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SIMPLIFIED MCRAE MATERIALS

PUBLIC INTERNATIONAL LAW


- Sources of International Law / Treaties -

SOURCES OF INTERNATIONAL LAW


International Conventions
International Custom
General Principles of Law
Judicial Decisions and teachings of the most highly qualified publicists (subsidiary)

TREATIES
VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)

“A treaty means an international agreement concluded between states in written form and governed by International Law,
whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

Elements:
1. It is an international agreement
2. Between States
3. In writing
4. Governed by International Law

VCLT COMMENTARY (ILC YEAROOK 1966) – “agreement bet. states / others not precluded / oral form”

The term “treaty” is a generic term covering all forms of international agreements between states – regardless of the designation.
The term “treaty” as opposed to the term “agreement” has been favored. It has become accepted by a majority of the jurists. Other
designations are only a matter or nomenclature. But the fact that it is so defined as being an agreement between “states” is
not intended to deny other subjects of international law – such as international organizations or insurgent communities –
from concluding treaties. There was no mention of “intention” in the definition so as to preclude states from choosing between
municipal and international law insofar as they would apply to the provisions of the treaty. The use of the term “in writing” is
also in no way intended to deny legal force to oral arguments under IL; but insofar as the provisions of the VCLT are
concerned, their application shall be limited to written agreements.

VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)

“Every state possesses capacity to conclude treaties.”

But the treaty-making capacity is usually vested exclusively in the Federal Government, although there is no prohibition against
conferring the capacity to make treaties to component state. Whether the component state may conclude treaties in its own right or
as a mere organ of the federal state is determined by the Federal Constitution.

MAKING OF TREATIES
VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)

Article 7 Full powers


1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the
purpose of expressing the consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or

(b) it appears from the practice of the States concerned or from other circumstances that their intention was to
consider that person as representing the State for such purposes and to dispense with full powers.

2. In virtue of their functions and without having to produce full powers, the following are considered as representing their
State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating
to the conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the
State to which they are accredited;

(c) Representatives accredited by States to an international conference or to an international organization or one of its
organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

COMMENTARY – “full powers / safeguard / state discretion to dispense with it” A person is only considered as representing his
state for purposes of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the state to be

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bound only if he produces the appropriate instrument known as “full powers” or if it appears from the circumstances that the
intent of the contracting states was to dispense with them. It is up to the states to decide if they want to dispense w/ the
required “full powers.” But as a rule, the production of the full powers is the fundamental safeguard and proof that a
person is indeed authorized to do the particular act in question.

Summary:
General Rule: Full powers are required.
Exception:
 Heads of State / Heads of Government
 Heads of Ministries of Foreign Affairs
 Heads of Diplomatic Missions (only for the purpose of adopting the text)
 Representatives to International Conferences (only for the purpose of adopting the text)

VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)


“An act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 7 as
authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by the State.”

 The same rule applies for a person who concluded a treaty but in doing so acted beyond the scope of his powers. A State
may by implication, confirm the same if it invokes provisions of the challenged treaty or otherwise acts in such a way as
make it appear that the act of the representative is ratified.

DD: By analogy, this is comparable to the rules regarding unenforceable contracts in Contract Law as well as the principle of
estoppel.

VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISIONS)

Article 9
1. The adoption of the text of a treaty takes place by the consent of all the states participating in its drawing up, except as
provided in the next paragraph;
2. The adoption of the text of a treaty at an international conference takes place by vote of 2/3 of the states present and
voting, unless by the same majority they shall decide to adopt a different rule

Article 11 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 (1) signature, (2) exchange of instruments constituting a
treaty, (3) ratification, (4) acceptance, approval or accession, or (5) by any other means if so agreed.

Article 12 Consent to be bound by a treaty expressed by signature

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when:

(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or
(c) the intention of the State to give that effect to the signature appears from the full powers of its representative or
was expressed during the negotiation.

2. For the purposes of paragraph 1:

(a) the initialing of a text constitutes a signature of the treaty when it is established that thenegotiating States so agreed;
(b) the signature ad referendum of a treaty by a representative, if confirmed by his State,constitutes a full signature of
the treaty.

Article 13 Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty

The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that
exchange when:

(a) the instruments provide that their exchange shall have that effect; or

(b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect.

Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or approval

1. The consent of a State to be bound by a treaty is expressed by ratification when:

(a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were agreed that ratification should be required;

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(c) the representative of the State has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or
was expressed during the negotiation.

2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those
which apply to ratification.

COMMENTARY – “ratification as a general rule nowadays / acceptance, accession, approval” The general rule nowadays
considering the practice of states is that ratification is necessary to render the treaty binding. There have also been some less formal
types of international agreements such as “exchange of notes” w/c are usually intended to be binding by signature alone, but the
practice of states was still to subject the same to ratification. The term “acceptance” can have 2 meanings. If the treaty states that
it is signed subject to “acceptance” it generally means subject to ratification. It is generally known as a simplified form of
ratification. But if the treaty is made “open to acceptance” w/o prior signature, it generally connotes “accession.” The same
rules apply to “approval.”

Article 15 Consent to be bound by a treaty expressed by accession

The consent of a State to be bound by a treaty is expressed by accession when:

(a) the treaty provides that such consent may be expressed by that State my means of accession

(b) it is otherwise established that the negotiating states were agreed that such consent may be expressed by that state by
means of accession

(c) all parties have subsequently agreed that such consent may be expressed by that State by means of accession

 Accession – is the traditional method by w/c a state, in certain circumstances becomes party to a treaty to w/c it is not
signatory. There have been divergent opinions as to its possibility at all; but in modern practice, the right to accede is made
independent of accession – such as by making the entry into force of the treaty conditional upon the deposit of “instruments
of accession.”

Article 16 Exchange or deposit of instruments of ratification, acceptance, approval, or accession

Unless the treaty provides otherwise, instruments of ratification, acceptance, approval, or accession establish the consent of the
State to be bound by a treaty upon:

(a) their exchange between contracting states

(b) their deposit w/ the depositary

(c) their notification to the contracting states or to the depositary if so agreed

DD: Insofar as deposit of instrument is concerned, the consent of the state is manifested from the mere act of depositing the same;
that is the legal nexus – not the notification of the said deposit.

Article 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 w/c 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, acceptance, or approval,
until it shall have made its intention clear not tobecome party thereto

(b) it has expressed its consent to be bound by the treaty, pending entry into force, and provided that such entry into force is not
unduly delayed

PERTINENT CONSTITUTIONAL PROVISIONS

Article VII, Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with
the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board
shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decision
on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations
which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.

Article VII, Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds
of all the Members of the Senate.

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Article VIII, Section 4 (2). All cases involving the constitutionality of a treaty, international or executive agreement, or law,
which shall be heard by the Supreme Court en banc xxx shall be decided with the concurrence of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted thereon.

Article XVIII, Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast
by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

RESERVATIONS

Article 19 Formulation of reservations

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:

(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do not include the reservation in question,may be made; or

(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the objectand purpose of the
treaty.

Article 20 Acceptance of and objection to reservations


1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States
unless the treaty so provides.

2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application
of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the
treaty, a reservation requires acceptance by all the parties.

3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation
requires the acceptance of the competent organ of that organization.

4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:

(a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to
that other State if or when the treaty is in force for those States;

(b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between
the objecting and reserving States unless a contrary intention isdefinitely expressed by the objecting State;

(c) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least
one other contracting State has accepted the reservation.

(a) For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been
accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was
notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Article 21 Legal effects of reservations and of objections to reservations

1. A reservation established with regard to another party in accordance with articles 19, 20 and 23:

(a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation
relates to the extent of the reservation; and

(b) modifies those provisions to the same extent for that other party in its relations with the reserving State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving
State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.

Article 22 Withdrawal of reservations and of objections to reservations

1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which as
accepted the reservation is not required for its withdrawal.

2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time

3. Unless the treaty otherwise provides, or it is otherwise agreed:

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(a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been
received by that State;

(b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State
which formulated the reservation.

Article 23 Procedure regarding reservations

(a) A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and
communicated to the contracting States and other States entitled to become parties to the treaty.

(b) If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally
confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation
shall be considered as having been made on the date of its confirmation.

(c) An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself
require confirmation.

The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.

RESERVATIONS TO THE GENOCIDE CONVENTION – The Genocide Convention of 1948 does not contain a “reservation clause.”
The UN General Assembly now asks the ICJ for an advisory opinion regarding the implications of reservations made thereto. The
following conclusions were arrived at:

 In the absence of a provision on reservation, it does not automatically follow that reservations are absolutely
disallowed. In order to determine the effects of such reservations, or if they are at all allowed, due regard for the
character and purposes of the multilateral convention must be had. In this case, upon examination of the preparatory
stages o f the Convention, it can be gleaned that only limited reservations can be allowed – given the intendment of the
convention to outlaw genocide as an international crime, as well as to admit as many member states w/o defeating the
purpose of such. The Genocide Convention was obviously intended to be universal in scope.

 Absolute or general reservations, in this case cannot be made; it is inconsistent w/ the universal purpose of the convention.
But neither is it true that reservations must bear the assent of all contracting states. Such a rule would be impracticable and
inconsistent w/ the universal intent of the convention.

 In this case, a state-party making a reservation w/c was opposed to can still be deemed a party if the reservation is not wholly
inconsistent w/ the policy and purpose of the Genocide Convention. If, to the opinion of the objecting state, the
reservation is wholly inconsistent w/ the said policy, then it may treat the reserving party as not a party to the
convention. The treaty does not enter into force as between them. If the reservation was accepted, there is no problem.

 In the absence of ratification, the signatory state cannot yet be considered party to the convention; and if it makes a
reservation, it is deemed only provisional in nature. It has not legal effect as yet. Provisional objections thereto can also
be made. These merely signify the attitude of the reserving states – still subject to ratification. But from the moment of
ratification, the effects as stated earlier (first paragraph) come to play.

INTERPRETATION OF TREATIES

Article 31 General rule of interpretation

1. 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.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and
annexes:

a) any agreement relating to the treaty which was made between all the parties in connection withthe conclusion of 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.

3. There shall be taken into account, together with the context:


a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its
provisions;

b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its
interpretation;

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c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32 Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31:

a) leaves the meaning ambiguous or obscure; or

b) leads to a result which is manifestly absurd or unreasonable.

INTERPRETATION OF PEACE TREATIES (ICJ ADVISORY OPINION) – Under the Peace Treaties, Bulgaria, Hungary, and Romania
undertook to take measures to secure human rights and fundamental freedoms. Under the treaty, disputes are to be resolved by a
Commission composed of 1 representative each party, and a third elected by mutual agreement, and should the parties fail to
agree, may be appointed by the Secretary General of the UN upon request of either party. Considering that the parties have
refused to appoint their representatives, the US and UK are asking that the Sec. Gen. of the UN to make the appointment. This is
obviously not contemplated by the agreement. According to the natural and ordinary meaning of the terms thereof,
appointment of the national commissioners must precede appointment of the third commissioner, and only in case of
disagreement may the matter be submitted for the appointment by the Secretary General – upon request. The power of the
Sec. Gen. cannot be extended beyond the contemplation of the terms of the treaty.

True that refusal to comply w/ treaty obligations entails international responsibility; nonetheless, such does not suffice to
alter the provisions of a treaty. The court can only interpret, not extend or alter the same.
PREEMPTORY NORMS (JUS COGENS)

Article 53 Preemptory Norms of International Law

“A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law. For the purposes of
the present Convention, a preemptory 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.”

Examples of preemptory norms are unlawful use of force, commission of criminal acts, trading of slaves, piracy, genocide,
human rights violations, equality of states, and self-determination.

DD: Observe that Article 53 is couched in general terms and makes no enumeration.

WITHDRAWAL AND TERMINATION

Article 54 Termination of or withdrawal from a treaty under its provisions or by consent of the parties

The termination of a treaty or the withdrawal of a party may take place:

a) in conformity with the provisions of the treaty; or

b) at any time by consent of all the parties after consultation with the other contracting States

Article 56 Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or
withdrawal

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not
subject to denunciation or withdrawal unless:

a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under
paragraph 1.

Article 59 Termination or suspension of the operation of a treaty implied by conclusion of a later treaty

1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and:

a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that
treaty; or

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b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of
being applied at the same time.

2. 2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise
established that such was the intention of the parties.

Article 62 Fundamental change of circumstances (Rebus Sic Stantibus)

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a
treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the
treaty unless:

a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the
treaty; and

b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

a) if the treaty establishes a (territorial) boundary; or

b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any
other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or
withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

 This principle has in fact gained wide acceptance in IL albeit the cases falling under it are relatively few. But the
application of the doctrine of rebus sic stantibus should be confined to w/in narrow limits to regulate strictly the conditions
under w/c it may be invoked. The change must be substantial and so radical as to transform the obligations arising from
the treaties beyond that contemplated by the parties at the time of its inception.

FISHERIES JURISDICTION CASE – “rebus sic stantibus / fundamental change” Iceland and UK entered into an agreement called
the 1961 Exchange of Notes delineating fisheries jurisdiction around their maritime areas. Now Iceland denounces the agreement,
deems it terminated, and asserts exclusive jurisdiction over the 12 mile fishing area from its coast. It stresses its fundamental and
exceptional dependence upon fishing as a source of livelihood, and alleges that considering the advancement of technology and fishing
capacities, its vital interests and existence is threatened, therefore necessitating the application of the principle of rebus sic stantibus. It
also refuses to confer jurisdiction upon the ICJ – despite the compromissory clause in the agreement. The contention of Iceland is
untenable. The Court is not satisfied that the circumstances have so changed as to radically transform the obligations arising
from the Exchange of Notes. The change must be a fundamental one. The burdens arising from the agreement must have
increased to such an extent that they are now essentially different from that agreed upon. That burden of proof was not quite
discharged.

DANUBE DAM CASE (DOCTRINES) – “change was caused by the party invoking rebus sic stantibus” Impossibility of
performance cannot be invoked if the cause for the impossibility is the breach or fault of the party invoking it. The change must also be
unforeseen. Mere state of necessity cannot be invoked for terminating a treaty, but may only serve to exonerate a party from liability.
Violations of other treaty rules may serve as ground for taking certain measures and counter measures, but does not by itself suffice to
cause the termination of a treaty.

CERTAIN RULES IN CASE OF CONFLICT BETWEEN TREATY PROVISIONS AND DOMESTIC LAW

It generally depends on which court is deciding:

1. International Court – it will generally uphold treaty obligations

2. Domestic Court – it will generally uphold domestic laws

DD: This rule admits of exceptions.

