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CHAPTER 1 THE NATURE OF INTERNATIONAL LAW Customary law—what are regarded as generally

accepted principles of law are in fact an expression

What is International Law? of what traditionally was call natural law
A body of rules and principles of action which are binding upon Some Dissenters International law—a combination of politics,
civilized states in their relation to one another morality and self-interest hidden under the
A law which deals with the conduct of the states and of international smokescreen of legal language
organizations and with their relations inter se, as well as with some of Pragmatic Theory International law is law because it is seen as such by
their relations with persons, whether natural or juridical states and other subjects of international law
Scope of International Law
a. Regulation of space expeditions Public International Law v. Private International Law
b. Division of the ocean floor
c. Protection of human rights Public International Law Private International Law
d. Management of international financial system Referred to as International Law Referred to as Conflict of Laws
e. Regulation of the environment Governs the relationship between and Domestic law which deals with cases
f. Preservation of peace among states and also their relations where foreign law intrudes in the
with international organizations and domestic sphere where there are
Is International Law a Law? individual persons questions of the applicability of
Henkin: It is probably the case that almost all nations observe all foreign law or the role of foreign
principles of international law and almost all of their obligations courts
almost all of the time
Brierly: The ultimate explanation of the binding force of all law is that
man, whether he is a single individual or whether he is associated with CHAPTER 2 SOURCES OF INTERNATIONAL LAW
other men in a state, is constrained, in so far as he is reasonable
being, to believe that order and not chaos is the governing principle of What Sources are
the world in which he lives Domestic Laws—found in statute books and in collections of court decisions
Some Theories about International Law Classifications of Sources
1. Formal sources—various processes by which rules come into existence
Command Theory Austin: Law consists of commands originating from a a. Legislation
sovereign and backed up by threats of sanction if b. Treaty making
disobeyed c. Judicial decision making
d. Practice of states
International law is not law because it does not 2. Material sources—identify what the obligations are
come from a command of a sovereign a. State practice d. Judicial decisions
Consensual Theory International law derives its binding force from the b. UN Resolutions e. Writings of jurists
consent of states c. Treaties
Art. 38(1) of the Statute of the International Court of Justice
Treaties—expression of consent 1. International conventions—establishing rules expressly recognized by
contesting states
Custom—voluntary adherence to common practices, 2. International custom—evidence of a general practice accepted as law
is seen as expression of consent 3. General principles of law recognized by civilized nations
Natural Law Theory Law is derived by reason from the nature of man 4. Subsidiary means for determination of rules of law
a. Judicial decisions
International law—application of natural reason to b. Teachings of the most highly qualified publicists
the nature of the state-person

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Restatement of Foreign Relations Law of the US Dissenting states: subsequent contrary practice

1. Customary Law o Dissenting states are bound by custom unless they had
2. International agreement consistently objected to it while the custom was merely in the
3. General principles common to the major legal system process of formation
o It is also possible that after a practice has been accepted as

Sources of International Law law, contrary practice might arise

1. Custom 4. Generally recognized principles of law
2. Treaties 5. Judicial decisions Fisheries Jurisdiction Case: if the contrary practice should
3. International agreements6. Teachings of highly qualified publicists gain general acceptance, it might instead become the law

Custom or Customary Law Evidence of state practice and opinio juris

A general and consistent practice of states followed by them from a a. Treaties
sense of legal obligation b. Diplomatic correspondence
Elements: c. Statements of national leaders and political advisers
1. Material factor—how state behaves d. Conduct of states
o Elements of Practice of sates or usus
a. Duration—may be either short or long; not the most Instant Custom
important element o A spontaneous activity of a great number of states supporting
a specific line of action
North Sea Continental Shelf Cases: Short duration, by
itself, will not exclude the possibility of practice The Martens Clause
maturing into custom provided that other conditions Until a complete code of laws of war has been issued, inhabitants
were satisfied. State practice should be extensive & & belligerents are protected under the rule on the principles of
uniform in the sense of the provision invoked, and the law of nations as they result from: usages of civilized people,
should have occurred in such a way as to show a general laws of humanity & public conscience
recognition that a rule of law or legal obligation is
involved. 2. Psychological or subjective factor—why they behave the way they
b. Consistency—continuity and repetition

Nicaragua case: for a new customary rule to be formed, not

Asylum Case: Colombia wanted Haya de la Torre be only must the acts concerned amount to a settled practice,
granted safe conduct & be a refuge. Columbia had not but must be accompanied by opinion juris sive necessitas
proven the existence of a constant & uniform practice of
unilateral qualification as a right of the State to refuge
and an obligation upon the territorial state.
c. Generality of the practice of states—uniformity and
generality of practice need not be complete but it must
be substantial

Nicaragua v. US: practice need not be in absolute

uniformity with the purported customary rule as long as it
is consistent with such rules.

Opinio Juris—belief that a certain form of behavior is obligatory

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Determine the rights and duties of states just as individual rights are
determined by contracts
Binding force comes from the voluntary decision of sovereign states to
obligate themselves to a mode of behavior

Treaties and Custom

If the treaty is intended to be declaratory of customary law, it may be
seen as evidence of customary law
Adherence to treaties can be indicative also of adherence to practice as
opinio juris
If treaty comes later than a particular custom, treaty should prevail
If a later treaty is contrary to a customary rile that has the status of
jus cogens, custom will prevail
The later custom, being the expression of a later will, should prevail
A treaty is void if, at the time of its conclusion, it conflicts with a
preemptory norm of general international law
Preemptory norm of general international law = a norm accepted and
recognized by the international community of States as a whole as a

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norm from which no derogation is permitted and which can be 2. Soft Law—―Non-treaty Agreements‖; international agreements not concluded
modified only by a subsequent norm of general international law as treaties and therefore not covered by the Vienna Convention on the
having the same character Law of Treaties
o Administrative Rules—guide the practice of states in relation
General Principles of Law Recognized by Civilized Nations to international organizations
This has reference to principles of municipal law common to the legal
systems of the world
Judicial Decisions
Decisions of the court have no binding force except between the Various names of Treaties
parties and in respect of that particular case a. Conventions c. Covenants e. Protocols g. Modus vivendi
Decisions do not constitute stare decisis b. Pacts d. Charters f. Concordat
Decisions of the ICJ are not only regarded as highly persuasive in
international circles but they have also contributed to the formulation 1969 Vienna Convention on the Law of Treaties
of principles that have become international law Governs treaties between states
Entered into force in January 1980
Teachings of Highly Qualified Writers and “Publicists”
Publicists = institutions which write on international law a. Definition of Treaties
The International Commission An international agreement concluded between States in written form and
b. The Institut de Droit International governed by international law, whether embodied in a single
c. International Law Association instrument or in 2 or more related instruments and whatever its
d. Restatement of Foreign Relations Law of the US particular designation
e. Annual publication of the Hague Academy of International Law Even oral agreement can be binding, however, only written
agreements that are new, come under the provisions of the Vienna
Equity Convention
When accepted, is an instrument whereby conventional or customary law Characteristics to make it binding:
may be supplemented or modified in order to achieve justice 1. Commitment was very specific
Where 2 parties have assumed an identical or a reciprocal obligation, one 2. There was a clear intent to be bound
party which is engaged in a continuing non-performance of that
obligation should not be permitted to take advantage of a similar non- Qatar v. Bahrain: exchange of notes between 2 heads of state
performance of that obligation by the other party considered an international agreement; minutes are not a simple
The Court’s recognition of equity as part of international law is in no record of the meeting, they enumerate commitments parties have
way restricted by the special power conferred upon it to decide a case consented; they create rights and obligations; they constitute an
ex aequo et bono, if the parties agree thereto international agreement
Kinds of Equity:
1. Intra legem—within the law; the law is adapted to the facts of the Norway v. Denmark: oral declaration can be binding
2. Praeter legem—beyond the law; used to fill the gaps within the Australia v. France and New Zealand: unilateral declarations
law concerning legal or factual situations may create legal obligations; if
3. Contra legem—against the law; refusal to apply the law which is given publicly with an intent to be bound, it is binding
seen as unjust
Functions of Treaties
Other Supplementary Evidence a. Sources of international law
1. UN Resolutions—generally considered merely recommendatory but if b. Charter of international organizations
they are supported by all the states, they are an expression of opinio c. Used to transfer territory, regulate commercial relations, settle
juris communis disputes, protect human rights, guarantee investments

