PUBLIC INTERNATIONAL LAW

Finals Reviewer
Prof. H. HARRY L. ROQUE

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

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

UP Law B2009 Reviewer (Karichi Edition)  

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

y

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

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

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

1

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

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

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

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

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

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

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

y

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

b. c. d.

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

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

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

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

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

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

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

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

and of the elements of fact at its disposal. Furthermore. in view of the unique characteristics of nuclear weapons. Turning to the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons. A modern version of that clause is to be found in Article 1. Another view holds that recourse to nuclear weapons. 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. In application of that second principle. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry. reveals the desire of a very large section of the international community to take. international law leaves no doubt that the principle of neutrality. as well as the fact that the denunciation clauses that existed in the codification instruments have never been used. and requesting the member States to conclude a convention prohibiting the use of nuclear weapons in any circumstance. the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of selfdefence. 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. of Additional Protocol I of 1977. 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. in view of the present state of international law viewed as a whole. International humanitarian law. international law. has not been advocated in the present proceedings. The Court observes that. Conclusions to be drawn from the applicability of international humanitarian law and the principle of neutrality. the use of such weapons in fact seems scarcely reconcilable with respect for the requirements of the law applicable in armed conflict. the Court considers that it needs to examine one further aspect of the question before it. It points out that the adoption each year by the General Assembly. from the principles of humanity and from the dictates of public conscience. paragraph 2. in view of the necessarily indiscriminate consequences of their use. 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. These rules indicate the normal conduct and behavior expected of States. because of the newness of the latter. in the Court's view. According to the second principle. Nor can it ignore the practice referred to as "policy of deterrence". 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. and there is a qualitative as well as quantitative difference between nuclear weapons and all conventional arms. whatever its content. A similar view has been expressed with respect to the effects of the principle of neutrality." The extensive codification of humanitarian law and the extent of the accession to the resultant treaties. 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. of resolutions recalling the content of resolution 1653 (XVI). Obligation to negotiate nuclear disarmament. and thus its right to resort to self-defence. whatever type of weapons might be used. Like the principles and rules of humanitarian law. by a large majority. The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict. those of the past. The emergence. States do not have unlimited freedom of choice of means in the weapons they use. According to one point of view. to which the Court has referred above. the Court cannot lose sight of the fundamental right of every State to survival. when its survival is at stake. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants. 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. the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict. the Court observes that the cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. which reads as follows: "In cases not covered by this Protocol or by other international agreements. 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". In the long run. as lex lata. to all international armed conflict. the Conferences of 1949 and 1974-1977 left these weapons aside.   Page 10 of 130 It notes that the Members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the expression of an opinio juris. 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. 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. Accordingly. does not necessarily mean that such recourse is as such prohibited. The Court also refers to the Martens Clause. Martens clause. civilians and combatants remain under the protection and authority of the principles of international law derived from established custom. 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. 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. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris. The principle of neutrality. is applicable (subject to the relevant provisions of the United Nations Charter). as examined by the Court. by a specific and express prohibition of the use of nuclear weapons. which is of a fundamental character similar to that of the humanitarian principles and rules. in accordance with Article 51 of the Charter.UP Law B2009 Reviewer (Karichi Edition) from that source of law. to which an appreciable section of the international community adhered for many years. those of the present and those of the future. 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. seen in a broader context. However. could never be compatible with the principles and rules of humanitarian law and is therefore prohibited. in which its very survival would be at stake. a significant step forward along the road to complete nuclear disarmament. It considers nevertheless. and with it the stability of the international order .

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

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

rights and interests of this Company in that undertaking. The damage suffered is equivalent to the total value .The reparation of a wrong may consist in an indemnity corresponding to the damages which the nationals of the injured state have suffered as a result of the act which is contrary to international law.Reparation is the indispensable complement of a failure to apply a convention. the amount of the reparation is the logistical value of the property taken at the time of the expropriation. desired the circumstances in which it was effected to remain secret. if effected without her consent. which value is designed to take the place of restitution which has become impossible. The rules of law governing the reparation are the rules of international law in force between the two States concerned. or if this is not possible. defined. 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. if need be. of damages for loss sustained which would not be covered by restitution in kind or payment in place of it .When an expropriation is legal. though this act. payment of a sum corresponding to the value which a restitution in kind would bear. Restitution in kind. remedy is compensation to such amount as to eliminate all effects of illegal taking. if this be not possible. the mine-laying operations must have been noticed by these coastguards. 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. . Reparation is due when there is a breach of an obligation. When restitution not possible. The dispossession of an industrial undertaking (which is prohibited by the Geneva Convention) then involves the obligation to restore the undertaking and. The essential principle contained in the actual notion of an illegal act .is that reparation must. Geographically. then reparation. 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. However. while knowing of the mine laying.a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals . the channel is easily watched: it is dominated by heights offering excellent observation points. Such an attitude could only be explained if the Albanian Government. after enquiry and investigation on the spot. would have been a very serious violation of her sovereignty. . the naval experts appointed by the Court reported. In regard to that point. the award. A Polish was then delegated with the full powers to take charge of the factory. only the value of property. Poland) (1928) Doctrines .UP Law B2009 Reviewer (Karichi Edition)   Page 13 of 130 existence of a minefield. causing the end of the contract between Germany and the companies. rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed. the amount of reparation includes the intangible assets (loss of profits).such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. Subsequently. If restoration is not possible. where the company undertook to establish for the Reich and forthwith to begin the construction of a nitrate factory at Chorzow. The reparation due by one State to another does not however change its character by reason of the fact that it takes the form of an indemnity for the calculation of which the damage suffered by a private person is taken as the measure. it would not be in conformity with the principles of law or with the wish of the Chorzow Factory Case (Germany v. wipe-out all the consequences of the illegal act and re-establish the situation which would. Reparation. Germany brought action in behalf of the companies against Poland for the taking of the companies in violation of the Geneva Conventions. Poland and Germany signed a Convention concerning the Upper Silesia of Geneva (Geneva Convention). and she did not undertake any of the measures of judicial investigation which would seem to be incumbent on her in such a case. thus. Sir Roque says: . that they considered it to be indisputable that. must be taken into account.What is the general principle of law in the case? Reparation for the taking of property requires compensation. 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. . From all the facts and observations mentioned above. 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. 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. have existed if that act had not been committed. under normal weather conditions for this area. The second series of facts relates to the possibility of observing the mine laying from the Albanian coast. Upper Silesia.Taking of property requires compensation. it protested strongly against the activity of the British Fleet. and these grave omissions involve her international responsibility. as far as possible. State͛s espousal of claims on behalf of its nationals. as would be required by international law. they are not disputed. As regards the obligations resulting for her from this knowledge. Reparation = indemnity for damages caused. it can only afford a convenient scale for the calculation of the reparation due to the State. In fact. nothing was attempted by Albania to prevent the disaster. in virtue of the general principles of international law. if a normal look-out was kept and if the lookouts were equipped with binoculars. and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage. must be added that of compensating loss sustained as the result of the seizure. when there is an unlawful taking. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State. This conclusion particularly applies as regards the Geneva Convention. without deducting liabilities.of the property. The German empire had a contract with a company. In estimating the damage caused by an unlawful act. To this obligation.but to that total only . in all probability. she did not notify shipping of the existence of the minefield. or the damage done to whom is to serve as a means of gauging the reparation claimed. to pay its value at the time of the indemnification. but not against the laying of the mines. . Reparation. as applied in this case. the Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of Albania.

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

voting pattern) and by analysis of the principles which they state. The appraisal of the legal value on the basis of the principles stated. Resolution 1803 (XVII) seems to this Tribunal to reflect the state of customary law existing in this field. but all this in conformity with international law. (b) by adopting the measures of nationalization. while arbitral tribunals can declare awards which include the declaration of specific performance against a recalcitrant party. as recognized in another case). The consensus by a majority of States belonging to the various representative groups indicates without the slightest doubt universal recognition of the rules therein incorporated. The governing system of law is what the clause expressly provides. thereby making it possible to determine whether or not one is confronted with a legal rule. Legal value of resolutions to be determined on the basis of the circumstances under which they were adopted & analysis of the principles they state. in December 1971 passed the BP Nationalization Law. which law prevails (domestic or industrial)? Why will it matter to figure out? Imagine when a private airport owned by a German is expropriated by Philippine government. 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. By contrast. 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. Several UN G. In the event that international law and Libyan law conflict on the issue. Examined in the light of general principles of law. the legal systems analyzed here offer different solutions to the problem. Will it matter whether Pasay RTC will have jurisdiction or the ICJ? Pasay will naturally have stronger influence to co-Filipinos. which allowed BP to operate in Libya for the extraction. that in the absence of principles common to the Libyan and International law. State Practice + Opinio Juris still has to be proved. for .The method of looking into voting patterns and employing the ͞specially affected͟ states doctrine do not fully and totally assess WON a resolution is binding. In this respect. In the decisions of tribunals. which nationalized the operations of BP in Concession 65. as far as the others are concerned. 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. rights. Clause 28 of the concession agreement provides that should dispute arise. Libya. . On the basis of the circumstances of adoption mentioned above and by expressing an opinio juris communis. they have a declaratory nature of noting what does exist" Resolution 1803 reflects the state of customary law ʹ based on adoption of majority of states & opinio juris. were supported by a majority of States but not by any of the developed countries with market economies which carry on the largest part of international trade. The Arabian Gulf Exploration Company had taken over Concession 65. processing and export of petroleum. Applicable law in the case. and only if such common principles do not exist with respect to a particular matter. assets and shares in the operations conducted in the said area. 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. BP Exploration Company (BP) had a contractual agreement with the Government of Libya (Libya). With respect to the first point. As has been noted by Ambassador Castaneda. Sir does not approve of this method. the rejection of these same principles implies that they consider them as being contra legem (against the law). they do not create a custom but confirm one by formulating it and specifying its scope. Application of local laws is beneficial for the state. including those that may have been applied by international tribunals. general principles of law. Resolutions in order to be binding must be accepted by the members especially those specially affected. their powers and jurisdiction to do so rest carefully on the parties͛ consent. on the occasion of the vote on a resolution finding the existence of a customary rule. Thus these municipal systems of law profess allegiance to two divergent principles on the question. 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. will resort be made to general principles of law. Distinguish between those stating an existing right & those introducing new principles. which proclaim rules recognized by the community of nations. However.e. Libya promulgated decrees purporting to nationalize all of the rights. The Companies requested arbitration. with respect to nationalization and compensation the use of the rules in force in the nationalizing State. The Sole Arbitrator held that (a) the Deeds of Concession are binding on the parties. should apply. restoring to the State ownership of all properties. The area in which BP was allowed to operate was called Concession 65. Indeed. Libya Doctrine In determining the binding nature of GA resolutions. the other Resolutions mentioned. value only in the eyes of the States which have adopted them.A. Sir Roque says: . the court looked to the voting patterns of the participant states. the applicable law shall be the principles of the law of Libya common to the principles of international law. Libya argues that with respect to nationalization. the Arabian Gulf Exploration Company. 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. "[such resolutions] do not create the law. the States concerned clearly express their views. municipal law should govern and not international law. BP v. 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). As a result of the Nationalization Law (which was rapidly implemented) BP͛s operations in Concession 65 were brought to a complete halt and its staff were immediately excluded from the premises and facilities. i. general principles of law should apply to resolve the question. resolutions were invoked by both parties.UP Law B2009 Reviewer (Karichi Edition)   Page 15 of 130 local laws is beneficial for the state. and in particular those referred to in the Libyan Memorandum. but whether in case of expropriation. Thus the court had to look into the legal value and validity of such resolutions and their binding effect to the parties. Specific Performance not applicable here. With respect to the former. and then transferring these to a new company.. interests and property of Texaco in Libya granted to them jointly under 14 Deeds of Concession. Investor is favored in international law.The issue here is no longer whether Libya can nationalize (because it could. Investor is favored in international law.

