and. where applicable. the High Contracting Parties shall take measures necessary for the prevention and repression. for indicative purposes: a) a distinctive emblem recognized by the Geneva Conventions or a combination of these emblems. This distinctive emblem is referred to in this Protocol as the "third Protocol emblem". High Contracting Parties may permit prior users of the third Protocol emblem. choose to incorporate within it. shall conform to the illustration in the Annex to this Protocol.Protocol Additional to the Geneva Conventions of 12 August 1949. • This additional distinctive emblem. The distinctive emblems shall enjoy equal status. or b) another emblem which has been in effective use by a High Contracting Party and was the subject of a communication to the other High Contracting Parties and the International Committee of the Red Cross through the depositary prior to the adoption of this Protocol. In particular. provided that the said use shall not be such as would appear. Notwithstanding the paragraph above. or of any sign constituting an imitation thereof. to confer the protection of the Geneva Conventions and.

the norm remains to be the compensability of every act of taking. according to its verbiage. in the former case the ideally absolute exercise of the home state’s sovereignty becomes limited to a certain extent by the standards of international law. 4. There are many centers of controversy within the larger field of foreign investment law. We must remember that expropriation. but arguably the most contentious issue remains that of expropriation. assumes an international and therefore more complex dimension when exercised against foreign property because (1) the investor state.the rights to such use were acquired before the adoption of this Protocol. The home state is therefore not allowed to unilaterally revoke investment agreements on the basis of its absolute sovereignty over its natural resources. Although investment contracts must be complied with in good faith. one may be guided by the following principles which. The norm remains to be the harmonization of all sources of legal obligations . For every act of expropriation. which would depend on whether the taking was lawful or not. If harmonization is not possible. cannot be deemed to have been completely subsumed under the authority and sovereignty of the home state by virtue merely of their contractual relations (2) the relationship of home and investor states are clearly defined under an investment contract which. being a subject of a foreign state. The context of international expropriation rules is: the home state (where the investment is located) expropriates the rights of ownership of the investor state (who introduced the investment and to whom such investment belongs) who. 2. 3. because such exercise of sovereignty must as much as possible be consonant with the duty to comply with obligations validly entered into. may be said to govern foreign investment law: 1. although recognized as one of the inherent attributes of sovereignty. may rely on international law for the standard of treatment that should be accorded to it. One party to an investment contract cannot therefore renege on the duties it voluntarily assumed on the pretext of complying with a duty or exercising a right if the source of such duty or right comes into conflict with the obligations laid down in the investment contract and/ or customary law. In navigating through the turbulent waters of expropriation rules. FOREIGN INVESTMENTS AND NATURAL RESOURCES Crash Course In Basic Foreign Investment Law33 A. and there are no established absolute exceptions to this rule (meaning there are no cases wherein the home state can be said to be absolutely barred or precluded from expropriating). foreign investment law has undergone a rapid evolution in state practice within the recent past. or whether the parties expressly provided in the investment contract for the processes to be complied with during such expropriatory acts. The home state can therefore take foreign property. it is bound to pay. all states recognize the validity of the exercise of a home state of its prerogative to expropriate. to date. the norm remains to be the expropriability of every property. as an alien. may or may not make reference to international law in cases of conflict. This is the prevailing rule in current state practice and opinion juris. If the home state takes. The only difference lies in the legal consequence of every act of taking. EXPROPRIATION LAW As one of the most dynamic fields of international commercial law today. The home state may exercise its prerogative 33 Thanks to ceejay balisacan for this portion .

The investment contract may be primarily the law between the parties. An example of such regulatory measures is the imposition of technical requirements upon a particular industry to comply with environmental standards. international legal obligations would inevitably come into play. but the exercise of police power was done not to pursue a public policy but to exercise a governmental duty to abate nuisances. no compensation is due.to expropriate. In practice. the taking of property is done to avert or stop a clear and present danger to the public. what the home state pays the investor would usually be a matter of negotiation and conditioned upon the financial circumstances of the home state. a public purpose is being served. The fact that compensation must be paid is generally accepted as a norm. In any case. and the Vienna Convention is recognized as a codification of international customary norms regarding treaty compliance. in such cases. regulatory takings35. As a consequence. the only point of contention is the QUANTUM of such compensation. it is not compensable because regulatory measures are not supposed to take property. as compensation. 37 The Vienna Convention on the Law of Treaties codifies the principle of pacta sunt servanda. the home state cannot be permitted to undertake an expropriation in such manner as to be violative of other international legal obligations like (1) the duty to observe pacta sunt servanda under customary law 37 (2) the duty to accord foreign investors with the international minimum standard of treatment under customary law38 (3) the duty to expropriate for a public purpose. on a non-discriminatory basis. would have the effect of depriving the investor of a portion of its property. but since the power of taxation is recognized as plenary in nature. Notice that in both police power and expropriation. 