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Different Kinds of Treaties reaction. Facts to prove: text of Warsaw Convention, drafter by
continental jurists, consistent with history of Warsaw Convention,
Multilateral Treaties Open to all states of the world; Create the norms conduct of the parties, US Court precedence
which are the basis for a general rule of law
Invalidity of Treaties
Can either be Codification Treaties or ―Law Making 1. Error—relates to a fact or situation which was assumed by that State to
Treaties‖, or both exist at the time when the treaty was concluded and formed
2. Fraud—State has been induced to conclude a treaty
Treaties that create Operate through the organs of the different states
3. Corruption of a Representative of a State
Collaborative 1. Universal scope
4. Coercion of a Representative of a State
Mechanism 2. Regional
5. Coercion of a State by the threat or use of force
Bilateral Treaties In the nature of contractual agreements which create
shared expectations such as trade agreements of 6. Violation of jus cogens—treaty is void if, at the time of its conclusion,
it conflicts with a preemptory norm of general international law
various forms; ―Contract Treaties‖
Amendment and Modification of Treaties
The Making of Treaties
Amendment—formal revision done with the participation, at least in its
1. Negotiation—foreign ministries, diplomatic conferences
initial stage, by all the parties to the treaty
2. Power to negotiate
Modification—involves only some parties
3. Authentication of text—signing of the document; so that states will know
the contents & avoid misunderstanding Termination of Treaties
4. Consent to be bound:
Terminated or suspended according to the terms of the treaty or with
a. Signature e. Approval
the consent of the parties
b. Exchange of Instruments f. Accession
1. Material Breach
c. Ratification g. Other means if so agreed
a. Repudiation of the treaty not sanctioned by the present
d. Acceptance
5. Accession to a treaty—states which did not participate in the initial b. Violation of a provision essential to the accomplishment of the
negotiation may express their consent to be bound object or purpose of the treaty
6. Reservations—unilateral statement, however phrased or named, made by 2. Supervening Impossibility of Performance
a State, when signing, ratifying, accepting, approving or acceding to a
o Results from the permanent disappearance or destruction of
treaty, whereby it purports to exclude or to modify the legal effect of
an object indispensable for the execution of the treaty
certain provisions of the treaty in their application to the State
3. Rebus sic stantibus
7. Entry into force of treaties—date agreed or once consent given (but
o Resulted in a radical transformation of the extent of the
provisional application can also apply)
obligations imposed by it, may, under certain conditions,
8. Application of treaties
afford the party affected a ground for invoking the
o PACTA SUNT SERVANTA—every treaty in force is BINDING upon the
termination or suspension of the treaty
parties and must be PERFORMED by them in GOOD FAITH
o A party may NOT INVOKE INTERNAL LAW as justification for its
Fisheries Jurisdiction Case: changes of circumstances which must be
failure to perform a treaty
regarded as fundamental or vital are those which imperil the existence
o It is binding upon each party in respect of its entire territory unless a
or vital development of one of the parties. Change in circumstance
different intention appears in the treaty or is otherwise established
alleged by Iceland cannot be said to have transformed radically the
9. Interpretation of Treaties
a. Objective approach—interpretation according to the ordinary extent of the jurisdictional obligation.
meaning of the words
b. Teleological approach—interpretation according to the telos or Namibia Case: if revocation only takes place with the concurrence of
purpose of the treaty the mandatory (South Africa), it would be contrary to the general
c. Subjective approach—honors special meaning given by the parties principle of law governing termination on account of the breach and
would be an impossibility. Consent of the wrongdoers to such a form of
Air Frace v. Saks: airplane passenger became 1 ear deaf. ―Accident‖ termination cannot be required.
as an unusual or unexpected happening, not passenger’s own internal

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Danube Dam Case: impossibility of performance may not be invoked Municipal Law in International Law
when it results from that party’s own breach. Changes of political nature, Follows the dualist tradition and blocks domestic law from entry into the
reduced economic viability of the project, and progress of international arena
environmental knowledge and international environment law are not of A state which has violated a provision of international law cannot
such nature that would radically transform obligations. Violation of justify itself by recourse to its domestic law
other treaty rules or of general international law may justify taking of A state which has entered into an international agreement must
certain measures but not constitute a ground for termination. modify its law to make it conform to the agreement
Czechoslovakia did not act unlawfully when it constructed works.
International Law in Domestic Law
Procedure for the Termination of Treaties How does international law become part of domestic law for dualists?
1. Notify other parties of ground and measure proposed 1. Doctrine of Transformation
2. If no objection, carry out the measure proposed o It must be expressly and specifically transformed into
3. If there is an objection, follow Art. 33 domestic law through the appropriate constitutional
machinery such as an act of Congress or Parliament
Authority to Terminate o Treaties do not become part of the law of a state unless it is
Belongs to the one who has authority to enter into the treaty consented to by the state
In the Philippines, authority to conclude treaties is shared between the 2. Doctrine of Incorporation
Senate and the President o They become part of the law of the land
Succession to Treaties Philippines adheres to the dualist theory and at the same time adopts
Clean Slate Rule: newly independent state is not bound to maintain in the incorporation theory and thereby makes international law part of
force or to become a party to any treaty by reason only of the fact that at domestic law
International law can be used by Philippine courts to settle domestic
the date of the succession of states, the treaty was in force in respect of
the territory to which the succession of state relates
Art. 2, Sec. 2 of the Constitution: only customary law and treaties
which have become part of customary law become part of Philippine
law by incorporation
Conflict between International Law and Domestic Law: International Rule
Dualism v. Monism
Before an international tribunal, a state may not plead its own law as an
excuse for failure to comply with international law
Municipal Law International Law Exception: Art. 46 of Vienna Convention = in cases where the constitutional
Dualist or As to Product of local Treaties and custom violation was manifest and concerned a rule of its internal law of
Pluralist Theory source custom or of grown among states
fundamental importance
Manifest = objectively evident to any State conducting itself in the matter
*when As to Regulates relations Regulates relations in accordance with normal practice and in good faith
international and relations between individual between states
municipal law are they persons under the Conflict between International Law and Domestic Law: Municipal Rule
in conflict, regulate state Domestic courts are bound to apply the local law
Municipal law As to their Law of sovereign Law between Should a conflict arise between an international agreement and the
must prevail substance over individuals sovereign states Constitution, the treaty would not be valid and operative as domestic
Monism or Two theories: law
Monistic Theory A. Municipal law subsumes and is superior to Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the
international law Supreme Court to declare a treaty unconstitutional; however, even if
*International and B. International law is superior to Domestic Law declared unconstitutional, the treaty will not lose its character as an
Municipal laws (supported by Kelsen) international law
belong to only
one system of law Head Money Case: treaty is not superior to acts of Congress

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Whitney v. Robertson: courts will construe a treaty and an act of 4. Capacity to enter into relations with other States—
legislation as to give effect to both. But if the two are inconsistent, SOVEREIGNTYindependence from outside control
the one last in date will control the other. the unsatisfied country will
Principle of Self-determination—sovereignty as an element of a state is
have to present its complaint to the executive, not to the courts.
related but not identical to this principleby virtue of this, people freely
determine their political status and freely pursue their economic,
social and cultural development
Levels of claim to Self-determination
Subjects of International Law—entities endowed with rights and obligations in 1. Establishment of New State—the claim by a group within an
the international order and possessing the capacity to take certain kinds of established state to break away and form an new entity
action on the international plane 2. Does not involve Establishment of New State—simply involves claims
a. To be free from external coercion
Those with international personality
b. To overthrow effective rulers and establish a new government—the
Objects of International Law—those who indirectly have rights under or are assertion of the right of revolution
beneficiaries of international law through subjects of international law c. Of people within an entity to be given autonomy
International law has not recognized a right of secession from a legitimately
States—predominant actors; a community of persons more or less numerous, existing state
permanently occupying a definite portion of territory, independent of external
control, and possession an organized government to which the great body of Recognition of States—the act of acknowledging the capacity of an entity to
inhabitants render habitual obedience exercise rights belonging to statehood

Commencement of their Existence Can an entity claim to be a state before it is recognized by other states?
Declaratory Theory Constitutive Theory
State, as a person of international law, should possess the following
qualifications: (Montevideo Convention of 1933 on Rights and Duties of Recognition is merely ―declaratory‖ of Recognition ―constitutes‖ a state
the existence of the state
1. Permanent population—PEOPLEa community of persons sufficient Its being a state depends upon its It is what makes a state a state and
in number and capable of maintain the permanent existence of the possession of the required elements confers legal personality on the entity
community and held together by a common bond of law and not upon recognition
States may decide to recognize an
2. Defined territory—an entity may satisfy this requirement even if entity as a state even if it does not
its boundaries have not been finally settled, if one or more of its have all the elements of a state
boundaries are disputed, or if some of its territory is claimed by
another state Recognition of Government—act of acknowledging the capacity of an entity to
An entity does not necessarily cease to be a state even if all its exercise powers of government of a state
territory has been occupied by a foreign power or if it has If a change in government in an existing state comes about through
otherwise lost control of its territory temporarily ordinary constitutional procedure = recognition by others comes as a
matter of course
3. Government—that institution or aggregate of institutions by which
an independent society makes and carries out those rules of action THE TINOCO ARBITRATION
which are necessary to enable men to live in a social state FACTS:
It is the National Government that has legal personality and it is Government of Costa Rica was overthrown by Tenneco. The latter’s
such that is internationally responsible for the actions of other government entered into contracts with British corporations. When
agencies and instrumentalities of the state Tenneco retired and left the country, the old constitution was restored and
Temporary absence of government does not terminate the a Law of Nullities was passed annulling contracts concluded during the
existence of a state Tenneco regime. Great Britain made claims on the basis of the injuries
done to its nationals caused by the annulments.