Take note. BP cannot ask for specific performance nor to be declared owner of any oil extracted in Libya. The impossibility of restitution and specific performance. and to governing principles of English and American contract law. such an action. III. It is clear then. the remedies of restitution in king and specific performance are unavailable against governmental authorities. (The principles of these legal systems are principles of ordinary commercial law. As a consequence of which. Under Public International Law.same as German. this is the only decision that the restituto in integrum is impossible. c) government. An obligation must be performed. this case is different because one of the parties is a state. ACTORS IN INTERNATIONAL LAW Art. in the judgment of the Organization. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and. and there is no uniform principle which provides that specific performance is a remedy available at the option of an innocent party. it is possible. Furthermore. As to restitutio in integrum. General principles of law: The General principles of a contract such as autonomy. b) a defined territory. 2. ART. mutuality. Here.specific performance is the normal remedy and damages are resorted to only when it is not possible. The principle of compensation is also recognized in the BP Nationalization Law. for the purposes of the dispute. 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. if awarded now and the contract would still be allowed to exist indefinitely. 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. Danish law. 4. The concept has rather been employed at times as a principle for assessing the amount of damages due for breach of an international obligation. it was not the LEGAL IMPOSSIBILITY but IMPRACTICABILITY that restitution cannot be ordered. here. but in this case. restitution in integrum and damages Step one: Look at the principles of Libyan law common to international law. and d) capacity to enter into relations with the other states. no tribunal has ever prescribed the remedy with regard to such property or parties as in these proceedings. ART. the obligations of pacific settlement provided in the present Charter. ART. Vienna Convention does not provide for specific rules on remedies. but his sole remedy is an action for damages. ART. 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. the norm is the payment of damages. 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. English law ʹ the norm is damages and specific performance is the exception. The claim would not even be realistic. The law between the parties must be complied with in good faith. The breach because of the Nationalization Law is made the basis of the amount of damages in favor of BP. There are no certain conclusions as to the position of Libyan law on the subject matter of the dispute. Sir Roque says: This case also involves a concession contract. Step three: Look at the general principles of international law (municipal legal principles existing in different legal systems). However. especially in the form of physical restoration. 1. BP is entitled to damages arising from Libya͛s wrongful acts. Payment of Damages. a State (Libya) is the respondent and normally. which has the effect of turning back the clock would upset the current situation too profoundly and would have unforeseeable practical consequences. 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. a contractual undertaking as previous cases. it is only when damages are inadequate that specific performance is resorted to. German law. if it is a party to a dispute under consideration by the Security Council. are able and willing to carry out these obligations. 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. the concessionaire is not entitled to call for specific performance by the Government of the agreement and reinstatement of his contractual rights. the amount would be so great it would be absurd. evidenced by state practice and the law of treaties.UP Law B2009 Reviewer (Karichi Edition)   Page 16 of 130 under English and American law the sole remedy is damages and in others specific performance does not lie against the State. it is impractical to order specific performance necause cannot compel a state because there is no coercive apparatus in international law. Step two: Look at Public international law (Vienna Convention on the law of Treaties). Restitutio in integrum not applicable again. 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. however. A rule of reason therefore dictates a result which conforms to international law. shall be invited to participate. UN Charter 1. Under the applicable systems of law. in the discussion relating to the dispute. while it has been claimed. Although as a matter of law. 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. specific performance and restituto in integrum is not available. consensuality and obligatory are observed. 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 . The framework of the Tribunal with regards entitlement to specific performance.

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

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

is the right to exercise therein. That limitation is built into the nature of state sovereignty under international law. lacking in precision. and arbitrary results The island of Palmas is a single. to the exclusion of any other State. claiming that Spain acquired title by discovery in the 1500s. According to widely accepted opinion of Judge Huber in the Island of Palmas case. Island Of Palmas Case Sir Roque says: US: Discovery ͞Inchoate title͟ Huber: Discovery is not enough. 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. paragraph 2". taxation 2. the development of international law. How is state sovereignty defined in international law? It is the right to exercise in a definite portion of the globe the functions of a State to the exclusion of another state.͟ Again. The island was only reported to have been seen but there was no sign of possession or administration by Spain or any mention of a contract with the natives. However.͟ Sovereignty in the relations between States signifies independence. collection of tribunes. ͞seeing͟ without occupation amounted to discovery. And all the events after such date will be ignored. etc. 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. and. This is the traditional context in referring to sovereignty as ͞absolute͟. In this case.existence. The Netherlands claims that the Dutch East Indies possessed and exercised rights of sovereignty through conventions and agreements with the natives (Treaty of Suzerainty). US bases its title by cession from the Spaniards. it merely gives the claimant an inchoate title to the territory and requires the discovery to be coupled with effective occupation. Principle of Continuity ʹ presumption of sovereignty in favor of a particular state wherein islands relatively close to the shores of a state belonged to them by virtue of their geographical proximity to each other. The sovereignty of one state ends where the sovereignty of another state begins. they would have shown Spanish occupation of the islands. resulting in the negation of international community composed of juridically equal states. Although under international law in the th 16 century. Critical Date ʹ regardless of what parties will do (subsequent events. in regard to a portion of the globe. Even though certain expenses are "extraordinary" and "essentially different" from those under the "regular budget". sovereignty realizes itself in the existence of a large number of sovereignties. and Spain did not have the island based on discovery. discovery but also effective occupation through: 1. TERRITORIAL SOVEREIGNTY If state sovereignty is said to be ͞absolute͟. To conceive it as unlimited as to negate its existence in the context of the co-existence of sovereignties. such that there prevails in fact co-existence of sovereignties under conditions of independence and equality. provision of defense 3. However. 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. etc. The court held that there was indeed cession through the treaty of Paris. However. state sovereignty is the supreme legal authority in relation to subjects within its territorial domain. Independence. 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.) ʹ the court will freeze the period of the controversy to the date when the controversy became ripe for adjudication. Both US and Netherlands claim territorial sovereignty over the island. But the existence if a right must follow the conditions required by the evolution of law ʹ the 19th century IL which requires effective occupation to constitute territorial sovereignty. 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. defined. The development of the national organization of States A.UP Law B2009 Reviewer (Karichi Edition)   Page 19 of 130 authority given him to incur financial obligations of the Organization and expenses resulting form such obligations must be considered "expenses of the Organization within the meaning of Article 17. so uncertain and uncontested. Sovereignty in relation to territory is called ͞territorial sovereignty. the functions of a State. independence in regard to a portion of the globe is the right to exercise therein to the exclusion of any other State. Critical date in this case ʹ Treaty of Paris (1898) The Critical Period is a juridical technique in the use or exclusion of evidence consisting of self. contradictory opinions. paragraph 2. the tribunal disregarded this because: no precedent. 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. By showing that there were priests. international law prescribed that not only Netherlands: Treaty Agreement of the Dutch with the natives allowed the Dutch to exercise sovereignty over the islands . paragraph 2. Article 17. the functions of a State.. United States could have won the case if they had shown that at the time there was no separation of church and state. civil registrar. ͞Sovereignty in the relations between states signifies independence. isolated island found between Mindanao and Greenwich. Territorial sovereignty. in the international sphere. as a corollary. Spain never protested the exercise of territorial rights by Netherlands Discovery alone is not sufficient. The development of the national organization of States during the last few centuries. IL underwent modifications. STATES 1. Based on the Intertemporal Law. the act which creates a right is subjected to the law in force at the time the right arises. Spain could not transfer to US more rights than she herself possessed.serving acts of parties at a stage when it was evident that a dispute existed.

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

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

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

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

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

Demons. 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. Lt. 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. protesting his arrest. there was . Territoriality of criminal law is not absolute in international law. 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. Sir Roque says: Although both sides were able to present evidence establishing their sovereignty over the area. such as expeditions. legislation. III. All that can be said is that by virtue of the principle of the freedom of the seas. This is because Indonesia͛s predecessor-in-interest. no State may exercise any kind of jurisdiction over foreign vessels upon them. and they do so in ways which vary from State to State. It is certain that the courts of many countries. However. the Netherlands. accordingly. the authors of which at the moment of commission are in the territory of another State. just as in its own territory. given decisions sanctioning this way of interpreting the territorial principle. it is a proof of a better claim. demanding his release or obtaining transfer of the case from the Turkish Courts to the French Courts. the same principles must be applied as if the territories of two different States were concerned. The officer on watch on board Lotus was Lt. even of countries which have given their criminal legislation a strictly Eastern Greenland Case If the area is thinly populated or unsettled. i. such an act would undoubtedly be contrary to international law. In virtue of the principle of the freedom of the seas (absence of any territorial sovereignty upon the high seas). Conclusion Assuming for the sake of argument that Indonesia͛s title to Palmas is beyond dispute because of the Palmas arbitration. Turkey) Sir Roque says: The decision in the SS Lotus case has already been overturned by the UNCLOS.. 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. 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. what won it for Denmark was estoppel or acquiescence because of the Ihlen Declaration. and more especially its effects. granting of concessions. every State remains free to adopt the principles which it regards as best and most suitable. Vessels are covered under the jurisdiction of the state whose flag they fly. a French citizen. Eight Turkish nationals on board died. There is equal preponderance of evidence presented by both states as to their occupation of a certain portion of Greenland. 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. Although acquiescence is not a means of acquiring title. Palmas should be treated as an island independent of the Indonesian archipelago and properly enclaved. that State exercises its authority. the delinquent. The Boz Kourt was cut in two and sank.UP Law B2009 Reviewer (Karichi Edition)   Page 25 of 130 still be declared as forming part of Philippine archipelagic and territorial waters. interpret criminal law in the sense that offences. French courts have. 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. The parties submitted the conflict tot the Court at the Hague. SS Lotus Case (France v. upon it. in regard to a variety of situations. it does not justify Indonesia͛s use of Palmas in its 2002 baselines law as a base point for the drawing of its archipelagic baselines. are nevertheless to be regarded as having been committed in the national territory. 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. have taken place there. and no other State may do so. territorial character. little actual exercise of sovereign rights is sufficient. Vessels on the high seas are subject to no authority except that of the State whose flag they fly. But it does not follow that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas (double negative ito. It͛s not necessary to consider the contention that a State cannot punish offences committed abroad by a foreigner simply by reason of the nationality of the victim. Norway͛s possession was not in the concept of a title. State discretion in applying local laws. even in regard to offences committed there by foreigners. Demons was arrested by the Turkish authorities and was subjected to trial in the Turkish courts. Jurisdiction can be determined by looking at the elements [effects] of the crime. Accordingly. The territoriality of criminal law is not an absolute principle of international law and does not coincide with territorial sovereignty. for. Nationality of victim is not the sole basis of jurisdiction. There was a collision at the high seas between a French mail steamer Lotus with the Turkish collier Boz Kourt. if a war vessel. In other cases. which is only limited in certain cases by prohibitive rules. 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. property and acts outside their territory. if one of the constituent elements of the offence. The French government protested the actions of the Turkish authorities. Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental. did not allege in the Arbitration that the island formed part of the archipelago. etc. But no such rule of international law exists. Thus. it only means a state can exercise jurisdiction in its own territory even if the act occurred on board a foreign ship).e. If a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory.

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

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

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

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

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

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

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

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

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

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

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

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

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

a.