35 In enacting legislations designed to protect the interests of its citizens. However. as provided expressly in the investment contract (2) a necessary legal consequence of the expropriatory act. any incidental taking that would result cannot be compensable. they merely impose standards by which such property may be utilized. 4. since the taking was done to stop an existing danger and to punish the offending factory owner. the home state may impose certain regulatory measures which. the home state may be required to pay compensation in an amount that would approximate the value of the property taken and the damage caused by the unlawful taking. something which the home state has a duty to prevent. regardless of the source. although such exemptions are found in the writings of publicists and no authoritative decision has yet been rendered recognizing these exemptions as such. In the latter case. both would have to be guided by the obligations which both are bound to under international law. . where the taking was adjudged to be unlawful. The examples are the taxing power of the state34. but it cannot do so without compensating the investor state or at least reinstating the status quo ante (meaning the considerations paid for and benefits received under the contract would be restored to the respective parties). and with payment of just compensation under customary law 39. by virtue of the fact that investment agreements are often concluded between states or between private entities pursuant to a trade agreement concluded by their respective states. The minimum standard is embodied in most investment treaties in force today. Even if such a measure would effect a deprivation of ownership rights. the norm remains to be enforceability of every international legal obligation. from the time the investor state introduces the foreign property into the home state’s territory. 36 Police power measures are distinguished form expropriatory acts in that the former assumes a more immediate dimension. There is therefore a difference between expropriating a factory because the government wants to nationalize the manufacturing industry and abating the operations of the factory because of its harmful emissions. 38 Such minimum standard is nothing more than the “reasonable” treatment recognized by all nations viewed from the perspective of an objective third party observer. There are some cases where the norm of compensability is believed to be inapplicable. and police powers36. How much should be paid is often a subject of debate and there is as yet no fixed rule in determining the value of compensation that must be paid. the investor state may constructively be deprived of a portion of its property through profits. the consideration for the contract plus other incidental adjustments). It may be (1) a necessary legal consequence of the expropriatory act. in which case the contract may be enforced or. when applied. The duty to pay compensation may take various forms. or (4) in the form of punitive damages. and was enunciated by the General Claims Commission constituted by the US and Mexico in the Neer Claim. As such. if performance is already impossible. the home state chooses to reinstate the status quo ante by giving back. 34 In the process of taxation. 39 These three requirements can be found in almost all investment treaties in force and can therefore be argued as constituting internationally recognized norms relating to the validity of expropriatory acts. however. in accordance with customary law (3) an alternative form of extinguishment of a legal obligation (instead of performing the obligations under the contract.

non-unilateral abrogation without reinstatement of the status quo ante. In such cases the owner shall be paid appropriate compensation. 14 December 1962 To nationalize. The following survey of case law on expropriation represents the views taken by international tribunals in interpreting the different operative terms of the aforequoted texts: 40 These general principles of law recognized by all civilized nations pertain to such commonly-held notions as good faith. in some instances. another UN GA Resolution backed by developing countries. which was overridden. according to Walde. 31 (1974) 50 As Harris notes. (ARTICLE 4) Foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith. taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. codified categorically as articulating general principles of law. C) ---Charter of Economic Rights and Duties of States GA Res. States and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in accordance with the Charter and the principles set forth in the present resolution.or (4) the duty to observe elementary rules of contractual relations as embodied in general principles of law relating to contracts40. expropriation or requisitioning shall be based on grounds or reasons of public utility. 3281(xxix). and unjust enrichment. UN GAOR. was simply incompatible with the tendency towards promotion of foreign investment. These principles are found in all established legal systems and are. 29th Sess. by the historical inclination towards market liberalism. expropriate or transfer ownership of foreign property. Subpar. 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. No. In dealing with the issue of expropriation.. both domestic and foreign. Par. 2. (ARTICLE 2. in which case appropriate compensation should be paid by the State adopting such measures. The formula of developing states. like in the case of the “Principles of International Commercial Contracts” codified by the International Institute for the Unification of Private Law. (ARTICLE 8) ---United Nations Resolution on Permanent Sovereignty over Natural Resources Adopted by the United Nations General Assembly. one must be guided by basic UN texts touching on expropriation: Nationalization. security or the national interest which are recognized as overriding purely individual or private interests. it shall be settled under the domestic law of the nationalizing State and by its tribunals. The same is true with the Declaration on the Establishment of the New International Economic Order. the “Charter” has not attained the status of custom because developed states have effectively mounted a resistance to the clause which does not require a “public purpose” precondition to expropriation. according to him. unless it is freely and mutually agreed by all States concerned that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means. Supp. . In any case where the question of compensation gives rise to a controversy. the latter requiring adequate and stable protections as an inducement to risk-averse foreign investors.