 Treaty vs. Constitution – when the violation of the Constitution is manifest and concerns a rule of internal law of
fundamental importance, a state may deviate from the treaty obligation. However, following the dualist theory, this is a
matter purely of internal law – and the state may face international sanctions.

DD: Take note that under Article 27 of the Vienna Convention on the Law of Treaties, a state may not invoke the
provisions of internal law as justification for failure to perform obligations arising from a treaty.

 Treaty vs. Domestic Law

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o when the 2 instruments relate to the same subject matter, every attempt must be made to reconcile and harmonize
both
o if they are wholly inconsistent, that of a later date will prevail provided that the treaty provisions are self-executing
o these rules are applicable only in the domestic sphere; in IL, the treaty is binding regardless of the date

SEI FUJII v. CALIFORNIA (DOCTRINE) – “self-executing vs. non-self-executing treaties” The US Constitution distinguished form a
treaty that is self-executing from one that is not self-executing. The UN Charter Preamble required enabling legislation to affect private
persons, and the rights of private persons were not prescribed in detain the said Un Charter w/ respect to the land law.

- International Customary Law -


DEFINITION
It is evidenced by a general practice accepted as law. There must be consistency among states in its practice, and they must
consider compliance therewith as impressed w/ legal obligation.

Elements:
1. Duration
2. Uniformity (substantial uniformity), consistency of practice
3. Generality (but absolute generality is not needed)
4. Opinio Juris – there must be a genuine belief that a certain form of behavior is legally obligatory
– as distinguished from a mere act of courtesy, fairness, or morality

THE PAQUETE HABANA – “vessels / not prizes of war / comity grows into rule of IL” Upon examination of state practice in
various jurisdictions and cases since time immemorial, and up to the present, it can be concluded that it has become part of
International Customary Law that fishing vessels and cargo are exempt from being treated as prizes of war. There have
been opinions to the effect that the act of states in refraining form capturing vessels is merely out of comity, and not a sense of
legal obligation; however, after the lapse of a period of more than a hundred years of mutual and general state practice,
such comity or courtesy grew, by general assent of the civilized nations, into a settled rule of IL.

THE ASYLUM CASE – “Colombia vs. Peru” Haya dela Torre committed the crime of military rebellion in Peru. He sought asylum in
the Colombian Embassy therein. Colombia unilaterally qualified Haya as a political refugee and invokes the Havana &
Montevideo Conventions on Political Asylum – claiming that they have become part of International Customary Law – al least
among the Latin-American states. They submitted the matter to the ICJ. Colombia’s contention is untenable. The party that
relies upon such customs must prove its existence by constant and uniform usage among states. Such conventions have
not even been ratified by Peru. On the contrary, it even repudiated it. Apart from the signatory states thereto, no other
states practice the granting of asylum to such an extent that it becomes accepted as law through uniform usage. That
being the case, Colombia cannot unilaterally qualify Haya as a political refugee.

NORTH SEA CONTINENTAL SHELF CASE – “Denmark & Netherlands vs. Germany” Denmark, Germany, & the Netherlands made
line agreements delimiting the North Sea Continental Shelves. However, no further agreement could be reached as Germany
contends that the “doctrine of just and equitable share” must apply, while Denmark and the Netherlands argue that the “equidistant
principle” under the Geneva Convention should be applied – arguing that it is already a norm-creating rule. None of the
contentions were sustained. The fact that there are still many controversies as to the exact meaning of the equidistance
principle negates that it has acquired the status of custom. Second, under the Convention, the application of the
equidistance principle is only secondary, the primary rule being agreement as between the states.

Third, the Convention was open to reservation – which supports the idea that the said principle has not yet acquired the
status of custom; the Convention has also not been able to secure sufficient ratifications. There was no showing of a general
recognition of the principle as a rule of law binding upon states, even though a few states have decided to adopt the
measure. There must be a sense of legal obligation among the non-party states to comply w/ the rule in order for it to be elevated
to the status of international customary law.

Justice Sorensen Dissent


The conduct of states is the most potent source of IL. Treaties may be binding upon non-contracting parties once accepted as
part of customary international law. Geneva Convention results from the UN as part of codification of development of IL. It was
ratified by many states, representative of various regions. Controversies have arisen as to interpretation but not as to whether
its provisions embody generally applicable rules of IL. It is also impossible for a government to have conclusive evidence of
the intent of other parties (to treat it as legally binding or not). The faculty of making reservations has also no connection to
the issue of whether its provisions can acquire the status of custom.

FISHERIES JURISDICTION CASE – “UK vs. Iceland” The 1961 Exchange of Notes between UK and Iceland delimited certain fishery
limits or zones, and at the same time preferential rights w/ respect to certain zones. However give the advancement of modes of
fishing, Iceland, invoking its exceptional dependence on the fishing industry, repudiated the Exchange of Notes and unilaterally
imposed a 50 nautical mile exclusive zone – excluding the UK vessels. There are 2 principles that have acquired the status of
custom in this case: (1) the concept of fishery zones, where the state may claim exclusivity, and (2) preferential rights of
fishing in adjacent waters. UK in fact recognizes Iceland’s preferential rights over the subject domains. However, the concept of
preferential rights is incompatible w/ the exclusion of fishing activities of other states.

Just because a state is granted preferential rights over certain domains, it doesn’t mean that it can unilaterally exclude
other states therefrom. This infringes upon the principle under the Geneva Convention on the High Seas that “the exercise of

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the freedom of fishing shall be with reasonable regard to the interests of other states.” Iceland’s act is therefore illegal, and
both states are enjoined to negotiate the matter w/ due regard to the interests of both.

NUCLEAR TESTS CASE – “Australia & New Zealand vs. France” The President of France delivered unilateral statements to its
embassies in New Zealand and Australia, as well as to the UN to the effect that its atmospheric nuclear tests are completed (the
last of its kind) and to be abandoned for underground testing. But later on, this statement was repudiated and the President of
France stated that the test would continue. Australia and New Zealand object. Unilateral statements or declarations can have
the effect of creating legal obligations. The state must conduct itself consistent w/ its declarations. No prescribed form
(oral or in writing) is needed. What is important is that there is a clear intention. There must also be observance of good
faith. The international community is entitled to rely upon the credibility of such statements and to act on the basis
thereof. Acceptance of other states is not necessary. The same is true in this case. The statements made constitute an
undertaking or engagement of the state and must be respected.

Dissent of Judge Barwick


They were mere statements of policy and intention, not intending to undertake before the international community such
far-reaching implications.

GENERAL ASSEMBLY RESOLUTIONS

Resolutions and declarations of international organs can be recognized as a factor in the custom generating process and may
serve as evidence of a general practice.

THE SOUTHWEST AFRICA CASE – “Justice Tanaka Dissent” While it is true that in order to form international customary law,
uniform and repeated practice is needed, the same is true w/ statements, resolutions, and declarations, w/c if likewise made
uniformly as to manifest the collective will of the international community, could evidence the formation of international custom. In
this case, IL is replete w/ collective statements outlawing discrimination – from the UN Charter, the Universal Declaration of Human
Rights, Declaration on Elimination of All Forms of Discrimination, and many more. Thus, the norm of non-discrimination on the
basis of race has become a rule under international customary law. As a member of the UN, the respondent state must
comply therewith.

DECISIONS OF INTERNATIONAL ORGANIZATIONS

ADVISORY OPINION ON NAMIBIA – Up to what extent are the resolutions of the UN Security Council binding? After presenting a
hodge-podge, mishmash, plethora, (or whatever you want to call it) of legal opinions on the matter which elude my much-too-
human understanding, the Court (thank goodness) finally came up with an opinion. This is as much as I can understand.

 Art. 24 confers upon the Security Council (SC) the primary responsibility of maintaining international peace and security.
That is the general rule.

 Art. 25, on the other hand, states that the members of the UN must accept and carry out the decisions of the SC in
accordance with the Charter. This means that their decisions are binding.

 Chapter VI allows participation of the SC regarding settlement of disputes, allowing it investigatory and recommendatory
powers, among other functions

 Chapter VII empowers the SC to determine the existence of threats to the peace, make recommendations, implement
provisional and other necessary measures to ensure, peace, and so on

 Chapter VIII pertains to regional arrangements for the maintenance of international peace, and allows members who
undertake such arrangements to bring the matter before the SC. The SC in also empowered to utilize such arrangements
as would be necessary to ensure peaceful settlements

The discussions are diverse but the ruling is simple. The binding force of the resolutions of the SC are not confined to
those pertaining to Chapter VII – where threats to the peace are already involved. The resolutions are binding pursuant to
Art. 24 and they are binding upon the membership of the UN as a whole. Basis: if only Chapter VII decisions were meant
to be binding, then Art. 25 would have been placed in the said chapter. But instead, it appears right after Art. 24, the
general rule. Thus the binding force of the SC’s resolutions is general in nature.

 As a rule, the resolutions of the UN General Assembly are merely recommendatory, except the following w/c are deemed
binding among the members thereof:
o admission of new members
o budget approval
o apportionment of expenses

THE RULE ON PERSISTENT OBJECTOR

A state that has persistently objected to a rule of customary international law during the course of its emergence is not bound
by it. This doctrine is of limited application today. In case of new states, or those w/c have been admitted to the community of
nations, they are deemed bound by international customary law as a necessary consequence of statehood. They are not,
however, bound by pre-existing treaties.

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- General Principles of Law –

INTERNATIONAL STATUS OF SW AFRICA – “trusteeship” The ICJ was asked for an advisory opinion on the status of SW Africa
under the International Trusteeship System and what are the obligations of South Africa as the Mandatory. The answer is found
in the general principles of law as borrowed from traditional municipal law – under the principle of “trust.” Almost all legal
systems possess a system of trust, where for example some minor or lunatic’s property (or even person) may be
entrusted to a responsible person or trustee. By analogy, it applies to trusteeship under international law. That being the
case, South Africa, as trustee state, exercises but limited control based on confidence and conscience and cannot carry out the
trust or mission for its own benefit. Any attempt to absorb the property entrusted to them shall be illegal. Finding and applying the
general principles of law is all about locating those rules and institutions of private law as indications of policy – such as
the principle of trust, among many others.

DIVERSION OF WATERS FROM THE RIVER MEUSE – “equity” The principles of equity have long been applied by international
tribunals. Although the ICJ is not expressly authorized by its Statute to apply equity, it is allowed to apply general principles of law
recognized by civilized nations – w/c includes equity. The power however to apply the principles of equity in no way restricts
the power of the ICJ to decide cases ex aquo et bono should the parties so agree that the controversy is to be decided
base on the said principle. The courts should not shirk from applying such a principle of obvious fairness.

DISTINCTION BETWEEN EQUITY AND EX AEQUO ET BONO

1. Equity – when the law cannot cover every possible situation for the purpose of deciding a controversy, the case
may be decided based on equitable principles

2. Ex Aequo Et Bono – it pertains to the power of the ICJ to decide a case equitably outside the rules of law, at the
instance of the parties to the case

Other General Principles of Law: principles of liability, responsibility, reparation, unjust enrichment, property, eminent
domain, indemnity, denial of justice, right of passage, prescription, error, presumptions, administrative law, procedure,
humanity, good faith, pacta sunt servanda, estoppel, and human rights

APPLICATION IF INTERNATIONAL LAW BY DOMESTIC COURTS

FILARTIGA v. PENA-IRALA – “torture” Dolly Filatriga’s brother was tortured to death by Pena in Paraguay due to her father’s
political activism. She was even shown the corpse. Pena was prosecuted therein but to no avail. Dolly thereafter went to the US
and applied for political asylum. She found out that Pena has arrived at the US and has overstayed – thus she commenced an
action before the NY Court against Pena based on the Alien Tort Statute, as well as the various International Agreements and
Conventions on Human Rights, such as the Universal Declaration. The trial judge dismissed the case for lack of jurisdiction.

A state’s treatment of its citizens is now a matter of international concern. Torture has become internationally outlawed, and the
abhorrence thereto has come to acquire the status of international customary law. It is said that the Universal Declaration of
Human Rights no longer fits into the category of “treaty” but has been elevated to the status of customary law. No government has
ever asserted a right to torture its people (or aliens). The law of nations is clear and unambiguous in condemning torture.

A state has an interest in the orderly resolution of disputes among people w/in its borders – even if the act complained of
took place outside. So long as personal jurisdiction can be acquired, the courts may adjudicate such transitory tort
claims. In principle, it is an expression of comity by giving effect to the laws of the state where the act was committed. The law of
nations forms an integral part of common law, and such is recognized by the (US) Constitution. The contention that the law
of nations forms part of state law only to the extent that Congress has enacted them is untenable. Neither can Pena hide behind
the act of state doctrine. The Alien Tort Statute merely opens the door for the adjudication by aliens of rights already recognized
under the law of nations. For purposes of civil liability, the torturer has become like the pirate or slave trader – hostis
humani generis – an enemy of all mankind.
MORTENSEN v. PETERS – “within cannon shot” The Appellant is master of a foreign vessel w/c proceeded to employ “otter trawl”
fishing methods at a point within the Moray Firth (a long narrow inlet of sea) but outside 3 miles of the British Coast. He was
prosecuted under the Herring Fishery Act (local law) prohibiting such methods. He alleges that the said area is beyond the
territorial sovereignty of Britain. The area is intra fauces terrae although outside of the 3 mile territorial limit. Several notable
commentators as well as past decisions recognized the principle, where such bays and creeks capable of bounds or
within the view of such shores fall under the territory of the state. “The sovereign is the proprietor of the narrow seas
within cannon shot of the land, and the firths, gulfs, and bay around the Kingdom.” It is, for every purpose, within
territorial sovereignty.

The law was also intended to be of general application – even to foreigners. Otherwise, the purpose will be defeated. The North
Sea Convention establishing fishing limits is inapplicable; the issue pertains to the “methods” of fishing.

IN RE: OTTAWA & ROCKCLIFFE PARK – “tax & jurisdiction exemption” The municipal corporations of Ottawa and Rockcliffe Park
sought to levy taxes upon properties owned by the legations of the US, Brazil, and France, as well as the offices and residences
occupied by the King and High Commissioner of the UK and Australia. Taxable? Of course not! The Crown Properties are
expressly exempt under the Assessments Act. Even so, international law is incorporated into municipal law – and that
includes the principle that foreign ministers (and most especially the King!) are not subject to the laws of the state where
they have been sent. There is an implied consent that he possesses all the privileges which his principal (the State or the

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Sovereign) possesses. This is essential to the dignity of his sovereign and the duties he is to perform. Thus, he is exempt
fro the jurisdiction of the courts; and from this it only follows that he is exempt from tax. Since he cannot be sued, it
becomes a legal impossibility for the municipal corporation to exact the taxes from him.