INTERNAL WATERS

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

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

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

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

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

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

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

(b) Any port. landward of a straight line not over 24 geographical miles long. drawn within the bay so as to enclose the greatest possible amount of water. State of California and the Federal government are trying to determine who owns and has jurisdiction over the subsoil. as to contain landlocked waters. the Gulf would today be regarded as a juridical bay in accordance with UNCLOS. California (1965) Case involves the interpretation of some terms used in the Submerged Lands Act.6 years. between the line of mean high water and the line of mean lower low water). the Gulf had been a single State bay belonging to Spain alone.S.a naturally-formed area of land surrounded by water. which is above the level of mean high water. Thus. to an armed conflict in 1969 Islands of the Gulf of Fonseca. argues that the definitions of inland waters contained in the International Convention on the Territorial Sea (ICTS) should prevail over Louisiana͛s contention that it should be the ͞Inland Water Line͟ (IWL) fixed by the Commandant of the Coast Guard in 1895. "Geographical mile" . Thus the Court was forced to concentrate more on the behaviour of the parties with regard to the islands after 1821. v. and waters between islands and the mainland are not per se inland waters.6 years. (d) Semi Circle Test Any other bay (defined as a well-marked coastal indentation having such penetration.a naturally-formed area of land surrounded by water at mean lower low water. "Mean lower low water" . which is above the level of mean lower low water but not above the level of mean high water. Court looked at the Central American Court of Justice of 1917 conclusion that the Gulf of Fonseca effectively constituted a "closed sea" belonging to all three coastal States communally. To resolve such. This includes modifications by natural or artificial means. However. 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. According to the Court. From this fact the Court concluded that its decision had to be taken on the basis of customary international law. 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.(Art. the Court discusses the definition of relevant maritime terms. the reality and importance of which are clearly evidenced by long usage. ultimately. the question of the land frontier followed in 1861. ͞Coastline͟ . Court held that Gulf of Fonseca was a case of "historic waters"."the line of ordinary low water along that portion . seabed of the continental shelf and the resources located therein along the California. landward of a straight line across its mouth. Considering the dimensions and proportions. in proportion to the width of its entrance. Definitions.S. landward of a straight line across its entrance or. the decision of the Central American Court underlined the fact that at the time of independence. sovereignty over the islands had been achieved according to the uti possidetis juris principle (colonial boundaries are continually adopted). the Gulf was not a single State bay but constituted a so called historical bay.waters between islands. ͞Roadsteads͟ . However.10333 U. whereby the three coastal States had succeeded to communal sovereignty. "Mean high water" . Until then. Sustained the California case. 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. or the sum of such closing lines if the bay has more than one entrance). the Central American Court viewed the Gulf of Fonseca as a condominium resulting from the succession of the three States from Spain in 1821.the average elevation of all the daily lower low tides occurring over a period of 18. Survey Feet or approximately 6076. Border incidents led to mounting tension between El Salvador and Honduras and. defined essentially as a bay over which the United States has traditionally asserted and maintained dominion with the acquiescence of foreign nations. Louisiana (1969) The issue is about the correct definition of ͞Inland Waters͟. United States vs. "Low-tide elevation" ." as that term is used in paragraph 6 of Article 7 of the Convention. 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. Federal government owns and has exclusive jurisdiction over such beyond 3 miles seaward from the coastline. landward of its outermost permanent harbor works and a straight line across its entrance. which is neither defined in the 1958 Convention nor in the Convention of 1982. The ICTS definition prevails and it is as follows . if the entrance is more than 24 geographical miles wide. El Salvador v. Jurisdiction. An estuary of a river is treated in the same way as a bay. 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.11549 International Feet). the date of independence. Court sustains the adoption of the ICTS definitions in the U. Gulf of Fonseca = Juridical Bay under UNCLOS and Historical Bay under Customary International Law. on islands. including islands within the bay. and having an area. California case. Nicaragua Intervening (1992) The legal status of the islands located in the Gulf of Fonseca became an issue of dispute. and includes the outermost permanent harbour works that form an integral part of the harbour system "Island" . no boundaries were delimited in the Gulf and thus the waters had remained undivided. the waters of the Gulf had never been divided or otherwise delimited after the independence of the three coastal States. In contrast to the frontier delimited on land. 8 of the Convention on the Territorial Sea and the Contiguous Zone) (a) The line of mean lower low water on the mainland.S.UP Law B2009 Reviewer (Karichi Edition)   Page 31 of 130 region. Thus. Court adopts the definitions in the International Convention on the Territorial Sea and the Contiguous Zone: US v.a distance of 1852 meters (6076. "Inland waters" (Par. On this basis the Court found that El Tigre appertained to Honduras and Meanguera and Meanguerita to El Salvador. Thus. and (b) The line marking the seaward limit of inland waters. 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. Honduras.the average elevation of all the high tides occurring over a period of 18. U. with the exception of a three mile zone established unilaterally by each coastal State. (c) Any "historic bay. None of the islands had been terra nullius in 1821.

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

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

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

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

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

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

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

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

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

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

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

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

to the south of Italy and to the north of Libya. Libya v. which provided that the delimitation of the continental shelf be effected by agreement on the basis of international law. 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). Relation to EEZ & legal basis of continental shelf rights. the result to which the distance criterion leads must be examined in the context of applying equitable principles to the relevant circumstances. Although the institutions of the continental shelf and the EEZ are different and distinct. It follows that the distance criterion must now apply to the continental shelf as well as to the EEZ. such as distance from the Coast. Proportionality is considered. it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. The Mediterranean is bordered by Tunisia (east). The concepts of natural prolongation and distance are therefore not opposed but complementary. "equity does not necessarily imply equality". Malta (1985) This concerned the delimitation of the continental shelf between Libya and Malta. Geography. is in part defined by distance from the shore. 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 tracing of a median line between those coasts. Malta is a group of islands situated in the Mediterranean. It restricts itself to setting a standard. or to the courts. What this means is that where the continental margin does not extend as far as 200 miles from the shore. which may call for a correction of the initial results.continental shelf and EEZ ʹ are linked together in modern law. 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. by way of a provisional step. Unity of any deposits. it must first be clearly established what features do in fact constitute such extensions. these being measured according to their general direction in order to establish the necessary balance between States with straight. To achieve this purpose. Libya͛s coast is significantly larger than that of Malta. but is silent as to the method to be followed to achieve it. 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. irrespective of the physical nature of the intervening sea-bed and subsoil. RE: UNCLOS. 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. and since it is possible to exploit such a deposit from either side. Yet it frequently occurs that the same deposit lies on both sides of the line dividing a continental shelf between two States. concept. The choice and application of the appropriate technical methods would be a matter for the parties. and the principle that there can be no question of distributive justice. Take note that the median line drawn is only provisional. all relevant circumstances must be examined. 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. Although there can be a continental shelf where there is no EEZ. natural prolongation. 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. The principle is that the land dominates the sea. security considerations. or to reduce very irregular coastlines to their truer proportions. Factors which weren͛t considered in this case: landmass. and it is left to States themselves. Were the Court to treat it as final. Italy (north). is the most judicious manner of proceeding with a view to the eventual achievement of an equitable result. Delimitation process: 1. 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. Examination of the provisional solution in light of the requirements derived from other criteria. there cannot be an EEZ without a corresponding continental shelf. and the principle of equality. 2. Since the land is the legal source of the power which a State may exercise over territorial extensions to seaward. which are common to both concepts. the principle of respect due to all such relevant circumstances.UP Law B2009 Reviewer (Karichi Edition)   Page 35 of 130 of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation. in order to achieve an equitable solution. 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. which in spite of its physical origins has throughout its history become more and more a complex and juridical . The two institutions . 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. 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. to endow this standard with specific content. Equitableness of result is primary. the principle that although all States are equal before the law and are entitled to equal treatment. a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. 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. and those with markedly concave or convex coasts. Some equitable principles: the principle that there is to be no question of refashioning geography. or compensating for the inequalities of nature. 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. 3. This does not mean that the concept of the continental shelf has been absorbed by that of the EEZ. 2. Greece (west) and Libya (south). In this delimitation between opposite coasts. Under existing law. relative economic positions of the Parties. nor does it seek to make equal what nature has made unequal. it must be demonstrated that the equidistance method leads to an equitable result in the case in question. Also remember that. 4. it does however signify that greater importance must be attributed to elements. to achieve an equitable result in a situation in which the equidistance line is prima facie the appropriate method. The Convention sets a goal to be achieved. 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.

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

but may be subject to qualification. 6. the areas of continental shelf to be delimited lie off. in the absence of agreement and unless another boundary is justified by special circumstances. 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. which makes individual geographical features on either coast more prone to render . the presence of the Channel Islands must be considered. Similarly. Characteristics of the area: approximate equality of the mainland coastlines. Another is France and the UK aren͛t the only States which abut on the Atlantic continental shelf. The Channel Islands (not constitutionally part of the UK. The legal framework is that of two opposite States one or which possesses island territories close to the coast of the other State. a small island would block the natural prolongation of the territory of the nearby mainland in the same way. 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. 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. Moreover. Legal framework used. In international law. 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. on equitable grounds. a circumstance creative of inequity and calling for a method of delimitation that in some measure redresses the inequity. 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. this will result in a substantial diminution of the area of continental shelf which would accrue to France. since their continental shelf must be the subject of a second and separate delimitation. 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 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. 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. If the Channel Islands are given full effect. If this conclusion is tested by applying the equidistance-special circumstances rule. rather than between. vis-à-vis the Channel Islands.UP Law B2009 Reviewer (Karichi Edition)   Page 37 of 130 the Court given the essential geological continuity of the area (the Hurd Deep were just discontinuities in the seabed and subsoil which didn͛t disrupt the essential unity of the continental shelf). 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. The actual coastlines of the two countries abutting on the continental shelf to be delimited are comparatively short. Principles of equity. but direct dependencies of the British Crown which were treated as part of the UK. It is also common ground that. The application of that principle in such a case has to be appreciated in the light of all the relevant geographical and other circumstances. 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. when combined with a large extension of the continental shelf seawards from those coasts. 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. 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. 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. Factors not considered: navigational defence and security interests in the region. Under Art. Features considered. 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. In consequence. as a "special circumstance" justifying a delimitation other than the median line. 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. Another is that the UK͛s coastal frontage project further into the Atlantic than that of France. The essential continuity or the continental shelf of the English Channel and Atlantic region has been emphasized. as a larger island. Yet. in the case of "adjacent" States it is the lateral geographical relation of the two coasts. 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. resulting in equality of their geographical relation to the continental shelf of the Channel. Principle of natural prolongation. 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). In short. the method adopted for delimiting the boundary must ensure that the delimitation accords with equitable principles. the coasts or the two countries. 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. There is nothing in the language of Art. This fact appears to be. the primary boundary between them shall be a median line. if the force of the principle of natural prolongation of territory were absolute. prima facie. The two-fold solution with regard to Channel Islands: First. A further consequence is that the continental shelf extends to seawards of the coasts of the two countries for great distances. 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. if the Channel Islands are left out of account. 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. since the UK was the responsible authority with regard to the continental shelf) are situated on the French side and within the arms of a gulf on the French coast. Under customary law. Features of the Channel considered in this case. some modification of the application of the principle in those areas. In delimiting its course in the Channel Islands region the Channel Islands themselves are to be disregarded. Second step: to delimit a second boundary establishing. 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. if not always to the same extent. not absolute. prima facie. as well as on any relevant considerations of law and equity.