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ISSUE: Succession of States
What is the status of the Tinoco regime in international law? Views on Succession
A. The new state succeeds to no rights or obligations of the
HELD: predecessor state but begins with a tabula rasa
The non-recognition by other nations of a government claiming to be a B. Successor state assumes all obligations and enjoys all the rights of
national personality, is usually appropriate evidence that it has not the predecessor
attained the independence and control entitling it by international law to
be classed as such Issues on Succession of States
The rule that a revolution contrary to the fundamental law of the existing 1. Succession to territory—when a state succeeds another state with
government cannot establish a new government is not true in international particular territory, the capacities, rights and duties of the
law. predecessor state with respect to that territory terminate and are
assumed by the successor state
Non-recognition may have aided the succeeding government to come into 2. Succession to state property—this is subject to agreement between
power; but subsequent presentation of claims based on the de facto predecessor and successor states
existence of the previous government does not work an injury to the
3. Succession to contracts—this is subject to agreement between the
succeeding government in the nature of a fraud or breach of good faith.
states concerned
UPRIGHT v. MERCURY BUSINESS MACHINES CO. o Responsibility for the public debt of the predecessor, and rights and
obligations under its contracts remain with the predecessor state but
is subject to certain exceptions
Plaintiff, and individual, sues as the assignee of a trade acceptance drawn
on and accepted by defendant in payment for business typewriters sold and
4. Succession to treaties
delivered to it by a foreign corporation. It alleges that the foreign
a. Moving Treaty Rule / Moving Boundaries Rule—when part of the
corporation is the creature of the East German Government, a government
territory of a state becomes territory of another state, the
not recognized by US.
international agreements of the predecessor state cease to have
effect in respect of the territory
o Relief from treaty obligation is rebus sic stantibus
A foreign government, although not recognized by the political arm of US
b. When a state is absorbed by another state, international agreements
Government, may nevertheless have de facto existence which is juridically of the absorbed states are terminated
c. Clean Slate Theory—when part of a state becomes a new state, the
new state does not succeed to the international agreements to which
In traditional law, the acts of such government may affect private rights
the predecessor state was a party unless, expressly or impliedly, it
and obligations arising either as a result of activity in, or with persons or
accepts such agreements
corporations within, the territory controlled by such de facto government. d. Uti possidetis Rule—pre-existing boundary and other territorial
agreements continue to be binding notwithstanding
Consequence of Recognition or Non-Recognition
A government, once recognized, gains increased prestige and stability a. Fundamental Rights of States
Doors of funding agencies are opened 1. Independence—capacity of a state to provide for its own well-being
b. Loans are facilitated and development free from the domination of other states
c. Access to foreign courts and immunity from suit are gained o Right to exercise within its portion of the globe, to the exclusion of
d. Military and financial assistance also come within reach others, the functions of a state
Absence of formal recognition bars an entity from all these benefits o Restrictions upon a state’s liberty either from customary law or from
or, at least, access to them may be suspended treaties do not deprive a state of independence
Admission of a government to the UN does not mean recognition by all o There is duty not to interfere in the internal affairs of other states
members but only to the extent of the activities of the organization o Rights flowing from independence:
Recognition of a regime is terminated when another regime is a. Jurisdiction over its territory and permanent population
recognized b. Right to self-defense
c. Right of legation

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2. Equality—equality of legal rights irrespective of size or power of the Advisory Opinion on the Use of Nuclear Weapons
state International organizations—governed by the Principle of Specialtythey are
o Within the General Assembly, the doctrine means one state, one invested by the States which create them with powers, the limits of which
vote are a function of the common interests whose promotion those
States entrust to them.
3. Peaceful Co-Existence—mutual respect for each other’s territorial integrity and Powers conferred on international organizations—normally the subject of
sovereignty, mutual non-aggression, non-interference in each other’s affairs an express statement in their constituent instruments but in order to
and the principle of equality achieve their objectives, they possess subsidiary powers which are not
expressly provided for in the basic instruments which govern their
Some Incomplete Subjects activities.
1. Protectorates—dependent states which have control over their
internal affairs but whose external affairs are controlled by another
state; referred to as Immunities—based on the need for the effective exercise of their functions and
a. Autonomous states not from sovereignty
b. Vassal states These immunities come from the conventional instrument creating
c. Semi-sovereign them
d. Dependent sates
2. Federal state—a union of previously autonomous entities HELD:
o The central organ will have personality in international law but the IRRI was organized and registered with SEC as a private corporation subject
extent of international personality of the component entities can be to all laws and regulations. However, by virtue of PD 1620, it was granted
a problem the status, prerogatives, privileges and immunities of an international
3. Mandated and Trust Territories—territories placed by the League of
nations under one or other of the victorious allies of WWI SC has consistently recognized the immunity granted to IRRI declaring it to
o After WWII, this was replaced by trusteeship system be on the same footing as the International Catholic Migration Commission.

4. Taiwan—a non-state territory which de jure is part of China The objective of the grant of immunity is to avoid the danger of partiality
and interference by the host country in their internal workings. The end
5. The Sovereign Order of Malta—the Italian Court of Cassation in 1935 result of the protective blanket that has been wrapped around IRRI is the
recognized its international personality efforts of employees to seek redress for violations of labor rights have been
repeatedly rebuffed by SC. For all practical purposes, they are denied the
6. The Holy See and Vatican City—recognized under Lateran Treaty; it full protection for labor guaranteed in the Constitution.
has no permanent population
CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW w/n NLRC could assume jurisdiction over a case of illegal dismissal against

An organization that is set up by treaty among 2 or more states which HELD:
have international personality ADB enjoys immunity from every form of legal process, except in cases
Constituent instruments of international organizations are multilateral arising out of or in connection with the exercise of its powers to borrow
treaties, to which the well-established rules of treaty interpretation money, to guarantee obligations, or to buy and sell or underwrite the sale
apply of securities.
Non-governmental organizations (NGO)—set up by private persons
Although international organizations have personality in international law,
their powers and privileges are by no means like those of states since
it is limited by the constitutional instrument that created them
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WHO v. AQUINO o There are 15 member states, 5 permanent and the others are
HELD: elected for 2 year terms in accordance with equitable

Diplomatic immunity is essentially a political question and courts should geographic representation
refuse to look beyond a determination by the executive branch of the o Distinguishes between
government, and where the plea of diplomatic immunity is recognized and a. Procedural matters
affirmed by the executive branch of the government, it is then the duty of b. All other matters—requires 9 affirmative votes, including
the courts to accept the claim of immunity upon appropriate suggestion by the concurring votes of the permanent members
the principal law officer of the government or other officer acting under o The Charter does not specify what matters are procedural,
this discretion. hence, decision on whether a matter is procedural or not
requires the concurrence of the permanent members
JEFFREY LIANG v. PEOPLE o Abstention = veto