a nationalization cannot prevail over an internationalized contract. and were blamed to be the cause of the loss of the Islands. which allowed BP to operate in Libya for the extraction. but may only claim compensation by way of damages” BP Exploration Company (BP) had a contractual agreement with the Government of Libya (Libya). therefore.000 sq. The validity of the actuations of both parties. the Government of Iran occupied 3 Islands in the Gulf (Abu Musa. in respect of the international law of contracts. if a state bound itself to a contract which is international in character and burdened with stabilization clauses. Libya “The home state may expropriate if it wants to. such state is deemed to have waived its prerogative to expropriate contrary to the terms of such contract. because the same law also recognizes the power of a state to commit itself internationally. and arbitration clauses of the concession contract are sufficient evidence that the contract has been “internationalized”.e. in this case. which nationalized the operations of BP in Concession 65. and not based on its compatibility with Libyan law. any disputes arising from the interpretation of the terms of the agreement (including alleged breaches of the stabilization clause) shall be submitted to international arbitration. especially by accepting the inclusion of stabilization clauses in a contract entered into with a foreign private party…Thus. however. BP v. rights. Further. On November 29 and 30 of 1971. has to be measured against international standards. the stabilization. the investor state cannot compel the home state to continue performing the latter’s obligations. the expropriatory act is set aside and Dupuy awarded a remedy of restitutio in integrum – meaning Libya was compelled to perform its obligations under the concession contract. governing law. including such of those principles as may have been applied by international tribunals”.Texaco v. under the concession contract. According to sole arbitrator Dupuy. kms. The nationalization law . though the treaty which provided such protection would last only until Nov. the Arabian Gulf Exploration Company. and then transferring these to a new company. Libya “An ‘internationalized’ contract with a stabilization clause precludes the exercise of the expropriatory prerogatives of the home state” In 1973 and 1974. even under wrongful circumstances. These Islands were still under British protection. In December 7 of 1971 Libya passed the BP Nationalization Law. did not react to the occupation. Since. the expropriation was deemed to have been contrary to the stabilization clause of an internationalized contract. when it does. i. The law was passed in reaction to Britain’s failure to act on the Iranian occupation of its three protectorate islands in the Gulf. The area in which BP was allowed to operate was called Concession 65. 30 1971. Specifically. Libya decided to nationalize the properties and assets of two American companies which were granted concession contracts to exploit and extract oil. assets and shares in the operations conducted in the said area. Internationalization of contracts results in the protection of investors against the risks of contractual modification or abrogation resulting from changes in municipal laws or other governmental measures. processing and export of petroleum. The British. containing stabilization clauses…” Therefore. meaning subjected to the standards of international law and taken out of the ambit of domestic law. and the Greater and Lesser Tumb). restoring to the State ownership of all properties. Dupuy states that “the recognition by international law of the right to nationalize is not sufficient ground to empower the state to disregard its commitments. in the heart of the Sarir desert. it has an area of over 8.. The contention centers on two clauses in the concession contract: (1) the “stabilization clause” which provides that “the contractual rights expressly created by this concession shall not be altered except by mutual consent of the parties” and (2) the “governing law” clause which provides that “ the concession shall be governed by and interpreted in accordance with the principles of the law of Libya common to the principles of international law and in the absence of such common principles then by and in accordance with the general principles of law. to allow Texaco to extract oil.

1972. Further. the arbitrator declared.provided that the State should pay compensation to BP. The conclusion is therefore unequivocal – the home state may expropriate when it desires to. The wrongfulness of the expropriatory act is important to establish because this would determine the quantum of compensation that would be awarded to the injured party. such situation. Libya’s taking of BP’s property. The all-important portion of the decision which applies to all expropriation cases involving a sovereign state is: “when by exercise of sovereign power a State committed a fundamental breach of a concession agreement by repudiating it through a nationalization of the enterprise and its assets in a manner which implies finality. the same conclusions as above were inevitable – no support for the claim that the injured party may deem the contract as continuing to be valid and that restitutio in integrum is proper. at the most. Chorzow Factory Case . Until and unless such injured party elects to do so. As a result of the Nationalization Law (which was rapidly implemented) BP’s operations in Concession 65 were brought to a complete halt and its staff were immediately excluded from the premises and facilities. The arbitrator stated that under international law. it can only be compelled to pay damages. the contract should be deemed as valid and binding and it can compel the other party to continue performing its obligations under it. The decision of such a committee was to be final. The oft-quoted portion of the decision is: “The BP Nationalization Law. which was to be determined by a committee established by the Minister of Petroleum. who will then inform BP about it within 30 days of issuance. the arbitrator then turns to international law. and actions taken thereunder. In this case. The Arabian Gulf Exploration Company had taken over Concession 65. The arbitrator first disposed of the issue of (1) whether or not the alleged injured party to a concession agreement has the right to deem the contract as valid and enforceable even after the alleged wrongful expropriation and (2) whether or not the injured party may claim reparations in the form of specific performance/ restitutio in integrum. However. constitute a fundamental breach of the BP Concession as they amount to a total repudiation of the agreement and obligations of Libya under such agreement. Finding no concurrence between Libyan and international law regarding the declarations sought to be obtained by BP. rights and interests clearly violate Public International Law as it was made for purely extraneous political reasons and was arbitrary and discriminatory (as other concessions have not been touched). The bases for this ruling are rules of applicable systems of law too elementary and voluminous to require or permit citation. Under international law. It was also confiscatory as no offer of compensation was made in two years”. does not find application in a case where the other (expropriating) party is a sovereign state. but his sole remedy is an action for damages”. the home state can still not be entitled to reinstate the operability of the contract. no action on compensation was taken until February 13. it is important to note that the circumstances under which the expropriation took place in this case constitutes one of the first instances where an arbitral court classified state actions as (1) in breach of obligations (2) discriminatory and (3) confiscatory. The Concession contract in this case contains the same governing law clause as that in the case of Texaco above – that Libyan law would be applicable only to the extent that it coincides with international law. However. and to be communicated to the Petroleum Minister. according to the arbitrator. and even if such expropriation is done in breach of the contract. The right to deem the contract as continuing to be binding and the consequent right to demand restitutio in integrum is therefore not available to BP under international law. A three man committee was formed but it was only in September of that year that BP received communication from the committee. the wrongful breach of a contract would entitle the injured party to terminate the contract at its option. damages were awarded by the arbitrator. However. asking its remarks and viewpoints on the matter of compensation. to admit no appeal. This pronouncement is important because it recognizes the almost plenary power of the home state to expropriate – that the home state cannot be precluded under international law to expropriate when it wishes to. the concessionaire is not entitled to call for specific performance by the Government of the agreement and reinstatement of his contractual rights. by Libya.