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

However. inflicting thereby avoidable loss on a ship owner or other persons affected by such detention.)". DELIMITATION OF MARITIME BOUNDARIES M/V Saiga (No." Two questions need to be addressed in this connection. or the failure of local law to provide for release on posting of a reasonable bond. in the exclusive economic zone. 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. and [2] those relating to areas outside that zone. Guinea did not comply with several. If no agreement can be reached within a reasonable period of time. The basis is the value of the detained vessel and of the cargo seized. paragraph 1. No limitation should be read into article 292 that would have the effect of defeating its very object and purpose. Measures not satisfying these conditions were not conservation and management measures but unlawful acts pure and simple. h. Equally. No visual or auditory signals to stop could have been given to the Saiga. and they must not jeopardize or hamper the reaching of a final agreement. of the Convention provides: "There must exist a genuine link between the State and the ship. Guinea is insisting that they had jurisdiction to arrest and invoke hot pursuit. of the International Law Commission's Draft Articles on State Responsibility. paragraph 2). Indeed.UP Law B2009 Reviewer (Karichi Edition)   Page 39 of 130 State which adversely affected the rights of other States outside that State's own area of jurisdiction. immigration or sanitary laws and regulations within its territory or territorial sea. are: (a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril. Hot Pursuit ʹ defense denied (Article 111 UNCLOS) All the requirements must be cumulatively complied with. 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. Regarding the delimitation of the territorial sea between States with opposite or adjacent coasts. (article 60. be regarded as "conservation and management measures": [1] those relating to the State's exclusive economic zone. The applicants are challenging the validity of the arrest and want damages. 2 CONDITIONS FOR STATE OF NECESSITY TO APPLYʹ NOT MET. its owner or its crew. paragraph 1. 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. (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. Exception ʹ State of Necessity (ART 58 . In the contiguous zone. 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. 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. Sir Roque says: Mustn͛t submit vessels guilty of illegal fishing to incarceration.A. and (b) the act did not seriously impair an essential interest of the State towards which the obligation existed. Article 292 provides for an independent remedy and not an appeal against a decision of a national court. and the alleged pursuit was interrupted when the patrol boats were recalled before they resumed the chase.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. unless they agree to do so. 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. installations and structures (article 60. a coastal State is entitled to apply customs laws and regulations in its territorial sea (articles 2 and 21). fiscal. under the Convention. installations and structures. the coastal State has jurisdiction to apply customs laws and regulations in respect of artificial islands. 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. in practice. (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. (b) punish infringement of the above laws and regulations committed within its territory of territorial sea. It was boarded by the French surveillance frigate Floréal in the exclusive economic zone of the Crozet Islands. The Tribunal notes that. the parties shall resort to peaceful means of dispute settlement. Pending this they may make provisional arrangements of a practical nature. paragraph 2). in so far as these came within the framework of an international agreement or were directed at stateless vessels.͞OTHER RULES OF INTERNATIONAL LAW͟ phrase). Reasonableness of Bond Amount. Camouco Case (2000) The Camouco is a fishing vessel flying the flag of Panama. but must promptly release them upon the posting of a cash bond. without prejudice to the merits of the case in the domestic forum against the vessel. the Court stated that they "must be cumulatively satisfied" and that they "reflect customary international law". a coastal State may exercise the control necessary to: (a) prevent infringement of its customs. equitable principles which have a normative character as part of general international law). article 292 permits the making of an application within a short period from the date of detention and it is not normally the case that local remedies could Municipal authorities are allowed to attach provisional liberty with the posting of a bond provided the amount is reasonable. In endorsing these conditions. EEZ ʹ Guinea could only apply its customs laws with regard to artificial islands. Article 91. Its owner is "Merce-Pesca (S. As set out in article 33. Saiga͛s Nationality ʹ UNCLOS GENUINE LINK TEST. . or if historic title or other special circumstances make it necessary to delimit the territorial seas in other ways. Doctrine: In international law only 2 types of measures taken by a coastal State could. a company registered in Panama.

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

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

there are no others that should be taken into account. . This is the longest portion. and are thus ineligible for consideration as criteria to be applied in the delimitation process itself. the application of any method of geometrical origin can in practice only result in the drawing of a median delimitation line. over its entire length. In this case (given the rectangular shape of the area and the quasi-parallelism between the lines used in the delimitation. with limited practical impact. Stage two. C and D. 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. 5. or any act of depredation. By legal fiction. any act of voluntary participation in the operation of a known pirate ship or aircraft. committed for private ends by the crew or the passengers of a private ship or a private aircraft. the ship is really of the same nationality as the warship. so that the ratio to be applied for determining the location of the corrected median line will be approximately 1. & socioeconomic aspects) . in addition to the factors provided by the geography of the Gulf itself. Some enquiry whether. Historical presence in the area. Since it is only a question of adjusting the proportion by reference to which the corrected median line is to be located. i. B. and the terminal point of the international boundary with Canada is situated much farther to the northeast in the Grand Manan Channel. freedom to construct artificial islands and structures 6. activities pursued like fishing and conservation of resources. the ship is engaged in slave trade 3. This is the segment which lies outside and over against the Gulf of Maine. The portion of the line now to be determined will inevitably be situated in the open ocean. and end on reaching the closing line of the Gulf.32 to 1 in place of 1. any illegal acts of violence or detention. the choice of method is essentially dependent on geography. with the corrected median line as so established. This is necessary only for the third segment. freedom of overflight 3. It is obvious that the only kind of practical method which can be considered for this purpose is a geometrical method . freedom of navigation 2. The central segment of the delimitation line will correspond. is an understandable step. outside the actual shores of the Gulf that can serve as a basis for carrying out the final operation required. The presence of some islands and isles must also be considered. and letter D to the point where the first segment reaches. has the right to sail ships flying its flag on 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. not an angular displacement. 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.e. c. the bisector drawn from point A and constituting the first segment. It will begin where this line intersects. The back of the Gulf is entirely occupied by the continuous coast of Maine. Such a line can only be one approximately parallel to the approximately parallel lines of the two opposite coasts. against another ship or aircraft. though flying a foreign flag or refusing to show its flag. and the fact that the coasts are opposite). Freedom of overflight belongs to both civilian and military aircraft. i. aircraft. the island͛s effect is a small transverse displacement of that line. A correction is thus needed. Thus it is impossible to disregard the difference in length between the respective coastlines of the two States which border on the delimitation area. a ship is a floating part of the flag state. freedom of fishing 4. which is the real subject of the dispute due to the potential resources of the subsoil and the fisheries. 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. whether coastal or land-locked. 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. 2. It is some two and-a-half miles long. In this case. to seaward. within the Gulf.UP Law B2009 Reviewer (Karichi Edition)   Page 42 of 130 Stage one. the delimitation line fixed between the maritime jurisdictions of Canada and the US will be the line successively connecting points A.38 to 1. The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement. taking point A as a fixed point and assigning letter B to the meeting-point between the first two segments as above defined. at a corner of the rectangle which geometrically represents the shape of the Gulf proper. 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. applying equitable criteria and appropriate methods accordingly. or against a ship. Third Segment. The delimitation was effected in compliance with the governing principles and rules of law. In principle. the last place on its path where the claims of the two Parties overlap. Piracy refers to the following acts: 1. From the geographical point of view. The ratio between the coastal fronts of the Parties on the Gulf of Maine as is thus 1. a component state of the US. 3. thus producing an equitable overall result. the ship is without nationality 5. the ship is engaged in unauthorized broadcasting and the flag state of the warship has jurisdiction 4. The total length of the US coastline in the Gulf is approximately 284 nautical miles. 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. the determination of the path of this segment must depend on that of the two previous segments. freedom of scientific research. Remember. letter C to the meeting-point between the second and third segments on the closing line of the Gulf. any act of inciting or of intentionally facilitating any of the above acts. This involves the determination of the median line. These other circumstances may be summed up by the data provided by human and economic geography. The high seas are subject to 6 freedoms: 1. freedom to lay submarine cables and pipelines 5. 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. Every State.the drawing of a perpendicular to the closing line of the Gulf. there is no point of reference. Seal Island. the ship is engaged in piracy 2. Verification of the equitable character of the result. This ratio should be reflected in the location of the second segment of the delimitation line. In conclusion. persons or property in a place outside the jurisdiction of any State.38 to 1. and directed: on the high seas. and it is appropriate to give the island half effect. However it would be excessive to treat the coastline of Nova Scotia as transferred southwestwards by the whole of the distance between Seal Island and that coast. or against persons or property on board such ship or aircraft. The overall length of the Canadian coastline is approximately 206 nautical miles.

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

. SETTLEMENT OF DISPUTES Peaceful settlement of disputes is compulsory. the companies will lose the benefit of limited liability and will become liable for the amount needed for the clean-up. p. n. to render assistance to any person at sea in danger of being lost. The alternatives are the International Tribunal for the Law of the Sea. It is the State͛s right to decide the conditions by which it will accord the right to fly its flag. Only the flag state may exercise criminal jurisdiction over the master or any person in the service of the ship. This is a departure from the SS Lotus case.UP Law B2009 Reviewer (Karichi Edition)   Page 44 of 130 negligence. 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. or to rescue persons in distress. PEACEFUL USE OF THE OCEANS In exercising their rights and performing their duties under UNCLOS. ARCHAEOLOGICAL AND HISTORICAL OBJECTS States have the duty to protect objects of an archaeological and historical nature found at sea. o. NAVIGATION Every State has the right to sail ships flying its flag on the high seas. UNCLOS requires submission of the dispute for compulsory settlement in one of the tribunals clothed with jurisdiction. If a bilateral settlement fails. No ship may change its flag during its voyage except in case of transfer of ownership or on the basis of change of registry. If a ship sails under the flag of 2 states. states shall refrain from any threat or use of force against the territorial integrity or political independence of any State. without danger to the crew or passengers. q. or in any other manner inconsistent with the principles of international law embodied in the UN Charter. or an arbitral tribunal constituted under the Convention. the ICJ. Also the flag state shall have the duty to require the ship͛s master.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

63Ͷ67. 2. under RS law. Any communication addressed to the consular post by such person shall also be forwarded by said authorities without delay. 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. (c) consular officers shall have the right to visit a SS national who is in prison. 29. without Iranian authorities attempting to prevent such but with later statements of support by the Ayatollah. 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. 1 shall not apply to such dues & taxes if. (b) not levy national. The rights in par. Art 51 Death of a member of the consular post or of family member forming part of his household. succession or inheritance duties. Art 44 1. decline to give evidence. 3. Art 46 1. 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. Arts. 28. without delay. 59Ͷ62. privileges & immunities of such consular officers shall be governed by Arts. act as representative of SS to any inter-governmental organization. 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. regional or municipal estate. . (US v. inform the consular post of SS if. In a State where SS has no diplomatic mission & is not represented by a diplomatic mission of a third State. Art 37. a consular officer may. Art 47 1. 42. The facilities. take such evidence at his residence or at the consular post or accept a statement from him in writing. Par. he shall not be entitled to any greater immunity from jurisdiction than that to which a consular officer is entitled under the Convention. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. no coercive measure or penalty may be applied to him. Facilities. privileges & immunities of such consular posts shall be governed by Arts. (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. WITH REGARD TO services rendered for SS. 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. Art 17 1. Consular officers shall refrain from taking action on behalf of a national who is in prison. in respect of the performance by him of any consular function. 3. 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. 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. 1 shall be exercised in conformity with RS laws. If relevant information is available to competent authorities of RS. Such performance by a consular officer shall not confer any right to claim diplomatic privileges & immunities. 1. 44. is wrecked or runs aground in RS territorial sea or internal waters. after notification addressed to RS. SS nationals shall have the same freedom WITH REGARD TO communication with & access to consular officers of SS. 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. 3. 34Ͷ39. Article 36. be exempt from the obligations in par. they are payable by the person who contracted with SS or with the person acting on its behalf. Art 32 1. except in par. Members of the private staff of consular officers & of consular employees shall. (c) if a vessel.3 & 55. 54. 45 & 53 & 55. & duties on transfers. competent authorities of RS shall. 30. He shall be entitled to enjoy privileges & immunities accorded to such a representative by customary IL or by int͛l agreements. If a consular officer should decline to do so. Said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.3. other than such as represent payment for specific services rendered. (b) if he so requests. 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. to converse & correspond with him & to arrange for his legal representation. 43. Avena) 1. Chapter III .1 shall apply to honorary consular officers. 2. 2. within its consular district. The giving of this information shall be without prejudice to the operation of RS laws concerning such appointments. Arts. such authorities shall have the duty: (a) death of a SS national: inform without delay the consular post in whose district the death occurred. custody or detention. 2. 2.Regime Relating to Honorary Consular Officers & Consular Posts headed by such Officers Art 58 1.2 & 3 shall apply to consular posts headed by an honorary consular officer. & are entitled to decline to give evidence as expert witnesses WITH REGARD TO SS law. 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. Consular officer may. except property acquired in RS the export of which was prohibited at the time of his death. Tax exemption in par. A consular employee or a member of the service staff shall not. 4.UP Law B2009 Reviewer (Karichi Edition)   Page 72 of 130 Art 14 As soon as the head is admitted even provisionally to exercise of his functions. 2. When possible. with RS͛ consent. US Diplomatic Staff and Consular Staff (US v Iran) US Embassy and staff in Iran were seized by protestors. having the nationality of SS. be exempt from any obligations in regard to work permits imposed by RS laws concerning the employment of foreign labour. RS: (a) permit export of the movable property of the deceased. custody or detention if he expressly opposes such action. a SS national is arrested or committed to prison or to custody pending trial or is detained. 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. be authorized to perform diplomatic acts. Members of the consular post shall. 2. & without affecting his consular status. if they do not carry on any other gainful occupation in the RS. They shall also have the right to visit any SS national who is in prison. 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. regional or municipal dues & taxes.