This involved a criminal complaint against Liang, an ADB official, for grave 3. Economic and Social Council (ECOSOC)—has 54 members elected
oral defamation. Appeal was made to the political character of Liang as an for 3 year terms
agent of international organization.
4. Trusteeship Council—supervises non-self governing territories
HELD: o The Council suspended operations after Palau became
Immunity granted to officers and staff of ADB was not absolute; but limited independent on Oct. 1, 1994
to acts performed in an official capacity.
5. International Court of Justice (ICJ)—principal judicial organ of
the UN
The United Nations: Structure and Powers
6. Secretariat—comprises a Secretary General and such staff as the
Came into being on Oct. 24, 1945
Organization may require
A universal organization charged with peacekeeping responsibilities,
o Secretary General—elected to a 5 year term by General
development of friendly relations among nations, achievement of
Assembly upon the recommendation of the Security Council,
international cooperation in solving international problems of an
subject to veto power
economic, social, cultural and humanitarian character, and the
promotion of human rights and fundamental freedoms for all human Other Agencies:
beings without discrimination 1. United Nations Educational, Scientific and Cultural Organizations
UN is enjoined against intervening in matters which are essentially within
the domestic jurisdiction of any state
2. International Civil Aviation Organization (ICAO)
International Constitutional Supremacy Clause—in the hierarchy of 3. World Health Organization (WHO)
international organizations, the UN occupies a position of preeminence 4. Food and Agricultural Organization (FAO)
so if there is a conflict with other international agreement, obligations 5. World Bank
under the UN Charter shall prevail 6. International Monetary Fund (IMF)
Principal organs of UN:
1. General Assembly—it has plenary power in the sense that it may Regional Organizations—they are neither organs nor subsidiary organs of UN
discuss any question or any matters within the scope of the They are autonomous international organizations having an
Charter institutional affiliation with UN by concluding agreements with UN
o GA distinguishes between Created by international agreements for the purpose of dealing with
a. Important questions—decided by 2/3 majority of the regional problems in general or with specific matters be they
members voting and present economic, military or political
b. Other questions—decided by the majority
ASEAN—established on Aug. 8, 1967 in Bangkok, Thailand with the signing of
2. Security Council—has primary responsibility for the maintenance the Bangkok Declaration by the 5 original member countries: Indonesia, Malaysia,
of international peace and security Philippines, Singapore and Thailand

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Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995; Laos INDIVIDUALS
and Myanmar on July 23, 1997; Cambodia in 1999. Possess limited rights and obligations (deriving from customary
3 main objectives: international law) in international law
a. Promote economic, social and cultural development of the region Obligations of individuals are those arising from the regulation of
through cooperative programs armed conflicts
b. Safeguard the political and economic stability of the region against When individual rights are violated, however, individuals still have to
big power rivalry rely on the enforcement power of states; but some treaties have
c. Serve as a forum for the resolution of intra-regional differences provided for the right of individuals to petition international bodies
alleging that a contracting state has violated some of their human
Protocol II—first and only international agreement exclusively
regulating the conduct of parties in a non-international armed conflict
Requirements for Material Field of Application: CHAPTER 7 TERRITORY: LAND, AIR, OUTER SPACE
a. Armed dissidents must be under responsible command
Territory in International Law—an area over which a state has effective
b. They must exercise such control over a part of its territory as to
enable them to carry out sustained and converted military
Exact boundaries might be uncertain but there should be a definitive
operations and to implement this Protocol
core over which sovereignty is exercised
Insurgent groups which satisfy the material field of application may be
Acquisition of territory—acquisition of sovereignty over territory
regarded as ―para-statal entities possessing definite if limited form of
Includes land, maritime areas, airspace and outer space
international personality‖
a. They are recognized as having belligerent status against the de
jure government
b. They are seen as having treaty making capacity Modes of Acquisition of Sovereignty over Territory
Common Article 3—for armed conflict not of an international 1. Discovery and Occupation
character o Occupation—acquisition of terra nulliusterritory which prior to
Prohibited acts under Article 3: occupation belonged to no state or which may have been abandoned
a. Violence to life and person, in particular, murder of all kinds, by a prior occupant
mutilation, cruel treatment and torture o There is abandonment when occupant leave the territory with the
b. Taking of hostages intention of not returning
c. Outrages upon personal dignity, in particular, humiliating and o Discovery of terra nullius is not enough to establish sovereignty; it
degrading treatment must be accompanied by effective control
d. Passing of sentences and the carrying out of executions without
previous judgment pronounced WESTERN SAHARA CASE
NATIONAL LIBERATION MOVEMENTS Territories inhabited by tribes or peoples having a social and political
Organized groups fighting in behalf of a whole people for freedom from organization were not regarded as terra nullius.
colonial powers
Characteristics: The information furnished to the Court shows that at the time of
a. They can be based within the territory which they are seeking to colonization, Western Sahara was inhabited by peoples which, if
liberate or they might find a base in a friendly country nomadic, were socially and politically organized into tribes and under
chiefs competent to represent them.
b. Their goal is self-determination—to free themselves from colonial
domination, or a racist regime or foreign occupation
c. There is the ultimate goal of controlling a definite territory THE ISLAND OF PALMAS
d. They must have an organization capable of coming into contract FACTS:
with other international organizations Palmas (Miangas) is an island of little economic value or strategic location.
The island is located between Mindanao, Philippines and the northern most
island, known as Nanusa, of what was the former Netherlands East Indies.
In 1898, Spain ceded the Philippines to the

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United States in the Treaty of Paris (1898) and Palmas sat within the the US had failed to show documentation proving Spanish sovereignty on
boundaries of that cession to the U.S. In 1906, US discovered that the the island except those documents that specifically mentioned the
Netherlands also claimed sovereignty over the island, and the two parties island's discovery. Additionally, there was no evidence that Palmas was a
agreed to submit to binding arbitration by the Permanent Court of part of the judicial or administrative organization of the Spanish
Arbitration. government of the Philippines. However, the Netherlands showed that
the Dutch East India Company had negotiated treaties with the local
ISSUE: princes of the island since the 17th century and had exercised sovereignty,
w/n the Island of Palmas (Miangas), in its entirety, was a part of the including a requirement of Protestantism and the denial of other nationals
territory of the United States or the Netherlands on the island. The arbitrator pointed out that if Spain had actually
exercised authority, than there would have been conflicts between the
HELD: two countries but none are provided in the evidence.
The Arbitrator, Swiss lawyer Max Huber, ruled in favor of the Netherlands’
position and stated that the Netherlands held actual title to Palmas. For these In resolving island territorial disputes, the following 3 important rules
reasons, the Arbitrator decides that ―the Island of Palmas forms, in its must be followed:
entirety, a part of the Netherlands territory.‖ 1. Title based on contiguity has no standing in international law
Right by discovery—US argued that it held the island because it had 2. Title by discovery is only an inchoate title
received actual title through legitimate treaties from the original 3. If another sovereign begins to exercise continuous and actual
"discoverer" of the island, Spain. US argued that Spain acquired title to sovereignty and the discoverer does not contest this claim, the claim
Palmas when Spain discovered the island and the island was terra by the sovereign that exercises authority is greater than a title based
nullius. Spain's title to the island, because it was a part of the on mere discovery
Philippines, was then ceded to US in the Treaty of Paris after Spain's
defeat in the Spanish-American War. The arbitrator noted that no new EASTERN GREENLAND CASE
international law invalidated the legal transfer of territory via cession. HELD:
A claim to sovereignty based not upon some particular act or title such
However, the arbitrator noted that Spain could not legally grant what it as treaty or cession but merely upon continued display of authority,
did not hold and the Treaty of Paris could not grant to US Palmas if Spain involves 2 elements each of which must be shown to exist: (a) intention
had no actual title to it. The arbitrator concluded that Spain held an and will to act as sovereign, and (b) some actual exercise or display of
inchoate title when Spain ―discovered‖ Palmas. However, for a sovereign to maintain such authority.
its initial title via discovery, the arbitrator said that the discoverer had to
actually exercise authority, even if it were as simple an act as planting Another circumstance which must be taken into account is the extent to
a flag on the beach. In this case, Spain did not exercise authority which the sovereignty is also claimed by some other Power.
over the island after making an initial claim after discovery and so the United
States’ claim was based on relatively weak One of the peculiar features of the present case is that up to 1931, there
grounds. was no claim by any Power other than Denmark to the sovereignty of
Contiguity—US also argued that Palmas was US’ territory because the island
was closer to the Philippines than to Indonesia which was then held by 2. Prescription—requires effective control and the object is not terra
the Netherlands East Indies. The arbitrator said there was no positive nullius
international law which favored the US’ approach of terra firma, where the o The required length of effective control is longer than in occupation
nearest continent or island of considerable size gives title to the land in o May be negated by a demonstrated lack of acquiescence by the prior
dispute. The arbitrator held that mere proximity was not an adequate occupant
claim to land noted that if the international community followed the
proposed United States approach, it would lead to arbitrary results. 3. Cession—acquisition of territory through treaty
o A treaty of cession which is imposed by a conqueror is invalid
Continuous and peaceful display of sovereignty—the Netherlands' primary
contention was that it held actual title because the Netherlands had 4. Conquest and Subjugation
exercised authority on the island since 1677. The arbitrator noted that o Conquest—taking possession of a territory through armed force