the unsatisfactory quantum of such compensation on the part of the investor would not render the taking unlawful” In 1973 and 1974 Libya nationalized both LIAMCO's rights under the concessions and certain of its oil drilling equipment. However. arguing that Libya is not immune under the Foreign Sovereign Immunities Act (FSIA). that the Chorzow Standard does contemplate restitutio in integrum as a remedy for unlawful expropriations. that even should the Court find jurisdiction. but when it does unlawfully. in all probability. although investor states do settle in time to mere payment of compensation. Instead it mounts a two pronged defense arguing first that the Court is without jurisdiction. Libya does not challenge the validity of the underlying award. it never hurts to have the Chorzow Standard as the starting point of every negotiation as far as the investor state is concerned. however. forgone profits. maintaining that the nationalization superseded the concessions altogether. future profits. and damages). committed profits. incidental expenses. LIAMCO invokes the jurisdiction of the Court pursuant to American Law on “Actions Against Foreign States”. because it is sufficiently vague as to evade exact quantification but sufficiently liberal and inclined towards investors’ interests as to be adequately justificatory of claims of full compensation (“full” meaning nearly everything – the value of the property.” (3) “Contractual rights are not property. it would have to pay a large price – either to continue being bound to the obligations under the contract. please refer to earlier reference under “Sources of International Law”. LIAMCO further contends that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention) requires the confirmation of the award. it should refrain from enforcing the award under the Convention . or be liable for damages. The Chorzow Standard provides: “The essential principle contained in the actual notion of an illegal act . and therefore classified as wrongful under international law. It is often invoked by investor states to justify their claims of compensation.“The home state may expropriate. or if this is not possible. (2) Award of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law”. The oft-quoted portion of the decision is now known as the “Chorzow Standard” in international law. payment of a sum corresponding to the value which a restitution in kind would bear. brings action to the District Court of the District of Columbia to confirm and enforce such ruling. Libya. it is important to recall that the expropriation undertaken by Poland against German interests in this case was made in violation of a treaty. have existed if that act had not been committed. Following unsuccessful negotiations regarding compensation. and repudiation of contractual obligations is not a taking. as far as possible. or both” For facts of the case. This case is often quoted in expropriation cases because it provides for the quantum of compensation required to be paid in cases of wrongful takings by the home state. LIAMCO rejected the terms of the nationalization and initiated proceedings under the arbitration clause. after obtaining a favorable ruling. for purposes of this section. within the meaning of expropriation law” (4) “Compensability. Note.is that reparation must. Liamco v. (1) Restitution in kind. as in the BP case. refused to participate in the Geneva proceedings. LIAMCO. contrary to subsequent arbitral decisions precluding the propriety of any such remedial award. once satisfied. and of course. renders a taking lawful under international law. The continuing validity of this assertion is still a matter of debate. Libya (1) “Sovereign immunity is waived if the home state consents to litigate arbitral claims anywhere in the world” (2) “Acts of state cannot be passed upon in judgment by any foreign tribunal.a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals . In bringing the suit. wipe-out all the consequences of the illegal act and re-establish the situation which would. and second.