TRENDTEX TRADING v. CENTRAL BANK OF NIGERIA – “incorporation vs. transformation” The doctrine of incorporation
states that the rules of IL and incorporated into English (municipal) law automatically, unless they are in direct conflict w/ an act of
the legislature. As the rules of IL change, so does the local law adopt. The doctrine of transformation on the other hand, states
that the rules of IL are not to be considered part of English (municipal) law unless adopted by our laws through the legislature or
judicial decisions, or through long established custom. It must receive the assent of the nation sought to be bound by it, otherwise,
this would usurp the powers of legislature.

Insofar as England is concerned, the incorporation doctrine applies. The courts have applied IL as it changes w/o waiting
for aid from any Act of Parliament. Examples are the international laws on slavery. The same is the trend in many other
countries. IL knows no stare decisis. If the court is not satisfied that a ruling 30 years ago based on IL still prevails, it will
overturn it in accordance w/ the new rules as they evolve.

COMMENT ON THE INCORPORATION CLAUSE


When the Constitution, under Article 2 Section 2, provides that “the state adopts the generally accepted principles of international
law as part of the law of the land,” it does not refer to treaties, but rather to international customary law and other general
principles of law.

DD: According to the Llamzon Article, the principle of pacta sunt servanda is deemed adopted by virtue of the incorporation
clause – thus treaty obligations are binding. But as pointed out, it is pacta sunt servanda as a general international custom that is
automatically incorporated, not the provisions of a treaty directly, albeit the fact that the effect is the same.

THEORIES ON THE RELATION BETWEEN INTERNATIONAL AND MUNICIPAL LAW


1. Monism – IL and municipal law belong to only 1 system w/ IL as superior to domestic law; the basic norm of the national legal
system is located in the norms of IL

2. Inverted Monism – municipal law is superior to IL, and denies the term “law” to international law

3. Dualism – IL is distinct from domestic law; a sovereign act under municipal law may result to a state exceeding its
competence in international law, nonetheless, the act is not void under municipal law

4. Harmonization – the 2 legal systems must be harmonized and given effect

- Personality in International Law –

ELEMENTS OF A STATE UNDER 1933 MONTEVIDEO CONVENTION


 Permanent population – sufficient in numbers to maintain and perpetuate itself
 Defined territory
 Government – expressive of the sovereign will and exercising supremacy within its domain
 Assertion of the right to enter into diplomatic relations
 It must have attained a certain degree of civilization to enable it to observe the principles of law w/ respect to the outside world
CASE ON THE RIGHTS OF US NATIONAL IN MOROCCO – “recognized as state / no privileged positions” Morocco, even despite
its status under the Protectorate, has retained its international personality as a state under IL. Thus, it is entitled to economic liberty
and equality under the Act of Algeciras conferred upon states. Conferment of privileged economic positions to France or the US in
Morocco would be inconsistent w/ this guaranteed equality.

ADMISSION TO THE LEAGUE OF LIECHTENSTEIN – “a state nonetheless” Liechtenstein was denied admission to the League of
Nations because of several factors – such as the lack of an army, and the fact that it has to contract w/ various states so that it could
provide such services as Customs, communications, and even diplomatic representation. Thus, it cannot discharge the duties
imposed upon member states because of its geography and many other factors; but nonetheless, this does not detract from
its status as a state in IL – as recognized by many other states.

RECOGNITION

ON RECOGNITION OF STATES / GOVERNMENTS

The recognition of States does not necessarily presuppose the recognition of governments. The practice varies
depending on the policy of the state extending recognition. This is, in fact largely discretionary upon the sovereign states
extending such recognition. Nonetheless, in IL, there are certain guiding standards for granting recognition, such as

Conditions for recognition as a de facto government:

 The new regime has effective control over most of the state’s territory
 That this control seems likely to continue

Conditions for recognition as a de jure government:

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 It has effective control over most of the state’s territory
 This control must be firmly established

It is largely a question of fact depending upon the judgment of the state extending recognition whether the above mentioned
qualifications exist. That is why recognition can be said to be subjective.

In fact, the power to recognize a de facto government pertains to the state extending it; this right was not yielded to the UN upon
signing the UN Charter. It cannot be imposed upon a state (Statement of US Representative to the UN regarding recognition of
Israel).

When the United States recognizes a government and exchanges diplomatic representatives with it, it in no way implies that the
US approves of the said state’s form, ideology, or policy (US Senate Resolution dated Sept. 25, 1969). The same applies to
Canada and other states.

Canadian Practice in Recognizing States – certain factors must be considered:

 Effective Control – with reasonable prospect for permanency w/in its area
 Political Considerations – this is a policy decision
 Timing of Recognition – the new government must attain a likelihood of permanence
 External Control – to recognize a government is to tacitly recognize its freedom from external control

British Practice in Recognition

 Britain no longer recognizes governments, only states


 Where an unconstitutional governmental change takes place, the British government will only determine the extent of the
dealings w/ the said government w/o necessarily extending recognition

THE TINOCO ARBITRATION – “de facto government / law of nullities” The Costa Rican government was overthrown by Tinoco
through extra-constitutional means. His government lasted for 2 years peacefully but was not recognized by many states, until he
retired and left the country. Afterwards, the previous constitution and government were reinstated, and the legislature enacted the
Law of Nullities – nullifying all contracts between the executive and private persons during Tinoco’s regime. The Tinoco
government, during its time, granted a concession to Central Costa Rica Petroleum (British) for the exploitation of oil reserves,
as well as secured a loan from Royal Bank (British) through Banco Internacional.

Britain now seeks to enforce the said contracts, arguing that the Tinoco government was the only de facto government of that time
in Costa Rica, and that the succeeding government must honor the obligations Tinoco’s government entered into. Costa Rica
alleges that the British government is estopped as it did not recognize the Tinoco government during its tenure, and that the
contracts were illegal for being contrary to the constitution.

As a rule, internal changes in government or policy have no bearing in IL. Under the rule on “continuity of states” a state is
bound by the agreements entered into by its previous governments that have ceased to exist. It is not true that the Tinoco
government cannot attain de facto status simply because it was instituted contrary to the former constitution.

Nonetheless, despite all the foregoing, with regard to the claims of the bank, it was shown that the transactions it entered into were
full of irregularities. The loans extended were in fact representation of Tinoco w/c were actually to be his expenses for his flight.
The new government cannot be held responsible for the money paid to him for such a purpose. It is more properly claimable
against Tinoco’s estate. About the concession, the same was granted by a body (Chamber of Deputies) w/o power to grant such –
even under the Tinoco government’s laws. That being the case, no claim thereto can be made. Therefore, the Law of Nullities
will work no injury to Great Britain.

SELF DETERMINATION

ELEMENTS OF THE RIGHT TO SELF-DETERMINATION


 The right to freely determine their political status
 Right to freely pursue their economic, social, and cultural development

WESTERN SAHARA CASE – “self-determination” Western Sahara was colonized by Spain in 1884. The UN Gen. Assembly
declared that the decolonization of Western Sahara should occur, to w/c Spain acceded. But this time. Morocco and Mauritius laid
similar claims upon its territory based on historic right. The court explained the notion of self-determination (but the ruling was not
categorically provided). The very purpose of the UN is to develop friendly relations among nations based on equality and
self-determination – w/c is basically the right of the people to freely determine their political status and pursue their
economic and cultural development. But this requires the free and genuine expression of the will of the people – through
the democratic process of modern adult suffrage. There may be certain exceptions where consulting the inhabitants is
dispensed with, such as if their population cannot yet be considered as “people” as to entitle them to self-determination, or perhaps
in other special circumstances.

Separate Opinion of Judge Dillard


The many pronouncements of the General Assembly and this court have in fact created a new norm of IL

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– the decolonization of those non-self-governing territories under the aegis of the UN. The existence of such “legal ties” as
herein claimed (historic right in this case), only have a tangential effect to the ultimate choices available to the people.

The very purpose of “the sacred trust” is self-determination – to lead to the eventual independence of the peoples concerned,
which may be either through the emergence of a sovereign state or its integration or association with an independent state.

NON-STATE ENTITIES

AUSTRALIA v. NEW SOUTH WALES – “not a foreign state” The Commonwealth of Australia sues one of its states, New South
Wales, for torts resulting from a collision of vessels. Wales alleges that it is immune from suit, that it is a “sovereign state” to be
placed in the same category as foreign states. This analogy cannot be sustained. An Australian state is necessarily part of
the territory of the Commonwealth. It is not a foreign country. The people of New South Wales are the very same people of
the Commonwealth. They are but one people w/ a common citizenship. Thus, state immunity, and all the other privileges
appurtenant thereto cannot be granted to New South Wales under the pretext that it is a sovereign state. It is an appeal to
an impossible standard.

CULTURAL AGREEMENT BETWEE QUEBEC & FRANCE – “province entering into cultural agreement” Canada and France
entered into a Cultural Agreement – where they mutually undertook to take measures for the integration and enrichment of their
cultures through the exchange of professors, studies, scientists and scientific knowledge, cultivation and dissemination of the
French language, support for cultural activities, among others. Within the framework of the Agreement, ententes may be entered
into between France and the provinces of Canada – in this case Quebec.

It must be noted that Quebec is but a province of the State of Canada. Generally, provinces have no status in international law and
are not recognized as states. Perhaps what we can cull from this is that there is nothing to preclude a sovereign state from
empowering certain provinces or subdivisions thereof to enter into foreign agreements despite their general lack of
international personality.

INTERNATIONAL STATUS OF SW AFRICA – “mandate system / sacred trust” Germany renounced all rights to SW Africa through
the Treaty of Versailles. Certain other territories as a consequence of the war have ceased to be under the sovereignty of their
previous conquerors, but are still incapable of self-government. By virtue of the Mandates System created under the Covenant of
the League of Nations. In this case a “tutelage” was established for these peoples, this tutelage entrusted to certain advanced
nations as “Mandatories” in behalf of the League. The Union of South Africa became the Mandatory for SW Africa exercising full
powers of administration, subject to the supervision of the Council of the League. The creation of this new international
institution did not involve any cession of territory or transfer of sovereignty. Its object is to promote the well-being of the
inhabitants pursuant to the “sacred trust” of civilization. The question therefore is that did the Mandate System cease
upon the end of the League of Nations?

True that the Mandate System ceased to exist – but not the obligation arising from the “sacred trust of civilization” w/c
does not depend upon the existence of the League. The obligations to ensure the utmost well-being and social progress of the
inhabitants do not cease simply because the supervisory organ of the League ceased to exist.

RESOLUTION 2145 (TERMINATION OF SOUTH AFRIA’S MANDATE OVER SW AFRICA) – By virtue of this resolution, the UN
General Assemble declared that the Mandate conferred upon Britain as administered by South Africa over SW Africa has been
terminated. SW Africa now comes under the direct responsibility of the UN. Nonetheless, SW Africa shall maintain its international
status as such until it achieves independence.

LEGAL CONSEQUENCES OF CONTINUED PRESENCE OF SO. AFRICA IN NAMIBIA (SW AFRICA) – The GA adopted Resolution
2145 terminating the mandate of SW Africa; the Security Council thereafter adopted Resolution No. 276 declaring the continued
presence of South Africa in SW Africa (Namibia) illegal and called upon states to act accordingly. The entry into force of the
Charter of the UN created a contractual relationship between the Mandatory States on the one hand and the member
states on the other. Therefore, it only follows that when a party disowns or fails to perform the obligations arising
therefrom, then such party cannot claim to retain such rights proceeding from the agreement. In this case, South Africa was
found to have administered its mandate contrary to the international agreements imposing its obligations as such, as well as
against the UN Declaration of Human Rights. It has failed to ensure the moral and material well-being of the inhabitants of
Namibia. It has, in fact, disavowed the Mandate. Such violations are a ground for termination.

A Mandate is an international agreement having the character of a treaty or convention. Under the general principles of
international law on treaties, material breach is a ground for termination. The Vienna Convention on the Law on Treaties may be
applied. Even assuming that the League of Nations (and its successor, the UN) had no power to terminate the Mandate,
still the general principles of law must apply – in this case, termination due to material breach. This principle is inherent
in any agreement despite its silence. The GA, in fact has the right to issue resolutions w/c make determinations or have
operative design – as in this case. The fact that it is vested w/ recommendatory powers cannot detract from this authority.

CASE OF BELLIGERENT COMMUNITIES & INSURGENT GROUPS – Even belligerent groups and insurgents assume certain
obligations under international law w/c among others, includes such obligations as:

 Obligation to distinguish between combatants and non-combatants


 Prohibition against attacks against civilians
 Prohibition against superfluous injury or inflicting unnecessary suffering
 Obligation to refrain from treachery

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 Obligations to respect medical and religious personnel
 Prohibition against use of certain forms of weapons

INTERNATIONAL ORGANIZATIONS
UNITED NATIONS

Purposes of the United Nations:


 Maintain international peace and security
 Develop friendly relations among nations
 Achieve international cooperation
 Be a center for harmonizing the actions of nations in the attainment of these common ends

Governing Principles:
 Sovereign equality
 Fulfillment in good faith of the obligations assumed under the Charter
 Refrain from use of threat or force
 Assistance to the UN in any action taken in accordance w/ the Charter
 Ensure that even non-member states act in accordance w/ the Principles as far as may be necessary to ensure
international peace and security
 Non-intervention in purely domestic matters, nor shall members states be required to submit matters to settlement – w/o
prejudice to enforcement measures under Chapter VII (Security Council)

Principal Organs
 General Assembly
 Security Council
 Economic & Social Council
 Trusteeship Council
 International Court of Justice
 Secretariat

Note: The UN shall enjoy in the territory of its members such legal capacity as may be necessary for the exercise of its
functions or the fulfillment of its purposes

REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE UN – “international person” Can the UN, as an international
person, bring a claim against the responsible government for the purpose of obtaining reparations due to damages cause to the
UN and to the victim or persons entitled through him? Affirmative! Generally the capacity to bring international claims through the
customary methods is reserved to states. However, the UN, due to the nature of its functions and purposes is likewise entitled to
bring an action as an international person. The member states, by adopting the Charter, intended to constitute the UN as not
only a center for harmonization, but rather as a political body w/ very important political tasks – thus clothing the UN w/
international personality. In fact, given the nature of its functions, the only way by w/c the UN can operate in the
international plane is for it to possess international personality.