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o It is necessary that the war had ended either by treaty or by CHAPTER 8
indication that all resistance had been abandoned TERRITORY: LAW OF THE SEA
o Now, conquest is proscribed by international law
o ―No territorial acquisition resulting from the use or threat of force Importance of the Sea

shall be recognized as legal‖ 1. Medium of communication

2. Contain vast natural resources
5. Accretion and Avulsion—sovereignty by operation of nature
o Accretion—gradual increase of territory by the action of nature Grotius – elaborated the doctrine of the open seas which considers the high
o Avulsion—sudden change resulting for instance from the action of a seas as res communis accessible to all
volcano o The doctrine recognized as permissible the delineation of a maritime
belt by littoral states as an indivisible part of its domain
Is Contiguity a Mode of Acquisition? o Maritime belt = territorial sea
It is impossible to show a rule of positive international law to the
effect that islands situated outside the territorial waters should belong Convention on the Law of the Sea of 1982 – prevailing law on maritime
to a state from the fact that its territory forms part of the terra firma domain
(Las Palmas Case)
Art. 2 of the 1982 Law of the Sea provides that
Intertemporal Law 1. Sovereignty of a coastal State extends, beyond its land territory and
Rules in effect at the time of the acquisition should be applied internal waters and, in case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as territorial sea
2. Sovereignty extends to the air space over the territorial sea as well as
AIRSPACE to its bed and subsoil
Each state has exclusive jurisdiction over the air space above its 3. Sovereignty over the territorial sea is exercised subject to this
territory Convention and to other rules of international law
Sovereignty over airspace extends only until where outer space begins
Consent for transit must be obtained from the subjacent nation Territorial Sea – belt of sea outwards from the baseline and up to 12 nautical
State Aircraft—aircraft used in military, customs and police services miles beyond
―No state aircraft of a contracting State shall fly over the territory of o The width of this territorial belt of water is the 12-mile rule
another State or land thereon without authorization by special o However, where the application of the 12-mile rule to neighboring
agreement or otherwise, and in accordance with the terms thereof.‖ (Art. 3[a] of littoral states would result in overlapping the rule is that the
dividing line is the median line equidistant from the opposite baselines
Chicago Convention on International Civil Aviation)
Aircraft must not only not be attacked unless there is reason to suspect that o Equidistance rule does not apply where historic title or other special
the aircraft is a real threat but also that a warning to land or circumstances require a different measurement
change course must be given before it is attacked (Lissitzyn)
Baselines – the low-water line along the coast as marked on large scale charts
Civilian aircraft should never be attacked
officially recognized by the coastal State

Two ways of drawing the Baseline:

Outer space, wherever that might be, and celestial bodies, are not 1. Normal baseline – one drawn following the low-water line along the
susceptible to appropriation by any state coast as marked on large scale charts officially recognized by the coastal
―The Moon and other celestial bodies shall be used by all State Parties to the Treaty
o this line follows the curvatures of the coast and therefore
exclusively for peaceful purposes.‖ (1967 Treaty on the Exploration and Use of
would normally not consist of straight lines
Outer Space)
2. Straight baseline – drawn connecting selected points on the coast
without appreciable departure from the general shape of the coast
o Most archipelagic states use straight baselines
o Art. 47 of the Convention on the Law of the Sea – the length
of such baseline shall not exceed 100 nautical miles, except

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that up to 3% of the total number of baselines enclosing any o However, the power of control given to the littoral state does not
archipelago may exceed that length up to a maximum length change the nature of the waters
of 125 nautical miles o Beyond the territorial sea, the waters are high sea and are not subject
to the sovereignty of the coastal state
Sovereignty over Territorial Sea – same as sovereignty over its land territory
o The sea and the strait are subject to the right of innocent passage by Exclusive Economic Zone or “Patrimonial Sea” – an area extending not more
other states than 200 nautical miles beyond the baseline
o Coastal state has rights over the economic sources of the sea, seabed
Right of Innocent Passage – passage that is not prejudicial to the peace, good and subsoil – but the right does not affect the right of navigation and
order or security of the coastal state overflight of other states
o Applies to ships, aircrafts, and submarines o The delimitation of the overlapping EEZ between adjacent states is
o Coastal states have the unilateral right to verify the innocent determined by agreement
character of passage, and it may take the necessary steps to prevent
passage that it determines to be not innocent Two Primary Obligations of Coastal States:
1. They must ensure through proper conservation and management
Internal Waters – all waters landwards from the baseline of the territory measures that the living sources of the EEZ are not subjected to over
o Coastal states may regulate access to its ports (Nicaragua case) exploitation
2. They must promote the objective of ―optimum utilization‖ of the living
Archipelagic Waters sources
o An archipelagic state may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious passage of The Continental (Archipelagic) Shelf – refers to the
foreign ships and aircraft through or over its archipelagic waters and a. Seabed and subsoil of the submarine areas adjacent to the coastal
the adjacent territorial sea state but outside the territorial sea, to a depth of 200 meters or, beyond
o The concept of the archipelagic waters is similar to the concept of that limit, to where the depth allows exploitation
internal waters under the Constitution of the Philippines, and b. Seabed and subsoil of areas adjacent to islands
removes straits connecting these waters with the economic zone or high
sea from the rights of foreign vessels to transit passage for The Deep Seabed: “Common Heritage of Mankind”
international navigation o These are areas of the seabed and ocean floor, and their subsoil, which
lie beyond any national jurisdiction
Bays – well-marked indentation whose penetration is in such proportion to the o These are the common heritage of mankind and may not be
width of its mouth as to contain land-locked waters and constitute more than a appropriated by any state or person
mere curvature of the coast
o Considered as internal waters of a coastal state Islands – naturally formed area of land, surrounded by water, which is above
o Indentation shall not be regarded as bay unless its area is as large as, water at high tide
or larger than, that of the semi-circle whose diameter is a line drawn o Artificial islands or installations are not ―islands‖
across the mouth of that indentation o Important due to the possibility of exploiting oil and gas resources
around them
Historic Bays – treated by the costal state as internal waters on the basis of o Islands can have their own territorial sea, exclusive economic zone and
historic rights acknowledge by other states continental shelf
o Rocks which cannot sustain human habitation or economic life shall
Contiguous Zone – an area of water not exceeding 24 nautical miles from the have no exclusive economic zone or continental shelf, but can have a
baseline territorial sea
o It extends 12 nautical miles from the edge of the territorial sea
o Coastal state exercises authority over that area to the extent The High Seas – all parts of the sea that are not included in the territorial sea
necessary to prevent infringement of its customs, fiscal, immigration or in the internal waters of a state
or sanitation authority over its territorial waters or territory and to o The flag state has exclusive jurisdiction over its ships on the high seas
punish such infringement to the extent not limited by agreement