as in this case. . by reason of foreign policy. any act that would result in the deprivation of ownership rights and therefore effect an indirect or virtual taking would be classified as expropriation nonetheless” (2) “Expropriation does not need the physical taking of property to be deemed as such. suggests otherwise. This case was brought before an American Court not because that is where it will be litigated but because LIAMCO wanted the arbitral decision rendered in Geneva to be confirmed in the United States. including the United States. and made two pronouncements relevant to expropriation law: the “taking” requirement of the Hickenlooper amendment was not satisfied because (1) contractual rights are not “property”.because of the act of state doctrine. alleging that the acts of the Iranian government is an expropriation of its property rights under the contract. Starett files a suit for compensation. would take it as a given that an act of state is valid and legitimate. by an act of that state in violation of the principles of international law. all the parties to the dispute. Second. courts must not decline on the ground of the act of state doctrine to decide the merits of a claim of title or other right to property . done within its own territory. First. any deprivation of ownership rights closely related to the physical property would be classified as expropriation nonetheless” In 1974. caused the project to fall behind schedule and Shah Goli to be in financial difficulties. the taking is lawful. within the meaning of the law. Starett. the District Court dismissed LIAMCO’s claim as being not justiciable. all other points of issue may be litigated except whether or not the home state is justified in expropriating. as far as American law is concerned. It only means that in litigating a claim. to preclude American courts from doing so. In January 1980. it has acquired jurisdiction over Libya notwithstanding its supposedly immune status as a state because of the arbitration clause (which provides that “arbitration should take place either where the parties agreed. this case is relevant in expropriation law because it recognizes that measures falling within the “act of state” doctrine 41 cannot be questioned by another foreign state. coupled with general revolutionary disruption and government intervention (making Shah Goli forgo contractual payments and freezing Shah Goli’s bank accounts). . an Iranian subsidiary company. acts of state may be passed upon if such would amount to a confiscatory taking violative of international law and the President of the United States does not exercise his prerogative.” 42 The Hickenlooper Amendment provides that unless the President. Under American law. and the courts of one country will not sit in judgment on the acts of the government of another. for foreign policy reasons. Under this consideration. particularly the Hickenlooper Amendment to the Foreign Assistance Act42. The project was proceeding on schedule when their harassment during the 1979 revolution caused the withdrawal of the American and other foreign personnel working on it. . 41 The doctrine provides that “Every sovereign state is bound to respect the independence of every other sovereign state. as long as there exists a mechanism for compensation within the law of the home state. 1959. Starett Housing Case (1) “Expropriation does not need a law to be deemed as such. The District Court of the District of Columbia made several pronouncements relevant under international law. It does not mean that the court before which a case is brought can be deprived of jurisdiction properly acquired. operating through Shah Goli. and the “violative of international law” requisite was also not satisfied because (2) a taking is not rendered violative of international law simply because the investor is not satisfied with the amount of compensation the home state is prepared to pay. and the repudiation of contractual obligations not a “taking”. This. including the court.based upon (or traced though) a confiscation or other taking after January 1. In short. As such. it held that the arbitration clause of the concession contract between LIAMCO and Libya is sufficient to bring disputes arising under it within the ambit of international law. entered into an agreement with an Iranian development bank to buy land in Iran and build houses upon it. Iran placed Shah Goli under control of a temporary manager. or where the arbitrators might agree”) that contemplates arbitration anywhere in the world.

[c] it covers a limited period. in departure from the LIAMCO view. The only limitations (and not absolute exceptions) to this rule are three-fold: States may pledge not to nationalize but only if: [a] it is for a serious undertaking. Kuwait v. However. The Tribunal. technically speaking. primarily aimed at physical property.” In this case such manner of interference was committed by the Iranian government when it undertook acts leading to the bankruptcy and placement under receivership of Shah Goli. laid down the doctrine that expropriation may be direct or indirect. In this case. in defense of its actions. contractual rights are deemed to be property for purposes of expropriation law. Aminoil question the legality of the termination under the “stabilization clauses of the contract. Kuwait. even though the State does not purport to have expropriated them and the legal title to the property formally remains with the original owner. and such limitations must be expressly provided for in the contract” Aminoil is an American company which was granted an oil concession by Kuwait.” Kuwait.” Art 11(B) states that “save as aforesaid this Agreement shall not be terminated before the expiration of the period specified…except by surrender as provided in Article 12 or if the Company shall be in default under the arbitration provisions of Article 18. invokes the principle of sovereignty over natural resources which. or through a deprivation of ownership rights closely related to a physical property. and in any case any such limitations must be embodied in the contract. according to it. is an imperative rule of jus cogens. “effective expropriation”. the limitations to the exercise of expropriatory prerogative must be confined only to a limited period covering serious undertakings. the arbitral court in Aminoil expressly reiterates that there is no rule in international law absolutely precluding a home state from expropriating. consideration must be given to whether the investor has been adequately protected by express provisions of the contract relating to compensation. by Decree. The provisions prohibit a nationalization of the oil venture. In contrast with Dupuy’s arbitral decision in the Texaco case. and that it may be undertaken through a literal taking of a physical asset. the Starett case is also significant because. have been deemed to comprise also rights of a contractual nature closely related to the physical property”. deletions or additions. [b] it is expressly stipulated for. unlike in the Texaco. or “act tantamount or equivalent to expropriation”. a home state may validly waive its expropriatory prerogative only for a limited time (the prohibition against taking cannot be perpetual). Aminoil “A home state may not be precluded from expropriating. However the tribunal made a pronouncement that “it is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated. and right to proceeds. no law was passed by Iran expropriating the assets of Starett. the concept has been used interchangeably with terms such as “virtual expropriation”. This principle prohibits States from giving guarantees against the exercise of the public authority over natural resources. in sum. In considering the legal consequences of an expropriatory act. if any. no expropriation took place because. Starett’s co-venturer. only upon serious undertakings (other investments of a smaller scale may be expropriated more expeditiously). legitimate investment-backed expectations in the completion of the venture. The contractual rights referred to by the Tribunal includes such intangible assets as management rights. The compensability of an expropriatory act strongly militates against the presumption that the home state can take .The Starett Housing case is a landmark case in foreign investment law because it recognized the concept of an “indirect expropriation”. and therefore any limitations to its exercise cannot be implied. BP.” particularly Art 17 and Art 11(B). Secondly. terminated the agreement before its expiry and transferred the concession assets to itself. Art 17 states that “no alteration shall be made in the terms of this Agreement…except in the event of the Shaikh and the Company jointly agreeing that it is desirable in the interest of both parties to make certain alterations. The expropriatory power of the state is the general rule. Iran effectively has taken the property rights of Starett in the housing project and deprived it of its reasonable expectations as an investor. Upon doing so. or LIAMCO cases. The doctrine of the case is that “measures of expropriation or taking. the tribunal recognized that. In current usage. In short.