However, it is not correct to say that the UN possesses the same rights as a state. Neither is it correct to say that the UN is a
“super-state.” The powers and duties of such an entity are limited to only those consistent w/ its purposes and functions. That
being said, the members states have endowed the UN w/ the capacity to bring international claims whenever necessitated
by the discharge of its functions.

EUROPEAN COMMUNITY TREATY – “European Union / most extensive legal personality” Under the said treaty, the European
Community (now Union) shall possess the most extensive legal capacity accorded to legal persons under the respective municipal laws
of the member states. It may transfer or acquire property, and may sue and be sued in its own name.

INDIVIDUALS & CORPORATIONS

LAUTERPACHT (INTERNATIONAL BILL OF THE RIGHTS OF MAN) – “objects of international law” Initial efforts were made to
incorporate the rights of man into the very fundamental laws of the states – such that the protection of man formed the very reason
for the state’s existence. This principle would suffer set-backs but would re-emerge after the Second World War, where human
beings will be viewed as the “objects” of international law. The purpose of conventions and agreements was to make the
world a safe place for man. However, the fundamental claims of human personality to equality, liberty, and freedom
against the arbitrary will of the state remained outside the scope of IL.

This is the orthodox view – that man was but the passive “object” of IL. The views have, in fact progressed since then as
to view human beings as, to a certain extent, “subjects” of international law. This could mean that persons can assume
certain rights and obligations under IL; this will be reflected in later trends.

EXTRACT FROM THE NUREMBERG TRIAL – “individual responsibility” Can an officer, acting pursuant to the orders of Hitler, be
held liable for acts committed by him in violation of international laws? The answer is yes. Individuals can now be held
responsible for violations of international law; they can no longer be protected by the doctrine of state sovereignty – w/c
states that IL is only concerned w/ the actions of states and not individuals, and that those who carry out acts of state are not

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personally responsible. Individuals now have international duties w/c transcend national obligations of obedience. The fact
that a person acted merely in obedience to an order of his government will not shield him from liability – but it may
mitigate punishment. The true test is not the existence of the order but whether the moral choice was in fact possible. Neither can
states protect their individuals accused if they exceeded their competence by allowing or ordering the individual to commit the
crime.

Recent developments:

Ad Hoc International Criminal Tribunals – they cover only crimes committed after entry into force; no death penalty can be
imposed, neither can there be trial in absentia.

THE STATUTE OF ROME CREATING THE INTERNATIONAL CRIMINAL COURT – Here are some salient points on the ICC from the
Ebdalin Article.
 Unlike in the ICJ where only states may be parties, the ICC has jurisdiction to try individuals (natural persons) for the
most serious crimes of international concern; no death penalty can be imposed

 Such crimes covered by the jurisdiction of the ICC include (1) genocide, or the systematic destruction, through various
means, of a particular race or culture, (2) crimes against humanity, such as widespread and systematic attack upon
civilian populations w/ full knowledge thereof, (3) war crimes, whenever they are committed as part of a plan or policy for
large-scale commission, and (4) aggression. Aggression has not yet been defined, and the jurisdiction of the court over
such a crime will only begin when it is finally defined

 It has jurisdiction only after the entry into force of the Statute of Rome. The court’s jurisdiction is triggered by the referral
to the Prosecutor of (1) a state party, or (2) the Security Council, or (3) motu propio investigation by the Prosecutor.

 The general principles of criminal law are applied – such as mens rea, nulla crimen, and prospectivity. In deciding cases,
the sources of law that may be used by the court include (1) the Statute, (2) applicable treaties and rules of international
law, and (3) general principles of law whenever applicable

 No reservations to the Statute are permitted

 The ICC only exercises “complementary jurisdiction” meaning it can only step in if the national authorities are unable
or unwilling to act. This principle ensures that the presence of the ICC will not be in derogation of the individual
sovereignties of the states

 The ICC will only be “born” when at least 60 states ratify the Rome Statute; presently only 43 countries have ratified it –
although there are some 139 signatories

TEXACO OVERSEAS PETROLEUM v. LIBYAN ARAB REPUBLIC – “internationalized contracts” What does “internationalization
of a contractual relationship” mean? A sovereign state may enter into contractual relations w/ private persons or corporations.
Through this, certain private persons may acquire “capacities” w/in the international sphere. However, their capacities,
unlike those of sovereign states, are limited only to those that may be necessary to enable to them to act internationally
and to invoke, in the field of IL, such rights that they may derive from the contract. Simply put, internationalization does not
elevate a corporation or person to the status of a state – it only confers upon him such rights as he may need for him to perform his
obligations and enforce his rights in international law.

1950 CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS – “European Human Rights Commission”
After affirming some of the rather commonly known basic rights – such as the right to liberty, and the rights of the accused under
detention, it established a European Commission on Human Rights, to w/c an individual may appeal after all domestic
remedies have been exhausted. The Commission may then refer the matter to the European Court of Human Rights. Any
person may address a complaint to the Secretary General of the Council of Europe if he is a victim by one of the High Contracting
Parties (presumably states) – provided that the latter recognizes the competence of the Commission. The lawfulness of the orders
of the Commission may be questioned before the Court at the instance of any member-state, the Council, or any individual or legal
person.

DIRECT vs. INDIRECT OBLIGATIONS OF CORPORATIONS (VASQUEZ ARTICLE) – Considering that many transnational
corporations have amassed great wealth and power, and the fact that some small governments have been unable to curb their
potential human rights violations, the idea that corporations should be made “directly” liable under IL has been advanced by
many commentators. Pursuant thereto, the Norms on the Responsibilities of Transnational Corporations & Other Business
Enterprises w/ Regard to Human Rights was passed by the Su-Commission on the Promotion of Human Rights but was shelved
by the UN Commission on Human Rights due to the vehement protests from the corporate sector. The author seems to disagree
w/ the wisdom of the proposition for the following reasons:

 It represents a dramatic departure from the classical model where states are the ones that assume obligations and
responsibilities under international law. This by itself is not sufficient reason not to depart from the classical model, but there
are more reasons.

 Imposing direct liability to corporations will cause the disempowering of states, w/c are not expected to respond yieldingly.
Under the previous setup, states have wide latitude to determine municipal rules and the conduct of corporations w/in their
respective jurisdictions

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 To impose liabilities on individuals, on the other hand, would undermine the limited liability feature of corporations w/c has
been an attractive feature to utilize the corporate medium

 Norms not backed by coercive force will be problematic in case of non-state entities. Unlike states that voluntarily relinquish a
part of their sovereignty out of the belief that membership in the international community will redound to eventual benefit,
corporations are more likely to decide based on their economic interests. Without a coercive force, human rights will be
trivialized, rather than promoted.

Perhaps the best way to promote the protection of human rights among the third world countries is for the said
developing countries to agree upon certain standards for multi-nationals operating w/in their respective territories. This
rule will be more consistent w/ the classical model, by imposing the obligations upon the corporations “indirectly.” They can also
focus on the elimination of corruption and the promotion of democratic governance.

Notes from the Bernas Book


Subject of International Law – entities endowed w/ rights and obligations and possessing capacity to take certain kinds of actions in
international law. They have international personality. The extent of their powers under IL varies.

Object of International Law – those who indirectly have rights under or are the beneficiaries of international law through the subjects
thereof

Theories on Recognition

Declaratory Theory – the existence of the state depends upon the presence of the elements, not recognition. By recognizing a
state, the recognizing state merely affirms or accepts the current situation.

Constitutive Theory – recognition constitutes a state and is what confers upon it legal personality Recognition is only terminated
by the recognition of another regime. Once a state has been recognized, it cannot be “de-recognized” so long as it satisfies the
requirements or elements of statehood.

- Jurisdiction of States -
PRELIMINARIES
Jurisdiction as a concept pertains to the capacity of the state to:

1. Legislate ad prescribe laws or rules


2. Enforce the laws or rules

Jurisdiction, as a power, is exercised over:

1. Persons
2. Property
3. Events

JURISDICTION OVER TERRITORY

ISLAND OF PALMAS CASE – “discovery / mere inchoate right / actual & peaceful display of sovereignty” The US and the
Netherlands dispute over title to the Island of Palmas – the US alleging that it was ceded to it by Spain by virtue of the Treaty of
Paris. The US argues that it was Spain that “discovered” the Island, and also invokes the principle of contiguity – that islands
situated outside territorial waters should be considered part of the nearest continent or island of considerable size. These
contentions cannot be sustained. Spain can only transfer such rights that it had in the first place. Assuming that Spain
“discovered” the island, discovery only confers an inchoate title w/c must be perfected by effective occupation. It cannot
prevail over the peaceful and continuous display of state authority by another state over the said Island. The principle of
contiguity, on the other hand, has no basis in IL.

Netherlands, on the other hand, has been in continuous display of authority since the 1700’s through progressive
evolution and intensification of control; and Spain never contested it. The conditions for the acquisition of sovereignty on
the part of the Netherlands are therefore satisfied.

The forms of acquisition of title are:

1. occupation coupled w/ effectiveness


2. conquest (allowed before)
3. cession
4. accretion

Mere title is insufficient; there must be the element of actual display of state functions.

LEGAL STATUS OF EASTERN GREENLAND – “intention + actual exercise” During the 1860’s the Danish Government granted
various concessions for the purpose of trading in and exploration of Eastern Greenland. Denmark also enacted legislation

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regarding fishing limits, establishment of hunting and fishing stations, division into provinces, reservations of commerce to
Danish nationals, and entered into commercial conventions where it endeavored to secure the exception of Greenland from the
said conventions (a form of recognition) – all w/ the end in view of occupying the same under the sovereignty of the King. In 1930,
Norway proclaimed that it has proceeded to occupy certain territories of Eastern Greenland and even conferred police
powers to some of its nationals – alleging that Eastern Greenland was terra nullius and was outside the coverage of the Danish
colonies.

A claim to sovereignty not based on some title (such as a treaty) but instead upon continued display of authority is
subject to 2 requisites: (1) there must be “intention” and will to act as sovereign, and (2) there must be “actual exercise”
of such authority. Both requisites are present in favor of Denmark. True that Denmark’s concessions may have been
unsuccessful, but considering that no other power has disputed its claim, the actions of Denmark are sufficient to establish
“intention.” Legislation is also one of the most obvious forms of exercise of state power. The authority exercised by the Danish King
through the various acts stated above was sufficient to give his country a valid claim to sovereignty. Eastern Greenland was
therefore under the sovereignty of Denmark, and the occupation by Norway thereof was illegal and invalid.

THE WESTERN SAHARA CASE – “terra nullius / precondition to occupation” Morocco claims that it has legal ties w/ Western
Sahara at the time of colonization by it of Spain, and thus must exercise sovereignty thereupon. It alleges that at the time of its
occupation by Morocco, Western Sahara was terra nullius. This contention is untenable. As a rule, a cardinal condition of a
valid occupation is that the territory is terra nullius. Territories inhabited by tribes or peoples having social and political
organization – such as Western Sahara of that time – cannot be regarded as terra nullius. There were various political tribes
under certain chiefs competent to represent them. Morocco’s invocation of the Greenland Case is unavailing. There is evidence to
suggest that Morocco was not in actual exercise of authority – largely due to the presence of the tribes ad their constant movement
and warring. By comparison, Spain’s sovereignty then proceeded from agreements w/ the local chiefs and was not in the nature of
“occupation” but was more in the nature of cession.

THE ISSUE ON SABAH – The territory was originally owned by the Sultan of Sulu, Jamalul Alam. He leased the same to Baron de
Overback and Alfred Dent. For some reason, Dent consolidated ownership and established the British North Borneo Co. w/c was
placed under British protectorate. The Company surrendered its rights thereto to the British Government and Sabah became a
British Colony. When Malaysia was formed, Sabah became its constituent part. The Sultan Esmail Kiram, heir to Sultan Alam,
thereafter cancelled the lease and ceded the territory to the Philippine Government (cession).

The claim of the Philippines is therefore anchored on the proposition that as lessee, Dent could not have acquired
dominion over the territory and cede the same to the British. Nonetheless, the 1987 Constitution in defining the national
territory omitted the phrase “other territories belonging to the Philippines by historic right or legal title.” Relations between
Malaysia and the Philippines have been normalized since then, and the issue remained unresolved.

THE ISSUE ON THE SPRATLYS (COQUIA ARTICLE) – The Spratlys Islands is presumed to be rich in oil ad fish reserves and is
strategically located in the South China Sea, at the very center of maritime and air trade routes. Many countries lay claim. The
Philippines’ claim is based on occupation – that the same was terra nullius when it was discovered by Tomas Cloma, and since
then it was considered under Philippine Law as an administrative portion of Palawan. China claimed sovereignty, alleging the
presence of Chinese Temples and the expeditions send by its emperors. Vietnam’s contention was based on succession – based
on the dissolution of the French Indochina, the presence of temples and structures, missions, etc. Malaysia, Taiwan, and Brunei
also law claim. Negotiations are at a standstill – but China is allegedly creeping in by building permanent structures. It
was maintained a strong and rigid policy claiming sovereignty over all islands w/in the area – and requiring prior
clearance before passage of military ships and vessels.

So what remedies are available? Diplomatic negotiation through the ASEAN is a good option, participation in workshops for
management of potential conflicts, and the organization of an International Authority. Bringing the matter to the Security Council will
only be subject to the veto of China; the ICJ cannot assume jurisdiction unless both parties submit to it. Arbitration is possible. The
most feasible option is to bring the case to the International Tribunal on the Law of the Sea – the convention of w/c China
is a party. Our failure to act may result to loss of the territory just like in the Island of Palmas Case.

CLAIM TO KALAYAAN ISLANDS (ARIZALA ARTICLE) – “” Tomas Cloma laid claim to the Spratlys Islands and announced the
establishment of a separate government therein. He thereafter ceded the Spratlys to the Philippine Government, and PD 1596 was
promulgated constituting the same as a municipality of Palawan. The Constitutions of the Philippines claim as part of the national
territory “all other territories over w/c the Philippines exercises sovereignty and jurisdiction” w/c was opined to include Sabah and
the Spratlys. The bases for the Philippines’ claims are as follows:
 Proximity – this consideration is relevant but not decisive as an independent source of title. The “principle of contiguity,”
after all, has no basis in IL, but it may, under certain circumstances, operate to raise certain presumptions. Effective
occupation remains the best legal test.

 The Spratlys are part of the Continental Margin – under the UNCLOS, the coastal state exercises sovereign rights
over its continental shelf for the purpose of exploring and exploiting resources – such rights not dependent on occupation
or any express proclamation.

 By Reason of History – For historical consolidation to take place, there are 3 elements: (1) exercise of authority over the
area, (2) continuity of the exercise of authority, and (3) the attitude of foreign states. To be valid against third states, it has
to be perfected by recognition.