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Six Freedoms which High Seas are subject to: o To have jurisdiction, occupation is not enough; control must also be
a. Navigation established (Las Palmas Case)
b. Overflight – belongs to both civilian and military aircraft
Boundary – separating the land areas of two states is determined by the acts of
c. Fishing – includes the duty to cooperate in taking measures to ensure the
the states expressing their consent to its location
conservation and management of the living resources of the high seas
d. Lay submarine cables and pipelines o When the boundary between 2 states is a navigable river its
e. Construct artificial islands and structures location is the middle of the channel of navigation
f. Scientific research o When boundary between 2 states is a non-navigable river or lake 
its location is the middle of the river or lake
Hot Pursuit
Effects Doctrine
o Art. 111 allows hot pursuit of a foreign vessel where there is good
reason to believe that the ship has violated laws or regulations of a o State also has jurisdiction over acts occurring outside its territory but
coastal state having effects within it
1. Subjective Territorial Principle – a state has jurisdiction to prosecute
o This must commence when the foreign vessel is within the internal
and punish for crime commenced within the state but completed or
waters, archipelagic waters, territorial waters, exclusive economic
consummated abroad
zone, continental shelf or the contiguous zone of the pursuing state
2. Objective Territorial Principle – state has jurisdiction to prosecute and
o Hot pursuit must stop as soon as the ship pursued enters the territorial
punish for crime commenced without the state but consummate within
waters of its own state or of a third state
o May be carried out only by warships or military aircraft, or any other its territory
ships or aircraft properly marked for that purpose
The Lotus Case (France v. Turkey)
Settlement of Disputes Facts:
o Peaceful settlement is compulsory There was a collision between French steamer Lotus, who was going to
Constantinople, and Turkish collier Boz-Kourt, where the Boz-Kourt sank. The
Lotus tried to save the people on the Turkish vessel, and did save 10, but 8
CHAPTER 9 Turkish nationals who were on board died. The officer on watch onboard the
JURISDICTION OF THE STATES Lotus, Ltn. Demons, and of the Boz-Kourt, Bey, were taken by Turkish police
for examination, and then arrested (pending trial) for criminal prosecution of
Jurisdiction – authority to affect legal interests manslaughter, without previous notice given to the French Consul-General.
o The scope of a state’s jurisdiction over a person, thing or event depends
on the interest of the state in affecting the subject in question During trial in Turkey, Demons (French national) submitted that Turkish courts
o Corresponding to the powers of the government, jurisdiction can be: had no jurisdiction, but his objection was overruled. Demons was then sentenced
1. Legislative jurisdiction – prescribe norms of conduct to 80 days imprisonment, and a fine of 22 pounds. The French government
2. Executive jurisdiction – enforce the norms prescribed protested this, and both countries agreed to bring the issue before this
3. Judicial jurisdiction – adjudicate International court at the Hague in Geneva.
o International law limits itself to criminal rather than civil jurisdiction
o Civil jurisdiction is subject for private international law or conflicts of Issue:
law w/n the rules of international law prevent Turkey from instituting criminal
o Jurisdiction may also be acquired by treaty proceedings against a French national under Turkish law. If yes, what pecuniary
o However, there are 5 popular principles on jurisdiction reparation is due to Demons?


o This is generally supported in customary law France claims that because the offense was aboard the Lotus, an extension of
o Fundamental source of jurisdiction is sovereignty over territory French territory, the sole right of prosecution of M. Demons is France's, and the
o It is necessary that boundaries be determined Convention of Lausanne of July 24th, 1923 does not allow Turkey to prosecute
M. Demons and jurisdiction remains with the French Courts. The court finds
that there is no rule of international law which prohibits Turkey from
prosecuting M. Demons. The Territorial Principle can be used to justify

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Turkey's prosecution of M. Demons because the ship is an extension of the It was determined that the Government of Canada should pay the United States
territory of Turkey. The court further finds that Territorial Principle can only US$78,000 for damage that the Trail Smelter had done to the State of
be overcome if there was customary international law that established the Washington from 1932 to October 1, 1937. This compensation was primarily for
exclusive jurisdiction of the State whose flag was flown. The court also finds damage done to land along the Columbia River valley in the United States. The
that current conventions deal with the policing of the high seas, and not common Tribunal decided that the United States had not displayed enough evidence for
law offenses. It is impossible to make a deduction from the conventions damage to livestock or businesses in Washington State from the operation of
in question because the conventions in question concern a single ship, making the Trail smelter.
deductions in regards to two different ships and two different jurisdictions is
impossible. Turkey claims that Article 6 of the Turkish Penal Code (Used to 2. If the smelter was found to have done damage, should it be made to
prosecute the two ship captains) is not contrary to principles of international refrain from doing so in the future or should it operate under any
law. Turkey is allowed to use their penal code, and France is allowed to use restrictions?
their own. The offense spans two jurisdictions, with the origin on board the
Lotus, and the effects on board the Boz-Kourt. If this offense didn't span two Trail Smelter should refrain from causing any future damage to the State of
jurisdictions, it would be a non-existent offense. To protect justice and the Washington from its sulfur dioxide emissions. To ensure this, it mandated that
interests of both states, the case should be understood to be a matter of the smelter maintain equipment to measure the wind velocity and direction,
concurrent jurisdiction. turbulence, atmospheric pressure, barometric pressure, and sulfur dioxide
concentrations at Trail. Readings from these instruments were to be used by
Jurisdiction over Foreign Vessels in Philippine Territory – we follow the the smelter to keep its sulfur dioxide emissions at or below levels determined
English Rule by the Tribunal. Moreover, copies of the readings were to be supplied to both
1. French Rule – crimes committed abroad a foreign merchant vessel governments monthly so that they could see the smelter's compliance. If the
should not be prosecuted in the courts of the country within whose smelter could not keep to the prescribed sulfur dioxide levels, then
territorial jurisdiction they were committed unless their commission compensation could be awarded to the United States as determined by the
affects the peace and security of the territory Tribunal and the Canadian Government.
2. English Rule – crimes perpetrated under such circumstances are in
general triable in the courts of the country within whose territory they Notes:
were committed In delivering their decision, the tribunal made an historic and often-cited
declaration: "Under the principles of international law, as well as of the law of
Trail Smelter Arbitration (US v. Canada) the United States, no State has the right to use or permit the use of its
Facts: territory in such a manner as to cause injury by fumes in or to the territory of
The Consolidated Mining and Smelting Company Limited of Canada operated a another or the properties or persons therein, when the case is of serious
zinc and lead smelter along the Columbia river at Trail, British Columbia about consequence and the injury is established by clear and convincing evidence..."
10 miles north of the international boundary with the State of Washington. In The case was landmark because it was the first to challenge historic principles
the period between 1925 and 1935, the U.S. Government objected to the of international law, which subordinated international environmental duty to
Canadian Government that sulfur dioxide emissions from the operation were nationalistic claims of sovereignty and free-market methods of unfettered
causing damage to the Columbia River valley in an 30 mile stretch from the industrial development. The Trail Smelter decision has since become the
international boundary to Kettle Falls, Washington. The two governments primary precedent for international environmental law, which protects the
resorted twice to legal arbitration, once from 1928 to 1931 and again from environment through a process known as the "web of treaty law." International
1935 to 1941, in an attempt to resolve the dispute. The main concern of the environmental law is based on individual governmental responses to discrete
United States was that the smelter's sulfur dioxide emissions were harming the international problems, such as the Trail Smelter issue. Legal decisions over
land and the trees of the Columbia River Valley which were used for logging, environmental disputes between nations are made in reference to a growing
farming, and cattle grazing; the three industries crucial to the area. The main body of treaties, conventions, and other indications of "state practices."
species affected were yellow pines, Douglas firs, larch, and cedar. Affected
harvests included alfalfa, wheat, and oats. The Trail Smelter decision has shaped the core principle underlying
international environmental law. According to this principle, a country which
Issues and Held: creates transboundary pollution or some other environmentally hazardous
1. Had damage been done to Washington State by the smelter since January effect is liable for the harm this causes, either directly or indirectly, to another
1, 1932? country. A much older precedent for this same principle is rooted both in
Roman Law and Common Law: sic utere ut alienum non laedas—use your own

叶清蓮 Public International Law P a g e | 16

property in such a manner as not to injure that of another. Prior to the twentieth States possesses the power inherent in sovereignty to require the return to this
century, this principle was not relevant to international law because actions country of a citizen, resident elsewhere, whenever the public interest requires
within a nation's borders rarely conflicted with the rights of another. it, and to penalize him in case of refusal….

In the present instance, the authority to require the absent citizen to return
NATIONALITY PRINCIPLE and testify necessarily implies the authority to give him notice of the
o This is generally supported in customary law requirement. As his attendance is needed in court, it is appropriate that the
o Every state has jurisdiction over its nationals even when those Congress should authorize the court to direct the notice to be given, and that it
nationals are outside the state should be in the customary form of a subpoena. ... The question of the validity
of the provision for actual service of the subpoena in a foreign country is one
Blackmer v. US that arises solely between the government of the United States and the citizen.
Facts: The mere giving of such a notice to the citizen in the foreign country of the
A US consular officer in Paris served Blackmer with a notice to return to requirement of his government that he shall return is in no sense an invasion of
Washington to testify for the US government. His testimony would help to any right of the foreign government and the citizen has no standing to invoke
ascertain the facts during criminal and civil investigations of the scandal. After any such supposed right.
Blackmer ignored this court order to return to the US, the trial judge found him
in contempt of court for failing to appear. Blackmer then petitioned the US Effective Nationality Link – used to determine which 2 states of which a
Supreme Court for relief from the lower court’s contempt order and related fine. person is a national will be recognized as having the right to give diplomatic
protection to the holder of dual nationality

Held: The Nottebohm Case (Liechtenstein v. Guatemala)

The petitioner, Harry M. Blackmer, a citizen of the United States resident in Facts:

Paris, France, was adjudged guilty of contempt of the Supreme Court of the Nottebohm was born in Germany, and was a German citizen, although he lived
District of Columbia for failure to respond to subpoenas served upon him in in Guatemala since 1903, and conducted a prosperous business there, but never
France and requiring him to appear as a witness on behalf of the United States became a citizen of Guatemala. In 1939, he applied to become a citizen of
at a criminal trial in that court. Liechtenstein. The application was approved even though a requirement was
that he be in residence there for at least 3 years, but there was an exception
Two subpoenas were issued, for appearances at different times, and there was and he became a citizen of Liechtenstein. When he tried to re-enter Guatemala
a separate proceeding with respect to each. The two cases were heard in 1943, he was refused entry (probably because of his original German
together, and a fine of $30,000 with costs was imposed in each case, to be citizenship and because of WWII). Liechtenstein offered Nottebohm protection
satisfied out of the property of the petitioner which had been seized by order against the government of Guatemala and sued Guatemala in the International
of the court. The decrees were affirmed by the Court of Justice.