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

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

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

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

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

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

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

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

The Court is indeed aware that the question of the wall is part of a greater whole. For our purposes. The Court does not however consider this a reason for it to decline to reply to the question asked. but this does not change the fact that there has been a violation18. but there may also be a pronouncement that no crime has been committed in the first place. it is the Court's view that the construction of the wall must be deemed to be directly of concern to the United Nations. It is not clear. a written statement updating his report. 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. The Court cannot substitute its assessment of the usefulness of the opinion requested for that of the organ that seeks such opinion. This is because criminal laws are defined by legislation. the effect of the opinion is a matter of appreciation. Furthermore. The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs. we use human rights as the rights of every human being. the Court considers that the General Assembly has not yet determined all the possible consequences of its own resolution. C. Thanks to Ceejay Balisacan for this portion. As a logical extension of the inherent character of human rights. of course. as well as a voluminous dossier submitted by him to the Court. 17 There is debate. if the recognized human right to life would apply to the ³unborn´ or the human fetus at the time of conception. they are inextricably attached to every person from the time that person becomes a human being17. and MJ for this part. while the General Assembly . there may be justifications for these. Any denial or transgression of these rights constitutes a continuing violation. Giving of advisory opinion will not impede resolution of the IsraeliPalestinian conflict. 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. In the case of human rights. The Court cannot regard this factor as a compelling reason to decline to exercise its jurisdiction. Marco.e. 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. the Court would recall. human rights are also considered inalienable. 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. Human rights abuses. At the same time. 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 observes that the question whether the evidence available to it is sufficient to give an advisory opinion must be decided in each particular instance. no matter what might be its conclusions in any opinion it might give. The Court has at its disposal the report of the Secretary-General. Human rights are also inviolable. which constitutes a negotiating framework for the resolution of the conflict. The Court is conscious that the "Roadmap". Dave. HUMAN RIGHTS Crash Course in Basic International Human Rights Law What is the notion of human rights? The concept of human rights refers to that corpus of internationally and universally-recognized rights that are inherent in every human being. Given the powers and responsibilities of the United Nations in questions relating to international peace and security. what influence the Court's opinion might have on those negotiations: participants in the present proceedings have expressed differing views in this regard. 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. and it would take this circumstance carefully into account in any opinion it might give. i. 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. 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. written statements submitted by numerous other participants which contain information relevant to a response to the question put by the General Assembly. since they do not arise from any legislation but are inherent in every civilization¶s notion of justice. The Court is aware that. INTERNATIONAL ORGANIZATIONS15 1. 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. regardless of what each legal system defines as a ³person´. however. could go on for a number of years in one state without any ostensible opposition but such fact cannot be used to argue that the people of that state have already surrendered or waived vindication of their rights at any time in the future. That the construction of the wall is but one aspect of the conflict will also not prevent the giving of advisory opinion. and in any event.   Page 81 of 130 The issue is not a bilateral matter between Israel and Palestine and it cannot deny giving an opinion on that ground. or cannot be either disposed of or taken away voluntarily or involuntarily. meaning they cannot be understood as having been waived or forgone by the mere failure to assert or vindicate them through the passage of time. The Court finds that it has before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly. but this is a different matter of debate altogether. their violation will always be considered violations although liability 16 . 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. The Court's task would be to determine in a comprehensive manner the legal consequences of the construction of the wall. for example. Beyond that. This recognition based on absolute consensus of the international community makes human rights universal in character.and the Security Council may then draw conclusions from the Court's findings. Nevertheless. One 15 16 Thanks to Ceejay. 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. 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. In essence..UP Law B2009 Reviewer (Karichi Edition) by the General Assembly in the context of issues of judicial propriety. The Court has heard contrary positions advanced and there are no evident criteria by which it can prefer one assessment to another. a residual core of an entire system of rights that cannot further be reduced. which would in certain cases be sufficient to exempt the perpetrators from any legal consequence. 18 Contrast this to the modifying circumstances of criminal law where a person may not only be exempt from liability. They are also imprescriptible." 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 UN can only step in to bring a case before international attention. in the equal rights of men and women and of nations large and small͟19. The UDHR. An accused. the reserving party may be deemed as not having been a signatory at all. in the UN Charter. However. the ICJ recognized that the Convention on Genocide was approved unanimously by the UN GA. In contrast. The HRC. However. it can only enact domestic legislation to implement the treaty. sex. 19 Preambular Clause. or humanitarian character. this notion presupposes that human rights. 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. in the dignity and worth of every human person. but those that fall within the rubric of the international legal system are those which originated from the Charter of the United Nations and the Universal Declaration of Human Rights. . In default of such laws. In essence. human rights enforcement very largely is centered on domestic legislation and international treaty obligations. In sum. for example. However. or religion͟20. Any reservation to the convention. and the European Court of Human Rights under the European Convention on Human Rights. and in promoting and encouraging respect for human rights and for fundamental freedoms for all without discrimination as to race. 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. who has been given all the due process requirements of an impartial trial but who. Does human rights law apply during armed conflicts? YES. social. one can have resort to international law. therefore. 23 Obligations to protect and promote human rights may be embodied in domestic legislation to give it full force and effect. and so its normative content is necessarily binding on all states. On such basis. but only if all other available local remedies have been exhausted. therefore. when found guilty. The ICJ. The express purposes of the United Nations include achieving ͞international cooperation in solving international problems of an economic. Article 27 of the Vienna Convention on the Law of Treaties provides that ³a State may not invoke the provisions of its internal law as justification for its failure to perform a treaty´. such customary status would depend on many factors like the existence of opinio juris to the contrary. being the irreducible core of a system of rights. where the only human rights court established was the one in the Arab conference). they can never be modified by contextual realities. or even afford more protection than what the treaty provides. given their inherent and universal nature. the ICJ held Iran liable for the ³wrongful deprivation of liberty and the imposition of physical constraint in conditions of hardship´ towards the American hostages in the US Embassy. cannot be subdivided so that one portion can be denied and the other granted. and provided further that such state espousing would have sufficient legal interest in the dispute. human rights are enforced domestically. would be subjected to inhumane conditions of confinement can claim a violation of human rights nevertheless. If the human rights abuse becomes so widespread and systematic as to constitute a threat to the peace or a breach of the peace. however. international human rights law applies at all times and at all places. should only be confined to the non-normative provisions. further measures need to be sanctioned by the GA. as embodied in the UDHR. UN Charter. human rights violations may be addressed in the UN Human Rights Council.UP Law B2009 Reviewer (Karichi Edition)   Page 82 of 130 characterization of human rights that has spurred a lot of debates that are ongoing until now is that human rights are indivisible. Since human rights are inviolable and inherent. a human rights 24 violation would entail the international responsibility of that state . if a state has ratified a human rights convention. 21 In the 1951 ICJ Advisory Opinion on Reservations to the Convention on Genocide. cannot be granted only to be nullified by the subsequent denial of the right against cruel and unusual punishment. 24 Velasquez Rodriguez Case. Otherwise. Particularly. Iran or the Hostages Case. 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. Once a state signs a treaty. the right to life is undeniable. even of armed conflict. can only act on cases by investigation and recommendation. language. or the normative 21 character of the content of the resolution . It undertakes a periodic review of all UN members͛ human rights records ʹ no country can be spared from the review ʹ and make recommendations to the General Assembly accordingly. then. but it can never lower the standards of obligation embodied in the treaty. cultural. an individual would find it hard to litigate a case of violation. argue that the UDHR principles have already been elevated to the status of customary law. If an act is properly attributable to a state under international law. according to the Court. but the right to education remains a matter of financial capacity. however. 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. we can validly may also be modified in a certain limited number of cases to be discussed infra. In default of both. especially if the state itself is accused of the violation) ʹ examples of these are the Inter-American Court of Human Rights established under the American Convention on Human Rights. it cannot modify its treaty obligation through domestic legislation. or the number of states-signatories. international humanitarian law becomes applicable only during instances of armed conflict. The problematique comes in when certain human rights coincide with those that are perceived to be ͞hard to attain͟ ʹ for example. Ideally. therefore. 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. has made a categorical pronouncement that the content of the UDHR already embodies 22 principles that are legally binding . In the absence of such international mechanisms (as the case is in Asia. Inter-American Court of Human Rights (1988). therefore. this argument proposes that the right to a fair trial. It can also consider emergency situations of human rights violations and make the same recommendations to the GA. are legally binding in character. 20 Article 1 (3). UN Charter. How are human rights enforced? Ideally. is not a legally binding instrument per se just like all other UN GA Resolutions. therefore. 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. where legal systems have evolved their own laws punishing the violation of human rights23. faith is reaffirmed ͞in fundamental human rights. Human rights will follow Such rights. 22 In US v. Ultimately. 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. The UN Charter͛s reference to ͞fundamental human rights͟ found an authoritative expression in 1948 when the General Assembly adopted the Universal Declaration of Human Rights. the violation of which would constitute a breach of a state¶s international obligation. A case can therefore be brought before the ICJ provided that the cause would be espoused by a state.