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 Discovery and Effective Occupation – mere discovery does not suffice; it must be coupled w/ effective control – or
actual, peaceful, and continuous display of state functions. The territory, as a precondition, must be terra nullius. Cession
of territory must be from one state to another; s cession made by a private individual to a state (and vice versa) is not
recognized under the Law of Nations.

 Uti Possidetis Juris and Occupation – literally means that “as you possess, you shall continue to possess.” As
between one having title and another having possession, the former has preferential rights; but in the absence of clear
title, the one having effective control shall be preferred.

 Abandonment – that the claims of the other states have lapsed by abandonment. Long and uninterrupted possession,
known to the owner but not disturbed by him, may be taken as proving abandonment.

Options:

 A treaty arrangement – claims would be frozen for the time being for continental cooperation
 Condo-imperium – joint exercise of territorial sovereignty
 Condominium – joint exercise of territorial sovereignty w/ a right to dispose

AIRSPACE

STATE CONTROL OVER AIRSPACE (MARTIAL ARTICLE) – “national sovereignty” There were once 2 conflicting theories on the
rights to airspace: (1) freedom of the air, and (2) national sovereignty over the air. Under the Paris Convention and the 1944
Chicago Convention the theory of national sovereignty has been accepted. Now, states have complete and exclusive
sovereignty over air space above its territory as well as the territorial waters adjacent to its national territory. They form
part of the territorial sphere of validity – where the state can undertake coercive acts. There have been suggestions to
include “flight space” – such as that part of the universal space beyond the earth where rocket flight takes place.

CONVENTION ON INTERNATIONAL CIVIL AVIATION

 No state aircraft (military, customs, police) shall fly over the territory of another state or land thereon w/o authorization by
special agreement or otherwise

 All other aircraft shall have the right to make flights into, or in transit on-stop, across its territory and make stops for non-
traffic purposes w/o necessity of permission. The state may require landing.

 Prescribed routes and special permission may be required in certain instances – such as over inaccessible regions or
those w/o adequate air facilities.

INTERNAL AND TERRITORIAL WATERS

1982 CONVENTION ON THE LAW OF THE SEA

 In case of archipelagic waters, the sovereignty of the state extends to its archipelagic waters, and to an adjacent belt of
sea to be known as the territorial sea
 Sovereignty extends to air space over the territorial sea as well as to the seabed and subsoil
 Every state may establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from the
baselines

THE FISHERIES CASE – “skjaergaard / outer limits / straight baselines” Due to the increased presence of British fishermen w/ their
advanced trawlers, in Norwegian coastal waters, Norway enacted a Royal Decree delimiting the Norwegian Fisheries Zone. A
dispute arose as to the baselines from w/c the agreed 4 mile territorial sea will be reckoned. Norway alleges that what really
constitutes the Norwegian coast is the outer line of the “skjaergaard” a group of islands, inlets, and rocks, w/ countless
straits and channels, w/c lies along the coast of Norway – and that it is from the outer limits of the same that the straight
baselines should be reckoned. This was sustained by the ICJ. The skjaergaard has been exploited by Norwegian
fishermen since time immemorial and constitutes a whole w/ the mainland itself. This is mandated by geographical
realities. That being the case, the waters embraced therein form part of the internal waters of Norway.

The straight baseline method may also be utilized considering that there was no single contiguous low water mark that
could be followed along the sinuosities of the coast. Likewise, when there is a deep indentation (such as in the base of bays),
the baseline becomes independent of the low watermark. The same applies to the case at bar. Assuming that there are
navigational routes called Indreleia around and between the skjaergaard, they do not possess a different status from internal
waters. Delimitations of internal waters do not depend entirely on municipal law – they have an international aspect. The
validity of the delimitation depends on IL. In deciding such cases as these, the court must consider different factors such as (1)
close dependence of the territorial sea upon the land, (2) close relationship between the sea areas and the land, and (3) economic
interests of the region.

THE CORFU CHANEL CASE – “international strait / innocent passage” As British cruisers were passing through the North Corfu
Channel, they were damaged by mines either placed by Albania, or at least, were there w/ its knowledge. Another time, the British
cruisers were fired at as they passed through the Channel. UK alleges that Corfu Strait is an international strait – connecting 2

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points of the high seas – and that innocent passage should be allowed. Albania alleges that its territorial sovereignty was violated,
and that it had a right to demand prior authorization.

The Court ruled in favor of UK. The North Corfu Channel belongs to that class of international highways through w/c the
right of innocent passage exists – at least during times of peace. The fact that it is an alternative route as Albania
contends is immaterial. The decisive criterion is geography: that it connects 2 parts of the high seas and is used for
international navigation. Considering that Albania was at that time hostile w/ its neighbor Greece, it is justified in issuing
reasonable regulations for passage of warships – but not outright prohibition or requirement of special authorization.

ARCTIC WATERS & CANADIAN SOVEREIGNTY (McRAE ARTICLE) – “internal waters / innocent passage” At the 3rd UN
Convention on the Law of the Sea, Canada sought to acquire jurisdiction over the so-called Arctic Waters (up to 200 miles) under
its Pollution Prevention Act – w/c provided that Canada could arrest vessels violating its pollution standards. Article 234 of the
UNCLOS was inserted and permitted states to enact regulations covering the Exclusive Economic Zones. Of course, the limited
jurisdiction recognized under Art. 234 must be exercised w/ due regard to navigation – especially the right to innocent
passage. Canada cannot thus impose regulations w/ the practical effect of impairing the right to innocent passage.
Question was raised in this case as to whether the straight-baseline method can be applied as in the Fisheries Case. It has the
effect of extending the coastal state’s jurisdiction over what would have been high seas, and it will have the effect of closing off
certain areas as “internal waters.” This will allow Canada to exercise complete control over any future shipping w/in those waters.

This proposition will surely bring much controversy. The rationale for using the straight-baseline method varies
depending on the case. There must be a close link between the land and sea domains to be enclosed. Nonetheless, as
previously stated, even if the said domains are successfully enclosed and considered “internal waters,” as Canada wants, the
rights to innocent passage are not affected. Nonetheless, considering that the channels of the Arctic Waters are seldom
used, such as the Northwest Passage, they cannot, at this time, be considered international straits (see next item). But
they have the potential of becoming so in the future.

THE NORTHWEST PASSAGE IN INTERNATIONAL LAW (PHARAND ARTICLE) – “international straits” Can the Northwest
Passage in the Arctic Waters be considered as an “international strait?” Not yet, but possibly in the future. There are 2 elements
to be considered in determining if a passage of water qualifies as an international strait: (1) geographical, that it is a
narrow passage between land connecting 2 large bodies of water, and (2) functional, meaning they must be of
considerable importance to international maritime commerce. The first requisite was satisfied, but not the second. Factors to
be considered for the “functional element” are the number of ships passing and the number of flag states represented by such,
among others. It must at least be a useful route, even if only an alternative one.

In this case, only a few American crossings have taken place (18 recorded) through the NW Passage. This does not suffice to
imbue the same w/ the character of an international strait. Potential use is insufficient; there must be actual use. But it is
possible that in the future, the said strait may become an international strait. The right to innocent passage applies both to
territorial and internal waters. Considering that NW Passage is not an international strait, passage may be temporarily
suspended whenever essential for the security of the coastal state (Canada). The right of suspension does not apply in
case of international straits – as in the Corfu Case.

On further note, in case transit passage becomes applicable in NW Passage, then aircraft and vessels may pass in their normal
mode – this means that submarines may pass even if submerged. But Canada nonetheless retains its rights to impose regulations
for prevention of marine pollution. It may inspect foreign vessels if the same willfully violate its anti-pollution laws.

JURISDICTION OVER ADJACENT MARITIME SEAS

NORTH SEA CONTINENTAL SHELF CASE – “mere extensions of the territory” Germany on the one hand and Denmark & the
Netherlands made line agreements delimiting the North Sea Continental Shelves. Dispute arose as to the method of measuring the
same. Germany invokes “just and equitable share” while Demark & Netherlands invoke the “equidistance principle.” The idea
of extension is the decisive criteria. What confers title ipso jure to a continental shelf is the fact that the submarine areas
concerned may be deemed actually part of the territory of the coastal state. Although covered w/ water, they are mere
prolongations or continuations of that territory. It is but an extension of something already possessed. Therefore, either of
the contentions is correct. Neither is the proximity principle applicable. Even though an area is closer to 1 state more than the
other, if it is part of the continental shelf of the latter, then to the latter it belongs.

GULF OF MAINE CASE – “adjacency is not the test” This involves a delimitation dispute between the US and Canada. Canada
asserts that the concept of geographic adjacency constituted the basis of title of the coastal state to the partial extension of its
jurisdiction to the continental shelf and its waters. True that IL confers upon a state legal title to a continental shelf adjacent to
its coast; but it is not the “adjacency” that confers title. It is the extension of territory principle that applies, such that a
state can even exercise continental shelf rights w/ respect to areas closer to the coasts of other states, as long as the
continental shelf forms but a continuation of its land territory. The equidistance principle is a practical method that may be
applied for purposes of delimitation, but it is not a rule of IL.

LIBYA/MALTA CONTINENTAL SHELF CASE – “distance & prolongation / complementary” The Continental shelf and the
Exclusive Economic Zone (EEZ) are linked in modern law. One of the circumstances to be considered in delimiting the continental
shelf is the legally permissible extent of the EEZ. In fact there cannot be an EEZ w/o a continental shelf – but there can be a
continental shelf where there is no EEZ. The institution of the EEZ has become a part of customary law due to the practice of
states. Nowadays, greater importance must be attributed to distance from the coast. The distance principle, although in
no way superseding the natural prolongation rule, must be considered as “complementing” the same. It is relevant in

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defining both the EEZ and the continental shelf. Where the continental margin does not extend as far back as 200 nautical
miles from the shore, natural prolongation is therefore in part defined by distance from the shore.

EXCLUSIVE ECONOMIC ZONE

FISHERIES JURISDICTION (UK vs. ICELAND) – “” Iceland, sue to its significant dependence upon fishing, repudiated the 1961
Exchange of Notes w/ the UK and unilaterally imposed an increase of its exclusive fisheries jurisdiction initially to 12 nautical miles,
and eventually to 50 nautical miles w/ the end in view of exclusive fishing rights over the entire continental shelf area. Claiming
“preferential rights” it thereafter promulgated regulations prohibiting the UK from fishing therein. The UK recognized he special
situation of Iceland and its dependence upon fishing, but rejected the contention that the Exchange of Notes was no loner in force
as well as the alleged right of Iceland to exclude UK altogether from the fisheries zones. The acts of Iceland cannot be
sustained.

The validity of delimitations depends upon IL. The freedom of the high seas is made subject to the consideration that its
utilization shall be w/ reasonable regard to the interests of other states. Both concepts of “fishery zone” and “preferential
right” are crystallized into customary law. However, preferential rights are implemented by agreement between states
concerned, and it is wholly inconsistent w/ the idea of excluding fishing activities of all other states. Besides the UK has
substantial historic and special interests in the disputed waters. Iceland unilateral action is thus an infringement of the 1958
Geneva Convention on the Law of the Seas, mandating due regard to the interests of other states. Iceland’s preferential rights may
vary depending on the circumstances, but they must be reconciled w/ the interests of the UK – and this is to be done by
negotiation.

 EEZ is that economic zone beyond and adjacent to the territorial sea, not extending beyond 200 nautical miles from the
baseline, over w/c sovereign rights for the purpose of exploration and exploitation of resources may be done; the coastal
state must of course give due regard to the rights and duties of other states.

JURISDICTION OVER PERSONS AND ECONOMIC ACTIVITY

Preliminary Theories (applicable to the exercise of criminal and civil jurisdiction):


1. Nationality – that civil law follows the national wherever he or she may be
2. Passive Personality – punishes aliens abroad who injure one’s citizens
3. Security Principle – punishes aliens for acts against a State’s security, independence, and territorial integrity
4. Universality – such as those involving piracy and crimes against humanity
5. Objective Territoriality – where the elements of the crime occurred in 2 states
Criminal Jurisdiction:
1. General Rule: vessels on the high seas are subject to the authority of the flag state
2. Exception: piracy, slave trade, hot pursuit, right of approach

THE S.S. LOTUS CASE – “collision case / extension of territory / concurrent jurisdiction” The French steamer Lotus collided w/
the Turkish vessel Boz-Kourt while both were in the high seas, w/c was split into 2, causing the death of 8 Turkish nationals. The
survivors were rescued, and the Lotus arrived at Constantinople (Turkey) where the Lieutenant of The Lotus, Monsieur Demons,
as well as the captain of the Boz-Kourt Hassan were arrested and tried for and convicted of involuntary manslaughter based on
Turkish Law. France contends that the Turkish courts have no jurisdiction, and their assumption of jurisdiction was contrary to IL.
France alleges that since the crime was committed in the vessel bearing its flag, it should have exclusive jurisdiction. The matter
was submitted to the ICJ. There is no principle in IL that prohibits Turkey from assuming jurisdiction. In the absence of a
prohibitive rule, the states have ample discretion. Thus, Turkey need not locate a principle of IL to justify the exercise of
jurisdiction; it suffices that there is no prohibition.

Territoriality of criminal laws is not absolute and admits of certain exceptions. True that a ship forms an extension of the
territory of its flag state, and what occurs therein is treated as if it took place in the state itself. In this case, considering
that there are 2 ships involved, then the act (negligence) committed by Demons affects both the territory of France and
Turkey – hence they may exercise concurrent jurisdiction.

New Rule: under the UNCLOS, no penal or administrative proceedings may be instituted against the master of a ship
except before the judicial or administrative authorities of the (1) flag state, or (2) the state to w/c such person is a national.

ATTRONEY GENERALOF ISRAEL v. EICHMANN – “genocide / hostis humani generis” Eichmann (one of Hitler’s high ranking
generals) was tried before an Israel Court for war crimes he allegedly committed during the Second World War – more particularly
genocide against he Jewish Race. Does the Israel Court have jurisdiction even if the acts were committed elsewhere? Affirmative.
When a person commits a crime against the law of nations such as piracy (or in this case genocide), he becomes an
enemy to all mankind – a hostis humani generis. He places himself beyond the protection of any state. It is in fact the moral
duty of every state to enforce the natural right to punish such criminals guilty of the most extreme violations of the laws of nature so
detrimental to the welfare of the international community.