While it appears that the petitioner removed his residence to France in the However, the government of Guatemala argued that Nottebohm did not gain
year 1924, it is undisputed that he was, and continued to be, a citizen of the Liechtenstein citizenship for the purposes of international law.
United States. He continued to owe allegiance to the United States. By virtue
of the obligations of citizenship, the United States retained its authority over Issue:
him, and he was bound by its laws made applicable to him in a foreign country. Whether the conferment of the Lichtenstein citizenship is not contrary to int'l
Thus, although resident abroad, the petitioner remained subject to the taxing law, and if Lichtenstein's claim on behalf of Nottebohm is admissible in court
power of the United States. For disobedience to its laws through conduct abroad,
he was subject to punishment in the courts of the United States. With respect Held:
to such an exercise of authority, there is no question of international law, but No. The court agreed with Guatemala and held that claims by Lichtenstein
solely of the purport of the municipal law which establishes the duties of the were inadmissible. Although the Court stated that it is the sovereign right of all
citizen in relation to his own government. While the legislation of the Congress, states to determine its own citizens and criteria for becoming one in municipal
unless the contrary intent appears, is construed to apply only within the law, such a process would have to be scrutinized on the international plain in
territorial jurisdiction of the United States, the question of its application, so questions of diplomatic protection. The Court upheld the principle of effective
far as citizens of the United States in foreign countries are concerned, is one of nationality, where the national must prove a meaningful connection to the
construction, not of legislative power. Nor can it be doubted that the United state in question.
叶清蓮 Public International Law P a g e | 17
This principle was previously applied only in cases of dual nationality to PROTECTIVE PRINCIPLE
determine which nationality should be used in a given case. However, Nottebohm o This is generally supported in customary law
had forfeited his German nationality and thus only had the nationality of o State may exercise jurisdiction over conduct outside its territory
Liechtenstein. that threatens its security as long as that conduct is generally
recognized as criminal by states in the international community
Corporations – state has jurisdiction over corporations organized under its o However, this is strictly construed to those offenses posing a direct,
laws specific threat to national security

Maritime vessels – state has jurisdiction over vessels flying its flag Examples of acts covered by Protective Principle:
o Same applies to aircraft and spacecraft a. Plots to overthrow the government
b. Forging its currency
Stateless Persons – persons who have no nationality c. Plot to break its immigration regulations
a. De jure stateless – persons who have lost their nationality, if they had
one, and have not acquired a new one
b. De factor stateless – persons who have a nationality but to whom UNIVERSALITY PRINCIPLE
protection is denied by their state when out of the State o This recognizes that certain activities, universally dangerous to states
and their subjects, require authority in all community members to
Mejoff v. Director of Prisons punish such acts wherever they may occur, even absent a link between
Facts: the state and the parties or the acts in question
Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army
Counter Intelligence Corps on March 18, 1948. He was turned over to the Phil Examples of acts covered by Universality Principle:
Commonwealth Government for appropriate disposition. His case was decided a. Piracy – any illegal act of violence or depredation committed for
on by the Board of Commissioners of Immigration who declared him as an private ends on the high seas or outside the territorial control of any
illegal alien. The Board ordered his immediate deportation. In the meantime, state
we was placed in prison awaiting the ship that will take him back home to Russia. b. Genocide – acts committed with intent to destroy, in whole or in part, a
Two Russian boats have been requested to bring him back to Russia but the national, ethical, racial or religious group
masters refused as they had no authority to do so. Two years passed and Mejoff c. Crimes against humanity – acts committed as part of a widespread or
is still under detention awaiting the ship that will take him home. systematic attack directed against any civilian population
1. Attack directed against any civilian population
This case is a petition for habeas corpus. However, the respondent held that 2. Extermination – internal infliction of conditions of life
the Mejoff should stay in temporary detention as it is a necessary step in the 3. Enslavement
process of exclusion or expulsion of undesirable aliens. It further states that is 4. Deportation or forcible transfer of population
has the right to do so for a reasonable length of time. 5. Torture
6. Forced pregnancy
Issue: 7. Persecution
w/n Mejoff should be released from prison awaiting his deportation. 8. Crime of Apartheid
9. Enforced disappearance of persons
Held: d. War crimes – grave breaches of the Geneva Convention of 12 August
The Supreme Court decided that Mejoff be released from custody but be placed 1949, namely, any of the following acts against persons or property
under reasonable surveillance of the immigration authorities to insure that he protected under the provisions of the relevant Geneva Convention
keep peace and be available when the Government is ready to deport him. In e. Aircraft piracy
the doctrine of incorporation, the Philippines in its constitution adops the f. Terrorism
generally accepted principles of international law as part of the law of Nations.
Also, the Philippines has joined the United Nations in its Resolution entitled Filartiga v. Pena-Irala (see previous notes)
―Universal Declaration of Human Rights‖ in proclaiming that life and liberty
and all other fundamental rights shall be applied to all human beings. The
contention that he remains a threat of to the security of the country is
unfounded as Japan and the US or the Phils are no longer at war.

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Attorney General of Israel v. Eichmann (Trial Court Decision) accused cannot compel a foreign sovereign State to give him protection against
Facts: its will. The accused was a wanted war criminal when he escaped to Argentina

Adolf Eichmann was a high ranking SS officer who played a central role in the by concealing his true identity. Only after he was kidnapped and brought to
planning and implementation of the persecution of Jews in Germany, Poland, Israel was his identity revealed. After negotiations between the two
Hungary and several other countries before and during World War II. At the end Governments, the Government of Argentina waved its demand for his return
of the war he escaped to Argentina where he lived and worked under an alias and declared that it viewed the incident as closed. The Government of Argentina
until May, 1960 when he was kidnapped by Israeli agents. Argentina complained thereby refused conclusively to grant the accused any sort of protection. The
to the Security Council about this clear violation of Argentine sovereignty. The accused has been brought to trial before the Court of a State which charges him
Security Council, while making it clear that it did not condone Eichmann's crimes, with grave offences against its laws. The accused has no immunity against this
declared that "acts such as that under consideration [the kidnapping of trial and must stand trial in accordance with the indictment.
Eichmann] which affect the sovereignty of a Member State and therefore cause
international friction, may, if repeated, endanger international peace and Eichmann v. Attorney General of Israel (Supreme Court Decision)
security." The Security Council requested the Government of Israel "to make Held:
appropriate reparation in accordance with the Charter of the United Nations One of the principles whereby States assume, in one degree or another, the
and the rules of international law." Argentina did not demand the return of power to try and punish a person for an offence he has committed is the principle
Eichmann, and in August, 1960. the Argentine and Israeli governments resolved of universality. Its meaning is, in essence, that that power is vested in every State
in a joint communique "to regard as closed the incident which arose out of the regardless of the fact that the offence was committed outside its territory by a
action taken by citizens of Israel, which infringed the fundamental rights of the person who did not belong to it, provided he is in its custody at the time he is
State of Argentina." Eichmann was then tried in Israel under Israel's Nazi brought to trial. This principle has wide support and is universally
Collaborators Law (a law enacted after Israel became a state in 1948). He was acknowledged with respect to the offence of piracy jure gentium. [One view]
found guilty and the conviction was subsequently upheld by the Supreme Court holds that it cannot be applied to any other offence, lest this entail excessive
of Israel. On May 31, 1962 Eichmann went to the gallows, the only person ever interference with the competence of the State in which the offence was
formally executed by the State of Israel. committed.