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

language. inhuman or degrading treatment or punishment (art. 82. authorized to examine whether measures of derogation might be unlawful as being inconsistent with other international treaties. the right to freedom of thought. These rights are: the right to life (art. 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.20). the right to popular participation in public affairs. for instance. in principle. language. it follows from the work of the Human Rights Committee that it is not possible to conclude a contrario that. there are three procedures for implementing the provisions of the ICCPR: (1) the 31 reportorial procedure . 15). also fulfill the conditions set out in article 4(3) of the Covenant. one such example is the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4). (2): No derogation from articles 6. 21). 14.17). during marriage and at its dissolution (art. as compared to the ordinary limitation provisions dealt with above.12). other treaties for the protection of the individual or even international humanitarian law or customary international law.195. The Committee has further held under the Optional Protocol to the ICCPR that ͞the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception͟.. or religious hatred constituting incitement to discrimination. racial. a State party must. A second notification must be submitted ͞on the date on which it terminates such derogation͟. the right to equality before the law and the equal protection of the law (art. such as. In order to avail itself of the right of derogation.21). hostility or violence (art. 6). 18). family. 12(4)]. the prohibition of ex post facto laws (art. conscience and religion (art. 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). 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. the right of the child to special protection without discrimination. certain legal safeguards against unlawful expulsions of aliens lawfully in the territory of a State party (art. colour. 15. the right to legal personality (art. and the right of minorities to enjoy their own culture. the Human Rights Committee is. sex. Article 4(2) of the Covenant enumerates some rights from which no derogation can ever be made even in the direst of situations. Covenant to the extent strictly required by the exigencies of the situation͟. It is thus necessary to consider whether the measures concerned are strictly required in order to deal with the emergency situation. On the basis of this condition.16).4/SR. lastly. it can necessarily be derogated from. the reasons by which it was actuated͟. in that the legislative measures taken must as such be strictly required by the exigencies of the emergency situation. the slave-trade and servitude (art. the right to freedom of thought. the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation (art. The measures of derogation may not ͞involve discrimination solely on the ground of race.. such as the right to a fair trial for persons threatened with the death penalty. (2) the condition of official proclamation: the existence of a public emergency which threatens the life of the nation must be ͞officially proclaimed͟. the right to freedom from slavery. (7) the condition of international notification. 25. 23. secondly. The State party envisaging a derogation must be facing a situation of exceptional threat that jeopardizes the nation͛s life. 22). the right not to be subjected to arbitrary or unlawful interference with one͛s privacy. (3) the condition of non-derogability of certain obligations. the right to freedom from torture or cruel. as well as the right to have access to public service (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. This condition means that the State party can only take measures derogating from its ͞obligations under the . Cassin of France. the right to peaceful assembly (art.11). colour. Consequently.14). 31 Article 4 (1): In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed. 16 and 18 may be made under this provision. As was explained during the drafting of article 4. 17.19). the right to a fair hearing in criminal and civil cases by an independent and impartial tribunal (art. and. prohibition of war propaganda and of advocacy of national. the purpose thereof was ͞to prevent States from derogating arbitrarily from their obligations under the Covenant when such an action was not warranted by events͟30. lastly. the right to freedom of opinion and of expression (art. some rights may not be derogated from because they are considered to be ͞inherent to the Covenant as a whole͟. because a specific right is not listed in article 4(2). thus excluding minor or even more serious disturbances that do not affect the functioning of the State͛s democratic institutions or people͛s lives in general. the right to marry freely. 29 8(1) and (2)). 16) and. However.. ICCPR. (6) the condition of non-discrimination. Article 4 of the ICCPR is known as the Derogation 29 Clause . 8 (paragraphs 1 and 2). 15). 11). 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. religion and language (art. (4) the condition of strict necessity. 30 UN doc. home or correspondence or to unlawful attacks on one͛s honor and reputation (art.13). para. 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.15). 20. (5) the condition of consistency with other international legal obligations. the right to be registered upon birth and the right to a nationality (art.UP Law B2009 Reviewer (Karichi Edition)   Page 84 of 130 one͛s own country [art. In this notification it must describe ͞the provisions from which it has derogated and . religion or social origin͟ (art. the right to vote in periodic elections by universal and equal suffrage and secret ballot. 13. 4(1) in fine). to found a family and to equal rights and responsibilities of spouses as to marriage. any individual measure taken on the basis of that legislation must likewise be strictly proportionate. religion or social origin. (2) the inter-State communications 32 33 procedure . 16). conscience and religion (art. How are the provisions of the ICCPR implemented? Under the ICCPR and its Optional Protocol. 26. sex. 7). 24. the condition of strict necessity compels a narrow construction of the principle of proportionality. 11.18). 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 . by immediately submitting a notification of derogation to the other States parties through the Secretary-General. the right to recognition as a person before the law (art. 19. p. 27. 16. Can states derogate from their legal obligations under the ICCPR? Are there non-derogable rights? YES. the right to freedom of association (art. explanation given by Mr.. 18. 7. E/CN. and (3) the individual communications procedure .

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

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

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

Does a textual interpretation of the Tribunal͛s Statute warrant the conclusion that discriminatory intent is necessary for all crimes against humanity? NO. such as physical or mental disability. of the further ground of gender) in the statements made in the Security Council by three of its members. Such an interpretation of Article 5 would create significant lacunae by failing to protect victim groups not covered by the listed discriminatory grounds. 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. including those which. These obligations. provided it is understood that the two aforementioned conditions ʹ that the crimes must be committed in the context of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts. declaring that discriminatory intent is not a requirement for crimes against humanity) 1. the extermination of ͞class enemies͟ in the Soviet Union during the 1930s (admittedly. are: 1. such obligations having been found to have been breached. Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. may not have been perpetrated on political. Such intent is only made necessary for one sub-category of those crimes. ͞purely personal motives͟ do not acquire any relevance for establishing whether or not a crime against humanity has been perpetrated. Appeals Court reversed the decision. not in times of armed conflict) and the deportation of the urban educated of Cambodia under the Khmer Rouge between 1975-1979. this requirement is not laid down for all crimes against humanity. in one case. which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons. while fulfilling all the conditions required by the notion of such crimes. as in the case of Nazi conduct before the Second World War. Whether or not all crimes against humanity require a discriminatory intent (Trial Chamber held in the affirmative. Can crimes against humanity be committed for purely personal reasons? YES. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. the socalled "Open Door Policy". if it were otherwise. However. one fails to see why they should have seriously restricted the class of offences coming within the purview of ͞crimes against humanity͟. the World War II. The weight of authority supports the proposition that crimes against humanity can be committed for purely personal reasons. The experience of Nazi Germany demonstrated that crimes against humanity may be committed on discriminatory grounds other than those enumerated in Article 5 (h). racial and religious grounds͟? This specification would be illogical and superfluous. a nexus between the specific acts allegedly committed by the accused and the armed conflict. Obligations to preserve for the world the principle of equal and impartial trade with all parts of China. 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. 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. an occurrence that took place in times of peace.UP Law B2009 Reviewer (Karichi Edition)   Page 88 of 130 widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern. generally speaking. or sexual preference. A fortiori. namely ͞persecutions͟ provided for in Article 5 (h). the Appeals Chamber does not consider it necessary to further require. 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. The interpretation of Article 5 in the light of its object and purpose bears out the above propositions. 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. as a substantive element of mens rea. racial or religious grounds as specified in paragraph (h) of Article 5. age or infirmity. The ordinary meaning of Article 5 makes it clear that this provision does not require all crimes against humanity to have been perpetrated with a discriminatory intent. The aim of those drafting the Statute was to make all crimes against humanity punishable. For example. 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. Thus to convict an accused of crimes against humanity. 2. 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. 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. EXCEPT to the extent that this condition is a consequence or a restatement of the other two conditions mentioned. together with their corresponding sources.) as having been committed during the entire period immediately preceding. Consequently. the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal͛s Statute. There is nothing in the Statute. A logical construction of Article 5 also leads to the conclusion that. why should Article 5(h) specify that ͞persecutions͟ fall under the Tribunal͛s jurisdiction if carried out ͞on political. Similarly. and during. 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. in the words of the Trial Chamber. Indeed. ͞fitted into such a pattern͟ ʹ are met. United States Declaration of 1901 Identic Notes of 1908 Nine-Power Treaty of 1922 Covenant of the League of Nations of 1920 2. in the opinion of the Appeals Chamber. however. B. United States Declaration of 1900 to 1901 Identic Notes of 1908 Nine-Power Treaty of 1922 . Very long. In light of the humanitarian goals of the framers of the Statute. or to require proof of the accused͛s motives. Obligations to preserve the territorial and administrative independence of China.

and use of opium and analogous drugs. 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. 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. . traffic in. or mediation. 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. 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. 6. 3. 7. 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. Hague of 1899 Hague of 1907 Pact of Paris of 1928 8. Obligations designed to ensure the pacific settlement of international disputes. . or arbitration. of 1919 In addition. 1945) would be the only crimes prosecuted.W. 2. The Charter specifically provides . Geneva Red Cross of 1929 Geneva P. 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. the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law. with its inevitable and terrible consequences. The maxim 'nullum crimen sine lege' is not a limitation of sovereignty but is in general a principle of justice. Obligations to suppress the manufacture. Hague IV of 1907. War is the act of a nation for which there is no individual responsibility under international law. Opium Convention of 1912 League of Nations of 1925 Opium Convention of 1931 4. In the opinion of the Tribunal. and that those who plan and wage such a war. These jurisdictional defenses are: 1. 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)). . Obligations relative to humane conduct in warfare. Obligations to keep inviolate the territory of neutral Powers. 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. Hague III of 1907 9. 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. The provisions of the Charter are "ex post facto" legislation and therefore illegal. 5. Obligation to give previous warning before commencing hostilities. and so far from it being unjust to punish him. 4. 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. The true test which is found in varying degrees in the criminal law of most nations is not the existence of the order but whether moral choice was in fact possible͟. the Tribunal ratiocinated: . 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. '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. Four-Power Treaty of 1921 Notes to Netherlands and Portugal of 1926 Covenant of the League of Nations of 1920 5. .O.UP Law B2009 Reviewer (Karichi Edition)   Page 89 of 130 3. Obligations to solve disputes between nations by diplomatic means. Identic Notes of 1908 Four-Power Treaty of 1921 Nine-Power Treaty of 1922 Hague of 1907 Pact of Paris of 1928 7. After the signing of the pact any nation resorting to war as an instrument of national policy breaks the pact. Hague V of 1907 6. 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. Obligations to respect the territory of Powers interested in the Pacific.' This provision is in conformity with the laws of all nations . are committing a crime in so doing. The Tribunal also established the rationale for holding responsible government officials for the ill-treatment of prisoners during the war. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. it would be unjust if his wrong were allowed to go unpunished. The question is what was the legal effect of this pact (Pact of Paris August 27.

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

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

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

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

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

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

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

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

Medical aircraft. Nevertheless. they shall continue to carry out. those emblems are also recognized by the terms of the present Convention. in proportion to the number of prisoners and the distribution of the said personnel in the camps. The Distinctive Emblem Art. 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. shall be respected and protected in all circumstances. 38. 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. is retained as the emblem and distinctive sign of the Medical Service of armed forces. as well as chaplains attached to the armed forces. Nevertheless. Medical Transports Art. The material and stores defined in the present Article shall not be intentionally destroyed. in accordance with their professional ethics. shall be retained only in so far as the state of health. They shall bear. the red crescent or the red lion and sun on a white ground. Personnel designated in Articles 24 and 26 who fall into the hands of the adverse Party. valuables and instruments belonging to them. they shall not. the wounded and sick. times and on routes specifically agreed upon between the belligerents concerned. Parties to the conflict may determine by special agreement the percentage of personnel to be retained. 28. their medical and spiritual duties on behalf of prisoners of war. Buildings and Material Art. In the event of a landing thus imposed. 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. 33. formed by reversing the Federal colours. however. During hostilities the Parties to the conflict shall make arrangements for relieving where possible retained personnel. flights over enemy or enemyoccupied territory are prohibited. As a compliment to Switzerland. Medical aircraft shall obey every summons to land. but may not be diverted from their purpose as long as they are required for the care of wounded and sick. they shall be subject to the laws of war. they shall not be deemed prisoners of war. the heraldic emblem of the red cross on a white ground. CAPTURED HEALTH WORKER/HELPERS Art. (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. while flying at heights. Art. The Detaining Power shall put at their disposal the means of transport required. they shall take with them the effects. In all questions arising out of their duties. personal belongings. including those of the societies designated in Article 26. The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law. and the chaplains. Art. in place of the red cross. The medical personnel shall be treated according to Article 24 and the Articles following. and under the authority of its competent service. In the event of an involuntary landing in enemy or enemyoccupied territory. Chapter VI. be required to perform any work outside their medical or religious duties. 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. Chapter VII. as soon as a road is open for their return and military requirements permit. but shall be respected by the belligerents. Personnel whose retention is not indispensable by virtue of the provisions of Article 28 shall be returned to the Party to the conflict to whom they belong. the spiritual needs and the number of prisoners of war require. Art.UP Law B2009 Reviewer (Karichi Edition)   Page 98 of 130 administration of medical units and establishments. aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment. On their departure. provided that they make previous arrangements for the welfare of the wounded and sick who are nursed in them. material and stores of fixed medical establishments of the armed forces shall remain subject to the laws of war. that is to say. preferably those of the armed forces to which they themselves belong. As from the outbreak of hostilities. For this purpose. in case of urgent military necessity. clearly marked. Personnel thus retained shall not be deemed prisoners of war. 30. the Parties to the conflict shall agree regarding the corresponding seniority of the ranks of their medical personnel. The material of mobile medical units of the armed forces which fall into the hands of the enemy. The selection of personnel for return under Article 30 shall be made irrespective of any consideration of race. 36. as well as the crew of the aircraft shall be prisoners of war. the distinctive emblem prescribed in Article 38. the aircraft with its occupants may continue its flight after examination. upper and lateral surfaces. Chapter V. Transports of wounded and sick or of medical equipment shall be respected and protected in the same way as mobile medical units. The buildings. (c) Although retained personnel in a camp shall be subject to its internal discipline. shall not be attacked. from the outbreak of hostilities. and shall settle the procedure of such relief. 40. Pending their return. 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. if any. The personnel designated in Article 24 and in Articles 26 and 27 shall wear. Within the framework of the military laws and regulations of the Detaining Power. this medical officer. the commanders of forces in the field may make use of them. a water-resistant armlet . affixed to the left arm. 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. together with their national colours on their lower. Unless agreed otherwise. 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. 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. in the case of countries which already use as emblem. Art. Should such transports or vehicles fall into the hands of the adverse Party. 31. but preferably according to the chronological order of their capture and their state of health. religion or political opinion. shall be reserved for the care of wounded and sick.