the case reiterated the doctrine in LIAMCO that a taking satisfies international standards of lawfulness when it provides for a mechanism for the payment of compensation. the Amoco case is also instructive with regard to the issue of discriminatory takings. as evidenced by the progressive development of Kuwaiti law with a view to taking an active role in the development of its own resources within its territory. the fact that the entire economic branch to which an enterprise belongs was not expropriated is not necessarily a badge of discriminatory intent” (4) “A home state is not bound by obligations contracted by private entities within its territories. and the Tribunal merely awarded compensation to Aminoil. An expropriation is therefore deemed lawful as long as provision for compensation exists. a clear duty on the part of the home state must be embodied in the contract” Amoco is a Swiss company and a wholly owned subsidiary of Standard Oil. an Iranian company jointly owned and managed by Amoco and NPC. It is therefore not needed for the expropriating home state to prove that it wanted to exercise ownership over the property taken for the use of the public. each contracting party having 50% shares in the profits to be realized.property without necessary legal consequences in the exercise of its sovereignty. and not merely for public utility” (2) “Compensability is the norm. Later. Secondly. subject to the submission of any dispute to arbitration” (3) “Takings may be done in successive stages. the Khemco Agreement. For any such obligation to arise. and so it cannot be said that the expropriation was unlawful per se because it did not grant compensation in such manner and within such time as to satisfy the investor. the home state may transfer ownership of the property for the use of a private entity. the process or quantum of compensation is not. as a financial venture entered into by the Kuwaiti government for its governmental purposes. any disagreement over the quantum of which may be submitted for arbitration. was declared null and void by the Iranian government following the 1979 Iranian revolution and the implementation of Iranian legislation (the Single Article Act of 1980) that was intended to complete the nationalization of the Iranian oil industry. Iran (1) “Expropriation may be done for a public purpose. and American company. Lastly. to form Khemco. In 1980. The venture sought to process and sell Iranian natural gas. . It considered that the undertaking (the extraction of oil) was at first. the expropriation in this case was not found to be unlawful. that is. Thirdly. although it may be unsatisfactory to the investor. What would make an act of taking unlawful under international law would be the absence of any provision for compensation. The first doctrine of foreign investment law that was pronounced in Amoco is that the ground for expropriation which was formerly limited to public utility (as expressed in the Chorzow case) has been expanded to the more general term public purpose. or even let the property lie idle or destroy it – in any case there would be an expropriation. which was by its terms valid for 35 years. The Tribunal also interpreted Arts 17 and 11(B) as not absolutely forbidding nationalization because it impliedly requires that nationalization shall not have a confiscatory character. the Tribunal gave due credit to the fact that the act of Kuwait was in pursuance of a legitimate state policy. directed to narrow patrimonial ends. As such. Amoco entered into a joint venture with NPC. It is enough that the taking be done in pursuance of some public purpose43. an Iranian company controlled by the Iranian government. Amoco International Finance v. Under the Single Article Act. a special commission will be constituted to determine the amount of compensation due to the foreign investor. Amoco did not avail of this remedy. the Tribunal actually found that there was a discriminatory expropriation because it was undertaken only against BP and not against other similar ventures of 43 By this standard. In the BP case. it became an essential instrument in the economic and social progress of the State. Amoco filed a suit for compensation for the taking of its interests in Khemco.