Thus, while as a general rule, criminal jurisdiction is territorial, the jurisdiction of a state may extend to punishment of
offenses against the laws of nations. Genocide has already been recognized as such under various conventions – such as the
Charter of the Nuremberg Trial, the Convention on the Prevention of the Crime of Genocide (under the UN), and various
affirmations of the UN General Assembly. The punishment of genocide is a matter if international concern condemned by all
of the civilized world. The same would apply to slavery, crimes against peace, and torture.

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EXTRADITION

Principal questions to be asked regarding extradition:

1. Is there a treaty?
2. Is the crime listed?

General Rule: There is no duty to extradite in the absence of a treaty.


Exception: Even in the presence of a treaty, crimes with a “political complexion” are exempt therefrom
Exception to the exception: an “attendant clause” such as one involving assassination of heads of state

EXTRADITION TO AND FROM CANADA – The foremost question that must be asked is “is there a treaty?” But even in the
absence of such treaty, or where the crime is not listed in the treaty, the Minister of Justice may, as a matter of discretion,
nonetheless order the extradition of the fugitive. The procedures for extradition may be subject to treaty stipulation. However,
recent trends have been for the governments to be more liberal in terms of procedure; and this is wise considering that in
extradition cases, time is usually of the essence. The usual practice is for the requesting state to submit a formal requisition for the
surrender of the person, accompanied by such evidence sufficient to warrant the
foreign country to commit the fugitive to trial as if the crime had been committed there. The quantum of evidence required to warrant
extradition may vary from state to state. “Political crimes,” however, are not included.

US – CANADA EXTRADITION TREATY (PERTINENT PROVISIONS) – The offense for w/c the fugitive is sought to be extradited must
be punishable by the laws of both contracting parties of a term exceeding 1 year. Conspiracy to commit such crimes is a
ground for extradition. Extradition shall not be granted: (1) when the person has already been tried and discharged or punished
in the territory of the requested state, (2) where the prosecution has already been barred by lapse of time under the laws of the
requesting state, or (3) in case of political crimes, except: kidnapping, murder, or assault upon a person w/c the contracting party
has a duty under IL to protect (such as heads of state), or those committed on board an aircraft engaged in commercial services
and carrying passengers.

Determination whether the person can be extradited is based on the laws of the requested state. Request must be
accompanied by warrant of arrest or judgment of conviction whichever is applicable. The person shall not be tried and detained for
an offense other than that for w/c extradition has been granted.

IN RE: REQUEST FOR EXTRADITION OF DOHERTY – “political exception / standards” Doherty was a member of the Provisional
Irish Republican Army (rebel) w/c organized an ambush of a British Army convoy, causing the death of a soldier. He was arrested
and charged, but was able to escape. He fled to the US. Now, UK seeks to extradite him; but the US court disallowed the same on
the ground that the crime charged against Doherty was political in nature. The factors that have to be considered whether an
act will qualify under the exception of political nature are: (1) the nature of the act, (2) the context in w/c it was committed,
(3) status of the party committing the act, (4) nature of the organization, and (5) particularized circumstances. Applying the
above standards, the court concluded that Doherty’s actions fell under the exception considering (a) the area where the act took
place, (b) that there was no violation of the Geneva Convention and IL, and (c) the attack was not targeted towards civilians.

The extradition treaty between the US and UK was later amended to exclude from the “political nature” exception certain serious
offenses such as: terrorism, hijacking and sabotage, cries against diplomats, hostage taking, and other heinous crimes such as
murder, manslaughter, malicious assault, and certain offenses involving firearms, explosives, and damage to property.

SEC. OF JUSTICE vs. LANTION – “extradition / notice & hearing” Herein respondent (Mark Jimenez) demands that he be furnished
a copy of the extradition petition and its supporting papers pending the evaluation stage w/ the Sec. of Justice, to w/c the latter
refuses. He claims that such refusal violates the right to notice and hearing. The implementing law, PD No. 1069 provides that the
notice shall be given at the same time as the warrant of arrest. The same rule is likewise provided in the treaty to w/c both the US
and the Philippines agree – and to w/c other countries have expressed the same interpretation. For the purpose of notice and
hearing, a criminal procedure cannot be equated w/ an extradition proceeding and it follows that the evaluation process is
not similar to preliminary investigation.

Also applying the balancing of interests test, considering that the case is only in its evaluation process, the nature of the right
being claimed is nebulous in character and the degree of injury is minimal. The balance is thus tilted in favor of the State. Such
procedural protection has not yet become due given the extent to w/c the defendant is to suffer loss or injury.

DD: Notice and hearing for extradition cases is not required during the Executive Phase of the proceedings, but it is required in
the Judicial Phase thereof. Considering that the petition is still under the evaluation of the Secretary of Justice, then it is still in the
Executive Phase – hence no notice and hearing is yet required. (Culled from Darvin’s Digests – Constitutional Law 2 version)

From Candelaria Notes: The extradition court may adjudge a person to be extraditable, but the President still has the final say.
Extradition is not criminal is not criminal in nature; it is sui generis. The Bill of Rights provision on due process finds no application
(?)

SECRETARY OF JUSTICE v. MUÑOZ – “provisional arrest / substantial compliance w/ requirements” Muñoz was charged before
a Hong Kong court for 7 counts of bribery and 7 counts of conspiracy to defraud. The HK Court issued a warrant for his arrest but
he fled to the Phils. The Justice Department of HK requested the DOJ for provisional arrest; the latter thus successfully procured
an Order of Provisional Arrest from the RTC Manila. Thereafter, a verified petition for extradition was filed by the HK Justice
Department. Muñoz assails the validity of the provisional arrest, alleging that he was detained longer than the 20-day period under

21
PD No. 1069, that the offense charged against him is not punishable under our laws (dual-criminality rule), and that the request
and documents in support of the request were not verified and were sent though fax machine. His contentions are all untenable.

First, whether the dual criminality rule was complied with is a decision for the court where the extradition petition is filed. The RTC
has yet to rule on the same, making his petition premature. There was also urgency in the request, considering the gravity of
the offense charged and the capacity of the extraditee to flee or destroy evidence. This in fact is the purpose of
provisional arrest. Also, the request for provisional arrest and its accompanying documents need not be verified; what
has to be verified is the petition for extradition. The request for provisional arrest also need not be sent by official
diplomat; that requirement also applies to the petition for extradition. Nonetheless, the HK Justice Department is the
authorized official to request for the same. There was also factual basis for the finding of the RTC of probable cause. All summed
up, there was substantial compliance w/ all legal requirements; the provisional arrest is therefore valid.

U.S. vs. JUDGE PURUGANAN – “Mark Jimenez / extradition is not criminal in nature / no bail” While his case was pending in the
US, Mark Jimenez fled to the Phils. Thus, the US seeks to extradite him. During the extradition proceedings, Jimenez applied for
bail. Is he entitled to bail? No. Extradition proceedings are sui generis. They are not criminal proceedings w/c call into
operation the rights of the accused under the Bill of Rights. Thus the right to bail does not accrue. The only question that
has to be resolved in such proceedings is whether he is extraditable and the extraditing country complied w/ the treaty. It is only a
measure of international judicial assistance, usually summary in nature, and requires merely a prima facie case. Final discretion
lies w/ the President. It is not concerned w/ his guilt or innocence, w/c will be tried separately by the extraditing country. Further,
Jimenez has demonstrated the capacity and will to flee, w/c is precisely what the Extradition Treaty guards against.

The general rule is that in extradition proceedings, bail is NOT a matter of right. It may only be granted as an exception if:

1. The defendant can demonstrate that he is not a “flight risk,” and


2. Exceptional, humanitarian, or compelling circumstances.

Jimenez bears the burden of proving the existence of any of the 2 exceptions.

Dissent of Justice Puno


From the moment a person is arrested, the guarantees under the Bill of Rights operate, including his right to bail. This is
more in accord w/ the Universal Declaration of Human Rights as well as the Covenant on Civil and Political Rights.

DD: A “flight risk” is a person who demonstrates the capacity and the will to escape. (Culled from Darvin’s Digests –
Constitutional Law 2 version).

Countries w/ Extradition Treaties w/ the Phils:


Canada Korea
Hong Kong United States
Australia Malaysia
Switzerland Indonesia
Thailand

GOVERNMENT OF HONG KONG v. OLALIA – “extradition / bail / primacy of human rights / new rule” This case is an offshoot of
Secretary of Justice vs. Muñoz. After the provisional arrest against Muñoz was sustained by the SC, the extradition proceedings
have turned out to be protracted such that he has been in detention for over 2 years now. Thus, he applies for bail. The Court is
not unmindful of the case of US vs. Judge Puruganan, however, the time has now come to re-examine the ruling. There is
nothing in our statutes or the Constitution limiting the right to bail to criminal proceedings. In IL, there has been a
growing regard for the sanctity of basic human rights. The individual is now a valid “subject” of international law. The
Phils. is in fact signatory to the UN Declaration of Human Rights as well as the Covenant on Civil and Political Rights.
Besides, the state’s power to deprive a person of life is not limited to criminal proceedings. Also, in the past, the right to bail has
already been granted to deportees; there is thus no reason not to grant the same to extraditees.

True that extradition is not criminal in nature, nonetheless, the means of enforcing the same have utilized the machinery
of criminal proceedings – such as arrest and detention. In this case, therefore, Muñoz will have the burden of proving by
“clear and convincing evidence” that he is not a flight risk. The case is thus remanded to the lower court to determine if he is
such flight risk.

TOKYO CONVENTION ON OFFENSES & ACTS ON BOARD AIRCRAFT – “offenses on board / jurisdiction” The objectives of the
Tokyo Convention are (1) to ensure that in case of offenses committed on board aircraft, there will always be jurisdiction – namely
that of the state of registration, and (2) to authorize the aircraft commander to take certain steps in relation to such offenders
whenever they jeopardize the safety of the aircraft. Pursuant thereto, the state of registration may exercise jurisdiction over
both “offenses” and “acts” in the nature of civil violations whenever committed on board the aircraft. It has power to
define the precise offenses over w/c to exercise jurisdiction; and it is discretionary upon the state of registration whether
to exercise that jurisdiction.

The contracting state w/c is not the state of registration may not interfere w/ an aircraft in flight in order to exercise its
criminal jurisdiction except for exceptional circumstances. For purposes of extradition, the offenses committed on board will
be treated as if committed in the territory of the state of registration. However, the Convention imposes no obligation to grant
extradition.

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Salient Provisions of the Tokyo Convention:
 The offenses included are:
o performing acts of violence w/c endanger the safety of the aircraft
o destroying or causing damage to aircraft in service
o placing therein substances or devices likely to destroy or endanger it
o o destruction or damage to air navigation facilities used for international air navigation
o communication of info known to be false w/c is likely to endanger the safety of aircraft in flight
o attempted stage is punishable – so are accomplices
 an aircraft is deemed in flight when all its external doors are closed following embarkation until the same are opened for
disembarkation, in case of forced landing, the aircraft is no longer in flight when the local authorities gain control thereof
 an aircraft is deemed in service from beginning of pre-flight preparations, until the same is in flight
 the Convention is not applicable to military, customs, or police flight services
 the Convention does not exclude criminal jurisdiction exercised under municipal law
 the state in w/c the offender is found is obliged to take him into custody, and to prosecute the him if he is not subjected to
extradition
 the above offenses are deemed incorporated in pre-existing extradition treaties agreed upon between the contracting
states
 if there is no extradition treaty, then this Convention may (must) be used as basis for extradition
 any dispute shall be subject to negotiation, and in case of failure thereof, to arbitration, and then to the ICJ at the instance
of the parties (this is subject to reservation)

From the Cadelaria Notes:


For purposes of extradition, a crime may be considered as having been committed in the state of registry. But the jurisdiction of
another state may be had if the offense:

 has an effect on its territory


 has been committed by or against its national or permanent resident
 is against its national security
 relates to a reach of its national rules of flight
 is the subject of an exercise of jurisdiction necessary to ensure the observance of an obligation arising from a multilateral
agreement

In the absence of an extradition treaty w/ another party to the Convention, the 1971 Montreal Convention becomes the basis for
such extradition.

CIVIL JURISDICTION
EXTRATERRITORIAL JURISDICTION & THE US ANTITRUST LAWS – The discussion revolved primarily on the exercise of
extraterritorial jurisdiction, in this case, for the purpose of applying the US anti-trust laws. The following are salient findings and
conclusions elucidated in the article:

 The general rule regarding jurisdiction is territoriality; that a state is competent to punish crimes committed w/in its own
territory. This, however, was never meant to be an absolute rule. There may be extra-territorial jurisdiction, but this is subject
to the principles of IL, and there must be limits and underlying justifications for its exercise, lest it be subject to abuse.

 Even if an act was lawful where it was done, it may still be made unlawful in another jurisdiction – especially if there is
prejudice to the safety and interests of the latter. But the extra-territorial exercise of such jurisdiction must not be permitted to
extend in such a way as to amount to interference w/ the affairs of another sovereign state, in w/c case, it amounts to abuse.

 The principle of nationality – IL permits a state to claim jurisdiction over its nationals (natural or juridical) w/o territorial limit.
With regard to corporations, the courts can apply not only the place of incorporation test but also other tests such as control
test to determine nationality and activities.

 The passive territoriality principle – a state may claim to punish aliens for offenses committed abroad to the injury of its own
nationals. This is also known as the “protection principle.” This is the most questionable of all grounds – considering that when
a person resides in another territory, he must then seek redress based on the laws of that place, and not from the laws of his
state.

 The security principle – a state may exercise extraterritorial jurisdiction over crimes directed against its security, territorial
integrity, credit, or interests. This is reasonable considering that most states do not punish persons for offenses directed
against other states. But this rule must be limited to prevent abuse; the Harvard draft code proposes that it should not cover
acts done under cover of a liberty guaranteed under local law.

 The universality principle – the suppression of crime is an interest common to all states. This rule is specifically applicable to
such crimes as piracy, where the offender is deemed an enemy to all mankind – a hostis humani generis

 Extension of the territorial principle – The offense is deemed committed w/in a state’s territory when one of its
constituent elements, more so its effects, take place there. This applies in the following cases: (1) the act was
commenced w/in the state but consummated in another state (subjective principle), or (2) the act was commenced in another

23
state but consummated w/in the territory of the subject state (objective principle). This is in fact an exercise not necessarily of
extraterritorial jurisdiction, but of territorial jurisdiction – except extended. The objective principle is said to apply where the act
produces effects to the territory of the state, but such “effects” must be limited to only those w/c are a direct consequence of
the act (proximate cause). Intent is immaterial.