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

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

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

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

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

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. Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone. In such cases. first names. but may in no case be taken away from him. in so far as is allowed by the laws of the Power on which they depend. bear the signature or the fingerprints. Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. or if the said camp is fenced in. As far as possible the card shall measure 6. with an identity card showing the owner's surname. of the owner. shall be handed over to the medical service. owing to wounds or sickness.UP Law B2009 Reviewer (Karichi Edition)   Page 104 of 130 Measures of reprisal against prisoners of war are prohibited. personal or serial number or equivalent information. Part III. of the rights such capacity confers except in so far as the captivity requires. 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. Effects and articles used for their clothing or feeding shall likewise remain in their possession. Except in particular cases which are justified by the interest of the prisoners themselves. Sums of money carried by prisoners of war may not be taken away from them except by order of an officer. nor any other form of coercion. Beginning of Captivity Art 17. would run greater risks by being evacuated than by remaining where they are. is bound to give only his surname. horses. the engagements of their paroles or promises. as soon as possible after their capture. At no time should prisoners of war be without identity documents. legibly inscribed with the name. Prisoners of war who are paroled or who have given their promise in conformity with the laws and regulations so notified. equivalent information. insulted. Prisoners of war interned in unhealthy areas. Prisoners of war shall be evacuated. No prisoner of war shall be compelled to accept liberty on parole or promise. Sums in the currency of the Detaining Power. the procedure laid down for sums of money impounded shall apply. 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. Prisoners of war who refuse to answer may not be threatened. regimental. or where the climate is injurious for them. army. Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. or exposed to unpleasant or disadvantageous treatment of any kind. may be inflicted on prisoners of war to secure from them information of any kind whatever. General Observations Art 21. Art 18. personal or serial number. and after the amount and particulars of the owner have been recorded in a special register and an itemized receipt has been given. No physical or mental torture. 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. they shall not be interned in penitentiaries. Art 14. rank and unit of the person issuing the said receipt. owing to their physical or mental condition. The identity of such prisoners shall be established by all possible means. and army. rank. may be temporarily kept back in a danger zone. Every prisoner of war. Such measures shall be taken particularly in cases where this may contribute to the improvement of their state of health. Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war. shall be removed as soon as possible to a more favourable climate. If he wilfully infringes this rule. beyond certain limits. when such articles are withdrawn. Art 22. Section II. Upon the outbreak of hostilities. The Detaining Power may not restrict the exercise. Prisoners of war who. or failing this. Prisoners of war may be partially or wholly released on parole or promise. Prisoners of war are entitled in all circumstances to respect for their persons and their honour. decorations and articles having above all a personal or sentimental value may not be taken from prisoners of war. The identity card shall be shown by the prisoner of war upon demand. any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. shall be placed to the credit of the prisoner's account as provided in Article 64. The identity card may. either within or without its own territory. furthermore. 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. date of birth. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions. and may bear. regimental. both towards the Power on which they depend and towards the Power which has captured them. The Detaining Power shall supply such documents to prisoners of war who possess none. the camp where they are interned. as well. The Detaining Power may withdraw articles of value from prisoners of war only for reasons of security. of not going outside its perimeter. subject to the provisions of the preceding paragraph.5 x 10 cm. The Detaining Power may subject prisoners of war to internment. Captivity Section 1. when questioned on the subject. All effects and articles of personal use. The questioning of prisoners of war shall be carried out in a language which they understand. Art 15. or which are changed into such currency at the prisoner's request. are unable to state their identity. to camps situated in an area far enough from the combat zone for them to be out of danger. military equipment and military documents. even if such effects and articles belong to their regulation military equipment. and date of birth. 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. except arms. Only those prisoners of war who. . Internment of Prisoners of War Chapter I. and shall be issued in duplicate. Such objects. he may render himself liable to a restriction of the privileges accorded to his rank or status. It may impose on them the obligation of not leaving. 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. Badges of rank and nationality. are bound on their personal honour scrupulously to fulfil. first names and rank. likewise their metal helmets and gas masks and like articles issued for personal protection. or both. Art 19. shall remain in the possession of prisoners of war.

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

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

language and customs as the prisoners of war whom he represents. II. III. furthermore. Art 85. Failing a choice of an advocate or counsel by . in accordance with the foregoing paragraphs. even if convicted. no proceedings or punishments contrary to the provisions of this Chapter shall be allowed. he is not bound to it by any duty of allegiance. or of an ally of the said Power. a list of persons qualified to present the defence. at an indicated address. the Protecting Power shall find him an advocate or counsel. it must inform the Protecting Power of the reason for such refusal. language or customs. 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. if he deems necessary. even if it is a repeated offence. (3) Fatigue duties not exceeding two hours daily. regulations and orders in force in the armed forces of the Detaining Power. Art 102. (2) he has left the territory under the control of the Detaining Power. The prisoner of war shall be entitled to assistance by one of his prisoner comrades. Art 93. 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. 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. In all cases the prisoners' representative must have the same nationality. Disciplinary Sanctions Art 89. second paragraph. If the death penalty is pronounced on a prisoner of war. Juridicial Proceedings Art 99. in the territorial waters of the Detaining Power. A prisoner of war shall be subject to the laws. General Provisions Art 82. Art 91. such as offences against public property. Art 100. prisoners of war distributed in different sections of a camp. Prisoners of war who have made good their escape in the sense of this Article and who are recaptured. Escape or attempt to escape. on request. 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. whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power. the benefits of the present Convention. in accordance with Article 87. the detailed communication provided for in Article 107. such acts shall entail disciplinary punishments only. Art 101. brutal or dangerous to the health of prisoners of war. (4) Confinement. 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 punishment referred to under (3) shall not be applied to officers. 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. and that he is in its power as the result of circumstances independent of his own will. A prisoner of war who is recaptured shall be handed over without delay to the competent military authority. to the calling of witnesses and. The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has. 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. to defence by a qualified advocate or counsel of his own choice. regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable. been particularly called to the fact that since the accused is not a national of the Detaining Power. Prisoners of war who aid or abet an escape or an attempt to escape shall be liable on this count to disciplinary punishment only. 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. In no case shall disciplinary punishments be inhuman. 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. shall not be liable to any punishment in respect of their previous escape. even if it is a repeated offence. Thus. 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. the drawing up or use of false papers. 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. If any law. to the services of a competent interpreter. Failing a choice by the prisoner of war. However. 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. the provisions of the present Chapter have been observed. the said ship not being under the control of the last named Power.UP Law B2009 Reviewer (Karichi Edition)   Page 107 of 130 Where the Detaining Power refuses to approve a prisoner of war elected by his fellow prisoners of war. and if. Art 92. in force at the time the said act was committed. In conformity with the principle stated in Article 83. The Detaining Power shall deliver to the said Power. Penal and Disciplinary Sanctions I. (3) he has joined a ship flying the flag of the Power on which he depends. shall have for each section their own prisoners' representative. Art 105. (2) Discontinuance of privileges granted over and above the treatment provided for by the present Convention. or those of an allied Power. He shall be advised of these rights by the Detaining Power in due time before the trial. and shall have at least one week at its disposal for the purpose. theft without intention of self-enrichment. 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. Chapter III. shall occasion disciplinary punishment only. regulations or orders. Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain. or the wearing of civilian clothing. according to their nationality. or of an allied Power.

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

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

and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. are not left to their own resources. air and naval forces in order to obviate the possibility of any hostile action. on race. When the Parties concerned have agreed upon the geographical position. take the necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to the . The fact that sick or wounded members of the armed forces are nursed in these hospitals. in all circumstances. and that their maintenance. however. 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. 18. and their manners and customs. Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949. administration. and under due safeguards for the observance of the principles stated in the first paragraph. The Parties to the conflict shall take the necessary measures to ensure that children under fifteen. their family rights. the infirm and maternity cases. The presence of a protected person may not be used to render certain points or areas immune from military operations. or by some other means. Art. if such there be. endeavour to arrange for all children under twelve to be identified by the wearing of identity discs. They shall. The agreement shall fix the beginning and the duration of the neutralization of the zone. 31.24.UP Law B2009 Reviewer (Karichi Edition)   Page 110 of 130 Nationals of a State which is not bound by the Convention are not protected by it. General Protection of Populations Against Certain Consequences of War Art. cease only after due warning has been given. or any form of indecent assault. as far as possible. while they reside in the zones. 28. However. it is recommended that such hospitals be situated as far as possible from such objectives. shall not be considered to be acts harmful to the enemy. 15. and who. a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. 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. Art. the exercise of their religion and their education are facilitated in all circumstances. 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. age and sex. enforced prostitution. furthermore. They shall at all times be humanely treated. Protected persons are entitled. Part II. a reasonable time limit and after such warning has remained unheeded. No physical or moral coercion shall be exercised against protected persons. The provisions of Part II cover the whole of the populations of the countries in conflict. shall not be considered as protected persons within the meaning of the present Convention. Art. however. neutralized zones intended to shelter from the effects of war the following persons. Provisions common to the territories of the parties to the conflict and to occupied territories Art. Their education shall. in particular to obtain information from them or from third parties. or by the Geneva Convention for the Amelioration of the Condition of Wounded. (b) civilian persons who take no part in hostilities. and nationals of a co-belligerent State. enemy land. Part III. in the regions where fighting is taking place. if any. and by the special agreements referred to in the foregoing Article. Status and Treatment of Protected Persons Section I. religion or political opinion. In view of the dangers to which hospitals may be exposed by being close to military objectives. food supply and supervision of the proposed neutralized zone. propose to the adverse Party to establish. perform no work of a military character. 34. in particular. in all appropriate cases. Protection may. 27. Without prejudice to the provisions relating to their state of health. their religious convictions and practices. without any adverse distinction based. in so far as military considerations permit. Art. in particular against rape. who are orphaned or are separated from their families as a result of the war. all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are. Art. to respect for their persons. but only if so authorized by the State. or the presence of small arms and ammunition taken from such combatants and not yet been handed to the proper service. outside their humanitarian duties. Art. without any adverse distinction based. The protection to which civilian hospitals are entitled shall not cease unless they are used to commit. either direct or through a neutral State or some humanitarian organization. Any Party to the conflict may. wider in application. be entrusted to persons of a similar cultural tradition. acts harmful to the enemy. and are intended to alleviate the sufferings caused by war. in particular. on race. their honour. Nationals of a neutral State who find themselves in the territory of a belligerent State. may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict. 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. nationality. as defined in Article 13. The taking of hostages is prohibited. religion or political opinion. 19. Art. The Parties to the conflict shall. Women shall be especially protected against any attack on their honour. Art. naming. Civilian hospitals organized to give care to the wounded and sick. without distinction: (a) wounded and sick combatants or non-combatants. Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. 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. 13. 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. 8. The provisions of Part II are.