Held: A second school agrees to the extension of the principle to all manner of
It is an established rule of law that a person being tried for an offence against extraterritorial offences committed by foreign nationals. It is not more than an
the laws of a State may not oppose his trial by reason of the illegality of his auxiliary principle to be applied in circumstances in which no resort can be had
arrest or of the means whereby he was brought within the jurisdiction of that to the principle of territorial sovereignty or to the nationality principle, both of
State. The courts in England, the United States and Israel have constantly held which are universally agreed to. [Holders of this view] impose various restrictions
that the circumstances of the arrest and the mode of bringing the accused into on the applications of the principle of universal jurisdiction, which are designed
the territory of the State have no relevance to his trial, and they have to obviate opposition by those States that find themselves competent to punish
consistently refused in all instances to enter upon an examination of these the offender according to either of the other two principles. [One of these
circumstances. reservations is that the extradition of the offender should be offered to the State
where his offence was committed.].
Indeed, there is no escaping the conclusion that the question of the violation of
international law by the manner in which the accused was brought into the A third school holds that the rule of universal jurisdiction, which is valid in
territory of a country arises at the international level, namely, the relations cases of piracy, logically applies also to all such criminal acts or omissions
between the two countries concerned alone, and must find its solution at such which constitute offences under the law of nations (delicta juris gentium)
level. without any reservation whatever or, at most, subject to a reservation of the
kind Oust] mentioned. This view has been opposed in the past because of the
According to the existing rule of law there is no immunity for a fugitive difficulty in securing general agreement as to the offences to be included.
offender save in the one and only case where he has been extradited by the
asylum State to the requesting State for a specific offence, which is not the Notwithstanding the differences there is full justification for applying here the
offence for which he was being tried. The accused was not surrendered to principle of universal jurisdiction since the intentional character of the "crimes
Israel by Argentina, and the State of Israel is not bound by any agreement with against humanity" (in the wide meaning of the term) is, in this case, not in doubt,
Argentina to try the accused for any other specific offence, or not to try him and the unprecedented extent of their injurious and murderous effect is not open
for the offences being tried in the present case. The rights of asylum and to dispute at the present day. In other words, the basic reason for
immunity belong to the country of asylum and not to the offender, and the
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which international law recognizes the right of each State to exercise such Principles governing Extradition
jurisdiction in piracy offences applies with all the greater force. 1. No state is obliged to extradite unless there is a treaty
2. Differences in legal system can be an obstacle to interpretation of what
the crime is
PASSIVE PERSONALITY PRINCIPLE 3. Religious and political offenses are not extraditable
o This does not enjoy wide acceptance
o State may apply law, criminal law, to an act committed outside its US v. Alvarez-Machain
territory by a person not its national where the victim of the act was Facts:
its national Machain is a citizen and resident of Mexico. He was indicted by US DEA (Drug
o Not accepted for ordinary torts or crimes but is increasingly accepted Enforcement Administration) for participating in the kidnap and murder of a
as applied to terrorist and other organized attacks on a state’s DEA agent, by prolonging the victim's life so others could torture him further
nationals by reason of their nationality, or to assassination of a state’s (allegedly). Machain was forcibly kidnapped from Mexico and brought to Texas
diplomatic representatives or other officials for trial. Respondent moved to dismiss the indictment, claiming that his
abduction constituted outrageous government conduct, and that the district
US v. Fawaz Yunis court lacked jurisdiction to try him because he was abducted in violation of the
extradition treaty between US and Mexico. District court dismissed, and
CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction ordered that he be repatriated to Mexico, and court of appeals affirmed both.
1. Balancing Test – if the answer is yes to all the following questions, then Supreme Court granted certiorari.
the court will assume jurisdiction
a. Was there an actual or intended effect on a state’s foreign commerce? Issue:
b. Is the effect sufficiently large to present a cognizable injury to the Whether there is jurisdiction for a Mexican national, abducted to the US, when
plaintiffs, and, therefore, a violation of the anti-trust law? US and Mexico had an extradition treaty
c. Are the interests of the state sufficiently strong, vis-à-vis those of
other nations, to justify an assertion of extraordinary authority Held:
Yes. The Extradition Treaty says nothing about US and Mexico's obligations to
2. International Comity – state will refrain from exercising its jurisdiction is refrain from abducting people, or the consequences if this happens. The Treaty
it is unreasonable only says that neither party is bound to delivery upon the other its own
o Factors to consider in determining unreasonableness: nationals.
a. Link or connection of the activity to the territory of the regulating
state The Federal Tort Claims Act's exception to waiver of sovereign immunity for
b. Character of the activity to be regulated claims ―arising in a foreign country,‖ bars claims based on any injury suffered in a foreign
c. Existence of justified expectations that might be protected or hurt country, regardless of where the tortuous act or omission occurred and that
by the regulation Álvarez was not entitled to recover damages from Sosa under the
d. Likelihood of conflict with regulation by another state Alien Tort Statute. Thus, the Alien Tort Statute provides a jurisdictional basis,
3. Forum non conveniens – application is discretionary with the court but does not create an independent cause of action, save for a few exceptions
o If in the whole circumstances of the case it be discovered that there is envisioned by Congress at the time of enacting the Alien Tort Statute. These
real unfairness to one of the suitors in permitting the choice of a exceptions include and are limited to: rights of safe passage, rights of
forum which is not the natural or proper forum, either on the ground ambassadors and piracy.
of convenience of trial or the residence or domicile of parties or of its
being the locus contractus or locus solutionis Sec. of Justice v. Hon. Ralph Lantion
EXTRADITION – the surrender of an individual by the state within whose On June 18, 1999, the Department of Justice received from the Department of
territory he is found to the state under whose laws he is alleged to have Foreign Affairs of the United States requesting for the extradition of Mark
committed a crime or to have been convicted of a crime Jimenez for various crimes in violation of US laws. In compliance with the related
o This is a process that is governed by a treaty municipal law, specifically Presidential Decree No. 1069 ―Prescribing
o Legal right to demand extradition and the correlative duty to surrender a the Procedure for Extradition of Persons Who Have committed Crimes in a Foreign
fugitive exist only when created by treaty Country‖ and the established ―Extradition Treaty Between the Government of the
o Procedure for extradition is normally through diplomatic channels Philippines and the Government of the United States of

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America‖, the department proceeded with proceeded with the designation of a Bail in Extradition Cases
panel of attorneys to conduct a technical evaluation and assessment as o Bail may be granted to a possible extraditee only upon a clear and
provided for in the presidential decree and the treaty. The respondent requested convincing showing that
for a copy of the official extradition request as well as the documents 1. He will not be a flight risk or a danger to the community
and papers submitted therein. The petitioner denied the request as it alleges 2. There exist special, humanitarian and compelling circumstances
that such information is confidential in nature and that it is premature
to provide such document as the process is not a preliminary investigation
but a mere evaluation. Therefore, the constitutional rights of the accused are
not yet available.

1.Whether or not private respondent, Mark B. Jimenez, be granted access to
the official extradition request and documents with an opportunity to file a
comment on or opposition thereto

2.Whether or not private respondent’s entitlement to notice and hearing during the evaluation
stage of the proceedings constitute a breach of the legal duties of the Philippine
Government under the RP-US Extradition Treaty

The Supreme Court ruled that the private respondent be furnished a copy of
the extradition request and its supporting papers and to give him a reasonable
period of time within which to file his comment with supporting evidence. In
this case, there exists a clear conflict between the obligation of the Philippine
Government to comply with the provisions of the treaty and its equally
significant role of protection of its citizens of its right of due process. The
processes outlined in the treaty and in the presidential decree already pose an
impending threat to a prospective extraditee’s liberty as early as the evaluation stage. It
is not an imagined threat to his liberty, but a very imminent one. On the
other hand, granting due process to the extradition case causes delay in the
process. The rule of pacta sunt servanda, one of the oldest and most
fundamental maxims of international law, requires the parties to a treaty to
keep their agreement therein in good faith. The doctrine of
incorporation is applied whenever municipal tribunals are confronted with
situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of a local state. Efforts
should be done to harmonize them. In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal law
should be upheld by the municipal courts. The doctrine of incorporation decrees
that rules of international law are given equal standing, but are not superior to,
national legislative enactments.In this case, there is no conflict between
international law and municipal law. The United States and the Philippines
share a mutual concern about the suppression and punishment of crime in their
respective jurisdictions. At the same time, both States accord common due
process protection to their respective citizens. In fact, neither the Treaty nor
the Extradition Law precludes the rights of due process from a prospective

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