According to the tribunal: “where the taking is through a chain of events. thereby negating the propriety of any award of damages. such a conclusion is warranted whenever events demonstrate that the owner was deprived of fundamental rights of ownership and it appears that this deprivation is not merely ephemeral. Iran (1) “Expropriation is any act which would deprive the investor of his ownership rights permanently” (2) “Focus should be on the effect of the expropriatory act on the investor. or to both.” Also. The Tribunal in this case recognized that the act of expropriation which is the prerogative of the home state may be undertaken in such manner as to be determined by the home state in pursuance of its policies. The Phillips case is significant in that it reiterated the doctrine on indirect expropriation established in the Starett case. Said the Tribunal: “Reasons specific to the non-expropriated enterprise. further qualified the concept of indirect expropriation by pronouncing that (1) expropriation need not be of contractual rights closely related to a physical property. absent any evidence of patent bad faith or discriminatory designs. the Iranian government cannot be said to have expropriated Amoco’s property in breach of its obligations because no obligation exists on its part. Said the tribunal: “While assumption of control over property by a government does not automatically and immediately justify a conclusion that the property has been taken by the government. the Tribunal ordered Iran’s compensation of Amoco as a necessary legal consequence of the taking. In this case. This case. especially with regard to forgone profits and damages. The company then sued for recovery of compensation form the Iranian government. Imam Khomeini sparks a revolution in Autumn of 1978 and it succeeds in toppling over the past regime in February 1979. or to the expropriated one. the important doctrine laid down in this case is that stabilization clauses must be clear in demanding from the home state obligations which the investor state can enforce against it. the taking will not necessarily be found to have . Absent such unequivocal stipulation in the contract. The intent of the government is less important than the effects of the measures on the owner. it is merely required that the taking amount to a deprivation of ownership rights (2) expropriation must be done with finality and not merely ephemeral (3) the focus must be on the effect and impact of the expropriatory act on the investor and not on the intention of the home state or the manner in which the expropriation is undertaken – this heavy focus on the effect of expropriatory acts on the investor more than the government interest pursued will later be known as the “sole effect doctrine” in foreign investment law. and the form of the measures of control or interference is less important than the reality of their impact. The non-expropriation of an entire branch of economic activity is not in itself discrimination. In conclusion.other nationalities. no clear obligation was imposed by the concession contract on the Iran government. the home state cannot be deemed to have been a party to the contract and cannot therefore be held liable under its terms. Phillips v. and such expropriation was classified as a lawful one under international law. This is essential in the computation of compensation. may justify such a difference of treatment. thus requiring compensation under international law. The Tribunal in the Amoco case did not rule that an expropriation is per se unlawful because it is directed only against a particular entity within a larger industry. however. There was no showing that the contract contained a “stabilization clause” that would have obligated the Iranian government to insulate the contract from any change in domestic law that would affect the contract’s operation. as observed by the arbitral tribunal in AMINOIL. Furthermore. the Phillips case is significant when it comes to determining the reckoning point at which the operative act of expropriation is deemed to have taken place. and not on the intention of the home state” (3) “The reckoning point of expropriation is that point at which the deprivation of ownership rights becomes irreversible” Phillips entered into a Joint Structure Agreement with Iranian Government to exploit oil. a coherent policy of nationalization can reasonably be operated gradually in successive stages”. As such. Lastly. The revolutionary government decides to withdraw all oil contracts with foreign companies under the guise of Nationalization/Anti-western sentiment.

We must remember that the WTO established not only a policy of progressive lowering of tariffs. The implementation of the WTO Agreement in the country. From this discussion groups came the General Agreement on Tariffs and Trade. the greater the level of development that all states can achieve. This last pronouncement of the Court was uncalled for at the very least. As expected. Ultimately. it is binding on the Philippines by virtue of the Constitution’s Incorporation Clause (4) the international free trade regime embodied in the WTO Agreement represents the best possible economic option for the Philippines. it also put in place certain measures of economic enforcement to ensure that trade between nations are as equal as possible.occurred at the time of either the first or the last such event. however. but also made the unsolicited pronouncement of the trade regime’s wisdom and propriety. and that international trade would be more facilitative of development if it were to be undertaken under a regime of progressively decreasing tariffs and strictly enforced mechanisms to safeguard against unfair trade practices. FREE TRADE44 The study of foreign investment law would not be complete without delving into one of the most progressive fields of international commerce – free trade. again with the underlying assumption that trade is essentially beneficial. it being a statement of policy which the Court has no competence to make. as the manifestation of the states’ desire to conduct multilateral trade with a view to establishing an economic order where tariffs are progressively decreased and unfair trade practices are offset by economic enforcement measures. many contentious controversies have confronted the country primarily in the field of protecting against unfair trade measures of other states. as a rule. is always beneficial. the greater the economic benefits to be reaped and. countervailing measures. From the Bretton Woods agreement arose discussion groups the members of which agree to conduct international trade under mutually favourable terms using a “most favored nation” framework. Rising from the ashes of World War II. These economic enforcement measures are antidumping measures. since the pacta sunt servanda doctrine is part of international