Aliens in the territory of a party to the conflict Art. shall be entitled to do so. Section III. clothing. previous training and compensation for occupational accidents and diseases. as expeditiously as possible. 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. 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. they shall be authorized to move from that area to the same extent as the nationals of the State concerned. Protected persons who are in occupied territory shall not be deprived. In applying the measures of control mentioned in the present Convention. (2) they shall. 42. unless reasons of security prevent it. (3) they shall be allowed to practise their religion and to receive spiritual assistance from ministers of their faith. to maintain the orderly government of the territory. voluntarily demands internment. in any case or in any manner whatsoever. Art. be the only measure adopted for depriving protected persons of liberty. 47. 35. refugees who do not. 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. acting through the representatives of the Protecting Power. for such offences. 64. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice. unless their departure is contrary to the national interests of the State.UP Law B2009 Reviewer (Karichi Edition)   Page 111 of 130 Section II. he shall be entitled to have refusal reconsidered. the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State. 44. into the institutions or government of the said territory. or the persons concerned object. 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. 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. Art. Upon request. Art. If any person. The penal laws of the occupied territory shall remain in force. internment or imprisonment shall. however. (5) children under fifteen years. be furnished with the reasons for refusal of any request for permission to leave the territory and be given. are prohibited. Art. clothing and equipment. 68. shall be liable to internment or simple imprisonment. Protected persons who commit an offence which is solely intended to harm the Occupying Power. provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began. and to ensure the security of the Occupying Power. Art. he shall be interned by the Power in whose hands he may be. in fact. 40. provided the duration of such internment or imprisonment is proportionate to the offence committed. representatives of the Protecting Power shall. nor a grave collective danger. in principle. of the benefits of the present Convention by any change introduced. (4) if they reside in an area particularly exposed to the dangers of war. 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. 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. transport and health of human beings and which is not directly related to the conduct of military operations. if their state of health so requires. 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. 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. but which does not constitute an attempt on the life or limb of members of the occupying forces or administration. as the result of the occupation of a territory. enjoy the protection of any government. by the provisions concerning aliens in time of peace. sheltering. protected persons shall be allowed to exercise their right of complaint in accordance with Article 30. of the members and property of the occupying forces or administration. the situation of protected persons shall continue to be regulated. . nor by any annexation by the latter of the whole or part of the occupied territory. With the exception of special measures authorized by the present Convention. If the above provisions are infringed. nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power. 38. 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. Art. The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national . Furthermore. nor seriously damage the property of the occupying forces or administration or the installations used by them. If protected persons are of enemy nationality. in order to induce them to work for the Occupying Power. If any such person is refused permission to leave the territory. or during a conflict. in particularly by Article 27 and 41 thereof. In the cases mentioned in the two preceding paragraphs. All protected persons who may desire to leave the territory at the outset of. the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. In any case. Occupied territories Art. 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. and likewise of the establishments and lines of communication used by them. 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 may only be compelled to do work which is normally necessary to ensure the feeding. and if his situation renders this step necessary. receive medical attention and hospital treatment to the same extent as the nationals of the State concerned. the names of all persons who have been denied permission to leave. The Occupying Power may. hours of labour.

Account shall also be taken of the customary diet of the internees. Nationals of the occupying Power who. They shall also have the right to receive any spiritual assistance which they may require. . however. 89. he is not bound to it by any duty of allegiance. would have justified extradition in time of peace. 81. Internees shall also be given the means by which they can prepare for themselves any additional food in their possession. 90. 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. to procure further supplies if required. Internees shall. footwear and change of underwear. it shall be provided free of charge to them by the Detaining Power. Art. Isolation wards shall be set aside for cases of contagious or mental diseases. account being taken of the climate. convicted or deported from the occupied territory. Such persons shall have the right to receive at least one relief parcel monthly. with the exception of breaches of the laws and customs of war. No place other than an internment camp shall be marked as such. in accordance with the provisions of Article 143. Hygiene and Medical Attention Art. General provisions Art.84. The Detaining Power shall give the enemy Powers. Chapter IV. In any case. 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. Proper regard shall be paid to the special treatment due to minors. and if convicted they shall serve their sentences therein. The Detaining Power shall provide for the support of those dependent on the internees. Protected persons shall not be arrested. or whose condition requires special treatment. Art. except for offences committed after the outbreak of hostilities. have the attention of medical personnel of their own nationality. internment camps shall be indicated by the letters IC. Art. 80. Expectant and nursing mothers and children under fifteen years of age. agree upon any other system of marking. internees shall be given all facilities to provide themselves with the necessary clothing. Chapter II. under the direction of a qualified doctor. Internees who work shall receive additional rations in proportion to the kind of labour which they perform. and be unable to procure any. Food and Clothing Art. No deduction from the allowances. Art. The Detaining Power shall not set up places of internment in areas particularly exposed to the dangers of war. 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. Whenever military considerations permit. prosecuted. The Powers concerned may. Sufficient drinking water shall be supplied to internees. Protected persons accused of offences shall be detained in the occupied country. Should any internees not have sufficient clothing. Parties to the conflict who intern protected persons shall be bound to provide free of charge for their maintenance. Chapter III. 91. shall not be arrested. 76. if such dependents are without adequate means of support or are unable to earn a living. in proportion to their physiological needs. Maternity cases and internees suffering from serious diseases. Places of Internment Art. 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. and which will be at least equal to those obtaining in prisons in the occupied country. as well as an appropriate diet. 70. 83. Women shall be confined in separate quarters and shall be under the direct supervision of women. all useful information regarding the geographical location of places of internment. if possible. have sought refuge in the territory of the occupied State. They shall receive the medical attention required by their state of health. whenever the nature of their work so requires.UP Law B2009 Reviewer (Karichi Edition)   Page 112 of 130 of the Occupying Power. shall be given additional food. 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. Daily food rations for internees shall be sufficient in quantity. They shall. before the outbreak of hostilities. Art. Art. be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health. including protective clothing. Internees shall retain their full civil capacity and shall exercise such attendant rights as may be compatible with their status. or of an order denying pardon or reprieve. the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence. Every place of internment shall have an adequate infirmary. Workers shall receive suitable working outfits. through the intermediary of the Protecting Powers. according to the law of the occupied State. or for offences under common law committed before the outbreak of hostilities which. When taken into custody. prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation. for preference. 75. and later on. and to grant them also the medical attention required by their state of health. placed so as to be clearly visible in the daytime from the air. Section IV. In no case shall persons condemned to death be deprived of the right of petition for pardon or reprieve. 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. salaries or credits due to the internees shall be made for the repayment of these costs. Internees shall be accommodated and administered separately from prisoners of war and from persons deprived of liberty for any other reason. Regulations for the treatment of internees Chapter I. where internees may have the attention they require. a surgical operation or hospital care. quality and variety to keep internees in a good state of health and prevent the development of nutritional deficiencies. or during a temporary interruption thereof. The use of tobacco shall be permitted.

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

on condition that such surveillance does not affect the state of their health. through the Information Bureaux provided for in Article 136. Internees who aid and abet an escape or attempt to 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. As soon as circumstances permit. as well as the exact location of their graves. or to facilitate their repatriation. may be subjected to special surveillance. Art. Deaths Art. Upon the outbreak of a conflict and in all cases of occupation. The same shall apply to internees who have been previously sentenced to a punishment depriving them of liberty. in particular children. the fact shall be stated and the reasons given in the death certificate of the deceased. caused or suspected to have been caused by a sentry. Such lists shall include all particulars necessary for the identification of the deceased internees. In no case shall disciplinary penalties be inhuman. properly maintained. or of the occupation of territories. require its various departments . paragraph 3. Chapter XI. sex and state of health. within the shortest possible period. By agreement between the Detaining Power and the Powers concerned. especially in respect of acts committed in connection with an escape. Deaths of internees shall be certified in every case by a doctor. Art. and a death certificate shall be made out. committees may be set up after the close of hostilities. Section V. The Parties to the conflict shall. shall be liable only to disciplinary punishment in respect of this act. and internees who have been detained for a long time. An official record of the death. Bodies may be cremated only for imperative reasons of hygiene. The wills of internees shall be received for safe-keeping by the responsible authorities. even if it is a repeated offence. the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible. 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. The detaining authorities shall ensure that internees who die while interned are honourably buried. duly registered. and a report including such evidence shall be prepared and forwarded to the said Protecting Power.UP Law B2009 Reviewer (Karichi Edition)   Page 114 of 130 (2) discontinuance of privileges granted over and above the treatment provided for by the present Convention (3) fatigue duties. Deceased internees shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. Information Bureaux and Central Agency Art. shall be liable on this count to disciplinary punishment only. The High Contracting Parties shall endeavour. pregnant women and mothers with infants and young children. Article 118. 133. another internee or any other person. In case of cremation. shall not be deemed an aggravating circumstance in cases where an internee is prosecuted for offences committed during his escape. The duration of any single punishment shall in no case exceed a maximum of thirty consecutive days. shall be immediately followed by an official enquiry by the Detaining Power. upon the close of hostilities or occupation. Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist. It shall. on account of the religion of the deceased or in accordance with his expressed wish to this effect. 134. Art. Repatriation and Accommodation in Neutral Countries Art. The evidence of any witnesses shall be taken. internees punished as a result of escape or attempt to escape. furthermore. Internees who are recaptured after having escaped or when attempting to escape. or attempt to escape. 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. the return to places of residence or the accommodation in a neutral country of certain classes of internees. not exceeding two hours daily. 132. Chapter XIII. in connection with the maintenance of the place of internment. to conclude agreements for the release. notwithstanding. wounded and sick. brutal or dangerous for the health of internees. Art. if possible according to the rites of the religion to which they belonged and that their graves are respected. until the completion of the penalty. as well as any death the cause of which is unknown. moreover. If the enquiry indicates the guilt of one or more persons. and not later than the close of hostilities. 130. Art. even if it is a repeated offence. A communication on this subject shall be sent immediately to the Protecting Power. Art. Internees in the territory of a Party to the conflict against whom penal proceedings are pending for offences not exclusively subject to disciplinary penalties. 129. 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. showing the causes of death and the conditions under which it occurred. 136. Escape. Account shall be taken of the internee's age. shall be drawn up in accordance with the procedure relating thereto in force in the territory where the place of internment is situated. to search for dispersed internees. 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. who are subjected to assigned residence or who are interned. (4) confinement. 121. whether such breaches are connected or not. Internment shall cease as soon as possible after the close of hostilities. the Detaining Power shall forward lists of graves of deceased internees to the Powers on whom deceased internees depended. Each of the Parties to the conflict shall. 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. 131. even if the internee is answerable for several breaches of discipline when his case is dealt with. to ensure the return of all internees to their last place of residence. Every death or serious injury of an internee. whether successful or not. give its Bureau information of any measure taken by it concerning any protected persons who are kept in custody for more than two weeks. 120. may be detained until the close of such proceedings and. and marked in such a way that they can always be recognized. endeavour during the course of hostilities. Release. if circumstances require. the repatriation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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Thanks to ceejay balisacan for this portion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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