INT’L LAW ASSOC. RESOLUTION ON EXTRATERRITORIAL APPLICATION OF ANTITRUST LAWS

Salient provisions:

 A state has authority to prescribe rules regarding conduct of aliens abroad if (1) part of the conduct being a constituent
element of the offense occurs w/in the territory, and (2) acts or omissions occurring abroad are constituent elements of
the same offense.

 Municipal law is the authority for determining the elements of the offense, but IL retains residual power to specify what is
not capable of being a constituent element for purposes of jurisdiction.

 In order to prescribe extraterritorial rules, (1) the conduct and its effects are constituent elements of the activity to w/c the
rule applied, (2) the effect is substantial, and (3) it occurs as a direct and primarily intended result of the said act.

 The authority to prescribe such rules is applicable only in circumstances of the most exceptional kind.

 Each state must give due regard for each others’ interests, and may not require conduct that is illegal o the state where
The alien resides.

US v. FIRST NATIONAL CITY BANK – “foreign bank / freeze order” The Omar Corporation (Uruguay) was assessed by the US
government of substantial tax deficiencies amounting to some $ 19 million. A complaint for collection was filed but Omar liquidated
its assets and started sending the monies out of the country and home to Uruguay, and deposited the same in the First National
City Bank (Citibank) in Montevideo. At the instance of the US government, the District Court issued an Injunction, ordering the
freezing of the Citibank Account until jurisdiction over the person of Omar can be acquired. Is the injunction proper? Majority
opinion says yes. It is a reasonable restraint for the purpose of disallowing Omar from dissipating the assets until
jurisdiction over it can be acquired. The fact that the Uruguay Citibank is a separate entity is not germane to the issue.
Citibank has practical control over all of its branches; thus the said branches are as much w/in the reach of the Injunction
as the home office in Uruguay. There is besides no clear showing that such order would violate foreign law.

Dissent of Justice Harlan (joined by Justice Goldberg):


Citibank in Uruguay is a separate entity from its local branch. The order would expose Citibank to exactly the kind of hazards
that the “separate entity” seeks to protect against, and could subject Citibank to double or multiple liability. Foreign depositors
would now be discouraged from depositing in US banks for fear that the US government can reach their funds wherever
they are w/ a branch office of the same. Considering that Citibank is an innocent stakeholder, the doubt should be resolved in its
favor. If reciprocity is to be applied, then there is nothing to preclude Uruguay Courts from freezing accounts in the US. And
there is nothing to indicate that Uruguay would even honor the Injunction; it has nothing to go on but a bare request so to speak.

Great care should be exercised in extending the scope of our in personam jurisdiction into the international field – both
w/ respect to exercising judicial power for purposes of tying up properties in foreign countries, and similarly in allowing
properties here to be tied up by foreign courts. The issuance of the freeze order was therefore inappropriate. It had the effect
of extending the jurisdiction of the federal courts beyond permissible limits.

STATE IMMUNITY
As a rule, the State itself and its head of state are immune from another state’s jurisdiction. It is based on the doctrine of
equality and independence of states.

THE TATE LETTER (1952) – “classical vs. restrictive theory” There are 2 conflicting concepts of sovereign immunity. The first is
the “classical or absolute theory” w/c states that a sovereign state cannot w/o its consent be made respondent in the
courts of another sovereign state. The newer “restrictive theory” states that the immunity of a state is recognized w/
regard to public or sovereign acts (jure imperii) but not w/ respect to private acts (jure gestionis). In both theories however,
sovereign immunity is not claimed or granted in action involving real property (save for diplomatic or consular property) or w/
respect to the disposition of property of a deceased person even though a foreign sovereign is the beneficiary. Current practice
among the states adhering to the classical theory has been towards the direction of accepting the restrictive theory –
such as by being signatory to the Brussels Convention through w/c immunity for government owned merchant vessels is
waived. The US has, through this letter expressed that it will adhere to the restrictive theory – after having supported the
classic theory for quite some time.

 Act of State Theory – acts of a state carried out within its own territory cannot be challenged in the courts of another
country. The same rule applies in favor of agents of the state. The exception is w/ regard to war crimes, or crimes against
peace and humanity, or international security crimes. Rationale: the courts should not embarrass the executive in its
conduct of foreign relations by questioning acts of foreign states.

 Immunity of State – it is only an aspect of the Act of State Theory.

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VICTORY TRANSPORT v. COMISARIA GENERAL – “wheat purchase / jure gestionis” Victory Transport chartered a ship to
Comisaria General (Spain) to carry surplus wheat purchased by the Spanish Government under an Agricultural Commodities
Agreement w/ the US. There was an arbitration clause. The ship was damages while in the ports of Spain w/c were allegedly
unsafe for large vessels. Comisaria refused to arbitrate; thus Victory brought an action to compel the same to submit to arbitration.
Comisaria invokes state immunity. Immunity cannot apply in this case. The transaction was a commercial act (jure
gestionis) – not a strictly political or sovereign act. There was even an arbitration clause. The US Court in this case made
reference to the Tate Letter and stated that the US now adheres to the restrictive theory. The purpose of the restrictive
theory is to accommodate the interests of private individuals doing business w/ foreign governments, while at the same time
permitting the foreign states to do political acts w/o being subjected to the embarrassment of defending the propriety of its acts in
foreign courts. Immunity is in derogation from the normal exercise of jurisdiction and should be granted only in clear cases
– such as: (1) internal administrative acts, (2) legislative acts, (3) armed forces, (4) diplomatic activity, and (5) public
loans.

CONGO v. VENNE – “pavilion designs / we Congo no pay, click! / sovereign act” The Republic of Congo contracted the services
of a Canadian architect for the purpose of conducting preliminary studies and making designs for its pavilion to be built at Expo ’67
(international exhibition). Congo was billed $ 12,000, but refused to pay, stating that it discontinued the project and invoking state
immunity. Applying the restrictive theory, the Court ruled in favor of Congo. It was a sovereign act; thus immunity lies.
Considered from the point of view of the architect, the transaction may be a commercial one; but what is important is the
nature of the transaction from the perspective of the government of Congo. The contract was entered into by the
diplomatic representatives of Congo as well as by its Foreign Affairs Department. Thus Congo cannot be impleaded in the
Canadian Courts.

The case must be decided as a whole; there is no need to throw the burden of proof regarding state immunity upon any party. That
being the case, Congo was under no obligation to justify that no commercial dealings will be had in its supposed pavilion.

DESAULLES v. POLAND (LASKIN DISSENT) – “just a bunch of random thoughts on immunity…” The absolute theory must give
way to the new and restrictive theory. The former need not be revived in view of deficiency of evidence to overcome any suggested
presumption that when a sovereign acts through the diplomatic channels, any ensuing transaction w/ a private person is for a so-
called public purpose. Independence as a justification for the absolute rule is contrary to the principle of territorial jurisdiction. This
has gained support from various scholars and commentators. The expansion of the range of activities has made it difficult to
absolutely delineate sovereign from private acts. For this purpose, not only status but also function must be considered as a factor
in determining the nature of the transaction.

IN RE: PNB – “Marcos Wealth Dispute / injunction against foreign government / act of state” Vast amounts of Marcos Wealth
were deposited in PNB in the US. A class of human rights victims during the Marcos Regime is alleging that the said wealth should
be held in trust for them for reparations; but the Philippine Government sought to recover the same as the monies were supposedly
stolen from the treasury. The Phil. Supreme Court rendered a decision ordering the withdrawal of the said funds and their reversion
to the treasury. Pursuant thereto, the government proceeded to withdraw the funds in the US PNB. Then the human rights
victims were able to obtain an injunction from the US District Court w/c thereafter enjoined the transfer and issued a
Show Cause Order against PNB (possible contempt) for violation of the injunction, and commenced discovery
procedures against it.

The decision of the District Court violated the “act of state” principle. The District Court practically declared the judgment
of the Phil. Supreme Court null and void. True that the act of state principle is normally applicable in private litigations where a
party thereto is a sovereign state, but the rule is flexible and can apply to the case at bar. The forfeiture by the Phil. Government
of the said monies is an act of state – pursuant to its mandate to recover the stolen funds. Generally, the act of state
doctrine applies to official acts of foreign sovereigns performed w/in their own territory; however the act of the Phil. SC
was not wholly external. The PNB after all is a Philippine corporation.

Even assuming that the assets are now in Singapore, this fact does not preclude the application of the act of state
doctrine. Such doctrine is to be applied pragmatically and w/ reference to the underlying considerations of the case. The
District Court is thus directed to refrain from further actions regarding the controversy.
Similarly, the act of the District Court in setting aside the freeze order by the Swiss Government pursuant to the request of the Phil.
Government regarding the alleged ill-gotten wealth accounts therein was in violation of the act of state doctrine.

CANADIAN STATE IMMUNITY STATUTE – “salient rules only” The statute reflects the application of the restrictive theory.
Therefore, it does not cover commercial activity, nor doe s it apply in case of deaths or destruction or damage to property w/in
territory of Canada, or to criminal proceedings, or to actions involving succession or gifts. The same rule applies to ships and its
cargo; there is no immunity if the transactions involved therein are commercial in nature. The properties and accounts of such
foreign states are also free from execution, seizure, or forfeiture unless used for commercial activities. Military properties are
definitely immune. The rights arising therefrom may be waived such a by voluntary submission to the jurisdiction of the courts or by
other expressions of consent. No relief by way of injunction or specific performance may be granted to foreign states unless they
consent thereto.

IL CONGRESO DEL PARTIDO – “sugar shipments / breach of contract” The Playa Larga (vessel) was owned by the Cuban
Government and controlled by Mambisa, a state trading enterprise separate and distinct from the government, but controlled by the
latter. The Marble Islands (vessel) on the other hand was owned by Blue Seas Shipping, a Liechtenstein corporation. Playa Larga
arrived at its destination in Chile, while Marble Islands was still in the seas. At that time, a coup d’etat took place and Pinochet took
over Chile. The Cuban government immediately ordered Playa to terminate the unloading of cargo and return to Cuba – w/c did so
even w/o port clearance. Playa met Marble Islands in the seas and eventually returned to Vietnam. In the course of its voyage,

25
Marble Islands’ flag and ownership was changed to Cuba. It proceeded to Vietnam where the cargo was donated to the people.
The acts were obviously in breach of contractual obligations – and possible tortuous – but the question is whether they
may be considered as acts of state for the purpose of invoking state immunity. The restrictive theory was applied in this
case.

As to Playa Larga, the action against Cuba may proceed. All its acts were committed not in a sovereign capacity but as
proprietor or owner of the ship. If immunity were to be granted everytime the commercial decision was tainted by political
considerations, the restrictive theory would almost cease to have effect. It is not just the purpose or motive of the act that
serves at the basis; the act must “of its own” be a governmental act to merit immunity.

As to the Marble Islands, immunity operates. There was no purely commercial obligation involved; the vessel never
entered the trading area (remained at sea) and never entered into commercial relations. The actions of Cuba regarding the
course of the ship ad the disposition of its cargo remained in their nature purely governmental. The decision regarding the Marble
Islands was subject to dissents.

TRENDTEX TRADING v. CENTRAL BANK OF NIGERIA – “cement shipment / refusal to pay / commercial” The Central Bank of
Nigeria opened a Letter of Credit in favor of Trendtex for the purpose of purchasing cement. The cement was shipped, but the
Nigerian Bank, for whatever reason, refused to pay – invoking state immunity and that the cement was to be used for barracks for
its army. The restrictive theory was applied and was deemed incorporated into the laws of England (the court trying the
case) and was accepted in the European Community. Applying the said rule, the Nigerian Bank should be held liable. If a
government department ventures into the marketplace for the purpose of engaging in commercial transactions, it must
abide by the rules of the market.

Besides, Trendtex is not suing on the contract but on the letter of credit – a straightforward commercial transaction,
issued by a London Bank in the ordinary course of business. The same rule applies to mere alter egos of the government – as
in this case. To determine if the organization or entity (even though it is separate) is but an alter ego, the functions or control of the
organization must be examined. There is no immunity for commercial transactions even for government departments. The
monies standing in the books of Midland Bank in the name of Nigeria are thus not immune from seizure based on the
aforementioned grounds.

Separate Opinions (Justices Stephenson & Shaw)


There is not enough evidence to prove that the Nigerian CB is an alter ego of the Nigerian Government. Nonetheless, immunity will
not shield it from liability. The new restrictive rule is in consonant w/ basic justice. The law merchant required that letters of
credit must be honored. No civilized country has yet expressed consent to it should be presumed to repudiate it. Too
strict adherence to the absolute rule based on a perverse notion of sovereign dignity will in fact only disserve
international comity rather than promote the same.

DIPLOMATIC & CONSULAR IMMUNITY


What are the remedies of the aggrieved individual?

1. Sue in the home state of the diplomat


2. Waiver by the state of nationality of the diplomat
3. Declare the diplomat a persona non grata

US DIPLOMATIC & CONSULAR STAFF IN TEHERAN – “invasion of embassy / no action of receiving state”
The US Embassy in Teheran, Iran was attacked by militants for a period of some 3 hours. The documents ad archives were
seized and opened. Diplomatic and consular officials were held hostage. There was no police or military support by the Iranian
Government. True that there is not enough evidence to support the allegation that the Iranian Government was directly
responsible for the attack; but that doesn’t mean that Iran is free from liability. It was obliged under IL to take appropriate
steps to ensure the protection of the US Embassy, its premises, its staff, archives, and members against intrusions or
assaults upon its dignity. The lack of appropriate action constituted a serious (and continuing) violation of its obligations
under the Conventions on Diplomatic and Consular relations.

Ayatollah Khomeini even asserted that the US Embassy deserved the attack upon it for being a center for espionage, and refused
to take measures for the release of the hostages. The approval given by the Iranian Government to the perpetuation of the
violations translated the said offenses into “acts of state.” The authors of the invasion became agents of the Iranian
Government for the said purpose. The operation by the US of sending troops thereto, however, undermined the respect for the
judicial process; but nonetheless, this does not affect the decision of this court. Iran is therefore under obligation to terminate
the detentions and ensure that the said officials are safe and placed in the custody of the protecting power, as well as to
make reparations for the said violations.

CANADIAN DIPLOMATIC & CONSULAR IMMUNITIES STATUTE – “salient rules only” If it appears to the Secretary of State for
External Affairs that the Canadian diplomatic or consular post enjoys lesser rights than those conferred by Canadian Law to the
post of that country, then he may withdraw some or all of the privileges and immunities conferred to their post in Canada. The
same privileges may also be restored. If there is question as to a person’s status or entitlement to the said privileges, a
certificate from the Secretary shall constitute conclusive proof of the facts so stated.