law. Countervailing Duties. the Supreme Court has had occasion to declare that (1) the Filipino-First policy purportedly enshrined in the Constitution is just a hortatory provision which cannot be legally enforced as a matter of right without any supporting legislation (2) the Philippines does not adhere to an isolationist economic policy and is in fact accommodative of international trade arrangements that are anchored on the policy of equality and reciprocity (3) the WTO Agreeement constitutes a treaty obligation which the Philippines is bound to perform under the principle of pacta sunt servanda. and safeguard measures: 44 This portion is based on notes from Sir Harry’s discussion in class and the article “The Philippines and the WTO: Survey of Current Practices with Emphasis on Anti-Dumping. the Supreme Court not only solidified the argument that the WTO Agreement is a valid treaty obligation. The underlying basis for the widespread promotion of liberal market paradigms in the international economy is the proposition that trade. as such. is not without issue. the nations of the world came to the agreement that accelerating the recovery of devastated states would entail the promotion of an international mechanism that would facilitate the flow of international capital from those who have it to those who need it most. 1. . B. The Philippines is arguably the only jurisdiction among all the states signatories to the WTO treaty wherein the legality of the treaty itself has been pronounced by the highest court of the land. and the more unhampered and equal the trade is. therefore." or when it becomes an "irreversible deprivation”. Angara. but rather when the interference has deprived the Claimant of fundamental rights of ownership and such deprivation is "not merely ephemeral. and Safeguard Measures” by Sir Harry published in the Asian Journal of WTO and Health Law and Policy (Vol. 2006). In deciding the case the way it did. ultimately. In the case of Tanada v. The Bretton Woods regime established from such agreement became the precursor of modern-day international free trade. The “irreversibility point” refers to that point where the exercise of ownership rights of the investor has already been rendered absolutely impossible by the acts of the home state. the World Trade Organization was born. considering the prevailing international economic context.

2. It is also relevant that one of the recognized valid grounds for the imposition of trade restrictions are the so-called Sanitary and Phytosanitary Standards (SPS) which allows an importing state to impose trade measures to protect human. countervailing measures may be employed by the importing state to make the product reflect its actual value taking into consideration the subsidy that its manufacturers have received. Brazil) – the application for remedies must follow the process set out in the treaty. animal or plant life or health in the territory of member states either from (1) entry . in absolute or relative terms. contaminant toxin. Tuna Case (US). or disease-causing organism. Such measures must be undertaken only after it was proven that (1) a dumping exists (2) there was an actual injury to a domestic industry (3) there is a causal link between the dumping and the injury. (2) countervailing measures – a subsidy is a financial contribution by a government where there is either a direct fund transfer. 4. the case should have been brought before the GATT and not the WTO because the measures were imposed under GATT. to the product domestically manufactured. and that the product in question is a “like product”. Desiccated Coconut Case (Philippines v. How exactly the arbitration panels and the Appellate Body of the WTO (which were established to rule on disputes between states arising from the interpretation of the Agreement’s provisions) dealt with cases and disputes arising from the adoption of such economic enforcement measures is also a fertile topic. Dumping or unfair subsidy need not be proved to justify resort to these measures. debt servicing. or when a government provides goods and services. Such measures may be undertaken only if it was proven that (1) a dumping exists (2) there was an actual injury to a domestic industry (3) there is a causal link between the dumping and the injury. a revenue which otherwise due is forgone. and inefficient and uncompetitive technology. in this case. establishment or spread . (4) to prevent or limit other damages in the territory of member states arising from the introduction. Anti-dumping measures seek to equalize trade in such manner as for the commodity to actually reflect its value from the standards of the exporting state.(1) anti-dumping measures – there is dumping when the export price of a commodity is less than its normal value in the exporting state. Reformulated and Conventional Gasoline Case (US) – the US must impose trade restrictions that are in conjunction with restrictions on domestic production or consumption and must impose them against not only imported but locally harvested products. relevant decisions and the essential portions of their rulings interpretative of the Agreement’s provisions will be considered: 1. or spread of pests or diseases (2) risks arising from additives. (3) from a risk arising from a disease or pest carried by an animal or plant. Here. the measures must be initiated by 25% of an industry affected. 3. Portland Cement Case – the Tariff Commission of the Philippines is independent and its factual findings are given great weight by the Court. it being enough that surge in imports is proven alongside a serious injury or threat of injury that the former has caused or will cause. (3) safeguard measures – safeguard measures are employed when there is a showing of a dramatic increase in the imports of a particular commodity. establishment. Shrimps Case (US). In such cases. Cold Rolled Coil Sheets from Taiwan – the injury proven was not causally linked to the dumping measure but a result of such extraneous factors as the Asian Financial Crisis. In addition.

Bananas Case (US v. Beef Hormones Case (US v. The same tariff dues must be imposed on similar products.of pests. Any challenge to the validity of SPS measures must be anchored on the proposition of an available alternative to the measure being challenged that would (1) provide the same or a higher protection than that given by the challenged measure and (2) be less restrictive of trade. regardless of the origin. 5. EU) – quantitative trade preferences are violations of the most favored nation provision of the WTO Agreement. . are subject to the showing of sufficient scientific basis and the undertaking of risk assessment measures. The imposition of these measures. however. EU) – risk assessment is a prerequisite in the imposition of SPS measures 6.

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