RE: REGINA & PALCIOS – “Nicaraguan diplomat / temporary departure / no loss of immunity” A member of the Nicaraguan
diplomatic staff was charged for possession of drugs as well as prohibited weapons (2 revolvers and a mace), as well as careless

26
storage of ammunition. He left the country (Canada) temporarily for a trip to the US. When he returned, he was arrested and
charged therefor. The question is: does he lose his immunity when he temporarily leaves the host state? No. True that diplomatic
immunity ceases from the moment a diplomat leaves the country, or after the expiry of a reasonable period for him to do
so after the termination of his functions. This allows him to wind up his affairs w/o being “pounced on” by the authorities of the
host state. However, when the Vienna Convention on Diplomatic Relations makes use of the words “leaves the country” it
should be understood to mean permanently, not temporarily. It would require the clearest possible language in the Convention
to diminish the rights of diplomats. That being the case, the diplomat’s visit to the US could not have deprived him of his immunity.

THE DIPLOMATIC BAG – The Nigerian Ministry of External Affairs informed the US Embassy that it will be carefully searching goods
or persons w/o distinction entering Nigeria for the purpose of combating the importation of Nigerian Currency. No packages or
articles are immune. The US Embassy respectfully sent notice of its objection thereto, asserting the following grounds. IL prohibits
interference w/ official correspondence and diplomatic pouches, w/c shall be inviolable. In fact the receiving state must
protect and permit the free communication on the part of the mission. Diplomatic bags cannot be opened unless there is
a serious reason to believe that they contain things other than correspondence – and only w/ the consent of the sending
state; otherwise it shall be sent back to the place of origin. But the receiving state has no carte blanche authority to open
the same.

MINUSCHER v. CA – “US Drug Agent / attaché / private capacity / unauthorized acts” Scalzo, an agent of the US Drug
Enforcement Agency, participated in a much-publicized buy-bust operation, in coordination w/ local authorities, against Minuscher
(Iranian) who alleges that he was detained in Camp Crame for 3 days w/o food and water and that over the course of the buy-bust his
personal effects and properties (such as cash, carpets, and appliances) were stolen. Minuscher filed a case for damages against
Scalzo, among others. Scalzo alleges that he is clothed w/ diplomatic immunity, belatedly presenting a Diplomatic Note and certain
certifications from the DFA. He also alleges that he is an Assistant Attaché of the US Diplomatic Mission.

Foremost, attachés that assist the mission and conduct studies for the information of their sending states do not enjoy the
same immunities as diplomats. Even consuls do not enjoy the same degree of immunity. The Diplomatic Note belatedly presented
was also of doubtful authenticity. Also, unauthorized acts of government officials are not acts of state – hence diplomatic
immunity due to equality of states does not arise. The suit would be against the official who committed unconstitutional acts
and violations of rights in his personal capacity and will not constitute a suit against the state. Immunity cannot be used as an
instrument to perpetrate injustice.

However, despite the foregoing, Scalzo must be exonerated. As agent of the US Drug Enforcement Agency, he acted w/in the
directives of the sending state in conducting surveillance and in participating in the buy-bust; more so, the operation has the
imprimatur of the local authorities. He is an agent of the said US agency allowed by the Phil. Government to conduct such activities
here; hence he must be clothed w/ immunity.

HOLY SEE v. ROSAIRO – “doctrine only” The Holy See enjoys immunity. The land subject to the controversy in
this case was bought for the site of the Apostolic Nunciature.

INTERNATIONAL ORGANIZATIONS

 The Asian Development Bank enjoys immunity – in this case from an illegal dismissal suit (DFA vs. NLRC)

 The World Health Organization also enjoys immunity – hence an suit for damages against its revolving fund is barred
(Lasco vs. UN)

 Petitions for certification election (labor unions) cannot lie against organizations enjoying immunity (ICMC vs.
Calleja)

 A criminal case for slander against an employee of the Asian Development Bank may prosper because it was not
done in the exercise of official functions (Liang vs. People)

AREAS NOT SUBJECT TO THE JURISDICTION OF INDIVIDUAL STATES


Allowable acts of states in the high seas:

 navigation
 over-flight
 fishing
 research
 laying of submarine cables and pipelines
 construction of artificial islands

Jurisdiction in matters of collision or incidents of navigation (salient rules)

 in case of collisions in the high seas, no penal or disciplinary proceedings can be instituted against the master of a vessel
except before the (1) flag state, or (2) the state of w/c he is a national
 only the state that issued the license or certificate of competence to the master of the vessel may withdraw the same
 no arrest or detention of the sip or vessel may be ordered by the authorities except that of the flag state

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Piracy

 illegal act of violence or detention or any act of depredation committed for private ends by the crew or the passengers of a
private ship or private aircraft directed:

o on the high seas against another ship or aircraft, or against persons or property on board such ship or aircraft
o against any ship, aircraft, persons, or property in a place outside the jurisdiction of any state

 any act of voluntary participation in the operation of the ship or aircraft w/ knowledge of such fact that it is a pirate-ship or
aircraft

 inciting or intentionally facilitating the acts described above

IN RE: PIRACY JURE GENTIUM – “attempted piracy / hostis humani generis” Some Chinese nationals cruising in Chinese junks
attempted to rob another Chinese Vessel. They pursued and attacked the same, but they were apprehended due to the
intervention of the steamships Hang Sang and Sui Chow. They wee taken to Hong Kong and tried for piracy. They raise that issue
whether attempted piracy is equally jure gentium and whether they can be convicted eve though no robbery took place. Actual
robbery is not an element of piracy; and an attempted or frustrated piracy is equally jure gentium. Even though the act
was committed beyond the territorial jurisdiction of HK, the pirates may nonetheless be tries therein – as they are hostis
humani generis, and beyond the protection of any state.

The Deep Sea Bed (Convention on the Law of the Sea)


 common heritage of mankind
 open for peaceful exploitation for he benefit of all
 an International Regime is created for the purpose of applying to the area the appropriate international machinery
(International Seabed Authority) – and all states are ipso facto members thereof
 cooperation among states for the preservation and protection of the resources
 rights of coastal states w/ regard to prevention of dangers to its coastline shall be subject to the International Regime
(International Seabed Authority) established
 The Authority shall have a Assembly (one country, one vote), Council, and Secretariat
 All matters of substance are to be decided by 2/3 vote
 Assembly may render advisory opinions

ANALYSIS OF DEEP SEABED MINING PROVISIONS (LAY ARTICLE) – The Reagan Administration has refused to be signatory to
the Law of the Sea, especially w/ regard to the mining provisions, due to the following reasons:

 There are provisions w/ are counterproductive to the free market forces – such as limitations upon production of mines; such
limitations are allegedly counterproductive to the development of the deep seabed resources

 The United States can be outvoted due to the one country one vote system in the Assembly; thus it cannot amply protect its
interests; the US is also not assured a seat in the Council – the executive arm of the Authority. Thus the developed nations
are outnumbered by the developing countries in voting rights; and amendments to the Convention can be done even in spite
of US objection

 The stipulations regarding mandatory transfer of technology are unacceptable to the US, w/c in fact protects technological
innovations through patents and other devices; it will also allow other countries (especially national liberation movements) to
utilize US technology w/o any payment therefore

Outer Space
 not subject to national appropriation, open to scientific exploration
 no nuclear weapons allowed to be placed on orbit
 astronauts are “envoys of mankind” and party sates are obliged to render assistance in case of emergency landing
 there is national responsibility for national activities in outer space; state parties must require authorization for non-
governmental activities
 jurisdiction over the space vessels retained by the flag state
 there is absolute liability for damage caused by space objects

LEGAL STATUS OF GEOSTATIONARY ORBIT & OUTERSPACE – There are 2 opposing views regarding the demarcation of outer
space. The functionalist school of though advocates that there is no need to establish the boundary as of the moment, while the
spatialist school of thought stresses the need for the demarcation between outers pace and the air space because the 2 areas are
governed by completely different regimes. There has been a growing trend for the latter school of thought. There has however
been no consensus as to the height of the demarcation. There is little doubt that the geostationary orbit is already part of
outer space; but it has a special legal status. It is a so-called “privileged portion” of space. It is open to free use and
exploration by all states and is not subject to appropriation. Insofar as the law of outer space are concerned, it is however
fallacy to equate the same w/ the high seas by calling it res communes or res nullius. They are two completely different things
governed by separate rules.

- Responsibility of States -

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Any internationally wrongful act of a state establishes international responsibility. This is justified by the existence of an
international legal order and the legal nature of the obligations it imposes upon its subjects. It is highly debatable, however,
whether states can be held criminally liable before IL.

State responsibility is concerned primarily with: (1) the consequences of illegal acts, and (2) payment of compensation.
Internationally wrongful acts or omissions include:

1. international delicts
2. international crimes – such as genocide, slavery, apartheid, mass pollution, aggression

Objective Responsibility – there is strict liability; good faith or bad faith is immaterial

Subjective Responsibility – based on the fault theory; but the acts are attributed not to the persons or agencies responsible, but
to the state itself

Requisites for Internationally Wrongful Acts:

1. The act or omission is attributable to the state under IL


2. It constitutes a breach of an international obligation

Examples: breach of treaty, injury to territory, property, or diplomats of a state, injury to persons or property of aliens.

Reparations required: (1) restitution, and (2) damages.

Categories of Internationally Wrongful Act:

1. Direct – the injury is against another state or any of its organs or agents
2. Indirect – against the persons or property of a national of another state

Internationally Wrongful Acts may be committed by any of the branches of government:

1. Executive – failure to take appropriate steps to punish culprits who are police officers
2. Legislative – failure to incorporate certain rules required under IL
3. Judicial – errors in application of treaties or fails or refuses to give effect to a treaty

Ultra Vires Acts – these are considered acts of the state even if done in excess of authority, so long as there is proof of an apparent
authority or the act was done in the general scope of authority – such as when police officers commit revenge but acted in the role of
an officer.

Abuse of Rights – these could give rise t liability for compensation for the consequences of such lawful acts of the state organs, such
as for damages sustained by board merchants due to exercise of warships, when the circumstances would warrant.

CASES FROM THE BERNAS BOOK

THE CLAIRE CLAIM – “Mexican soldiers / objective test / apparent authority” Mexican soldiers demanded money from a French
National and thereafter killed him. Is Mexico responsible? Yes. True that states are not held responsible for acts of officials
beyond the scope of their competence – otherwise international relations will become too complicated and strained. The
objective test can be applied – in w/c case it suffices is the officer acts at least to all appearances as a competent official,
and used powers and means placed in his disposition in his official capacity. Such circumstances attend in this case. The
perpetrators conducted themselves as soldiers of Mexico and even took the victim to the barracks. The ultimate test is the
amount of state control w/c ought to have been exercised under the circumstances.

YOUMANS CASE – “disobedient soldiers / personal acts” Soldiers were sent to protect aliens who ended up participating in the
attack resulting to the killing of the aliens. Soldiers inflicting personal injuries or committing wanton destruction or looting,
or who act in disobedience of some rules laid down by superior authority would not entail the responsibility of the state
but would constitute personal acts of the soldiers.

CORFU CHANNEL CASE – “mines / did not inform of their presence / grave omission” British destroyers struck mines along the
Corfu Strait, in Albania causing several deaths and great damage to the ships. Previously, the ships were even fired at. The mines
were found to have been recently laid. Nonetheless, there is not enough evidence to suggest that it was Albania itself that laid the
mines; but for sure given the geography, the mines could not have been placed there w/o Albania knowing. Is Albania liable? Yes.
It committed grave omissions when it intentionally did not inform the ships of the presence of the mines and the danger
that they were exposed to, a simple act that could have saved great disaster. This omission should entail international
responsibility.

MILITARY ACTIVITIES IN NICARAGUA – “contra force / support / no effective control / not in behalf of US” The US authorized
an agency to lay mines in Nicaraguan ports and employed locales w/c were paid and who acted under the employ and supervision
of the US. No US troops participated therein, but the US planned and supported the action. The mines caused damage to sea
traffic. In this case, the imputability to the US cannot be questioned.

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According to Nicaragua, the US also conceived and organized the “contra force.” It conducted operations against the Nicaraguan
government using plans and strategies of US advisers and collaborated w/ them, using the logistics, communications, technology,
and support of the US. However, there is not enough evidence to suggest that the contra force was totally dependent to US
aid. There is not enough evidence to suggest that the US had such control over the contra force as to consider them to
have acted in behalf of the US. Thus the contras are liable for their own actions, but not he US in the absence of effective control
over their operations.

US v. IRAN (TEHERAN EMBASSY CASE) – “embassy siege / approval / militants became agents of state” The Iranian state was
under obligation to protect the premises of the mission, and breached the same in failing to protect and secure the premises and
for even tolerating the actions of the student militants. Instead, expressions of approval for the attacks were made by Ayatollah and
Iranian officers. The Iranian government gave its consent to the attack upon the diplomatic premises, violation of its
dignity, and the detention of diplomats; thus the perpetrators in effect became “agents” of the Iranian Government. Iran is
therefore internationally responsible.

HOME MISSIONARY SOCIETY CLAIM – “hut tax / legal act / barbarous reaction of natives / not liable” Britain imposed a “hut tax”
upon the natives of its Protectorate Sierra Leone, w/c enraged the natives who then revolted. Over the course of the revolt, the
religious mission of US nationality was attacked, and its members killed. US claims that Britain should be liable to it for the deaths
of its nationals. Britain is not liable. The imposition of the hut tax was legitimate and w/in the rights and prerogatives as an
exercise of its sovereignty. Britain acted in good faith. It cannot be held liable for the barbarous conduct of the natives.

SHORT v. IRAN – “revolutionary government / no proof of wrongful acts as cause for injury” Short was an American working in
Iran. He was ordered to be sent home by the US when the Islamic Revolutionary Government took over. Now he claims that the
successor government should be held liable for the acts of the revolutionary movement w/c established it – and that he was
expelled from the country contrary to IL. He relies on the anti-American statements. Iran is not liable. Short failed to prove that
his departure from Iran was due to the wrongful act of its government.

CHOZROW FACTORY CASE – “prohibited expropriation / restitution / substituted by payment” Poland expropriated the Chozrow
factory contrary to the Geneva Convention prohibiting such. It in fact amounted to a seizure of property w/c is void even in spite of
compensation. The object of the Geneva Convention is, after all, is to promote the economic life of Upper Silesia. That being the case,
restitution is in order. Considering that the parties are agreed that restoration of the status quo is not impossible and
unwanted, the value thereof must be substituted by payment plus compensation loss sustained as a result of the seizure.

Private Citizens – their acts do not generally entail state responsibility, But in case of riots or mob violence, the host state is duty
bound to take reasonable precautionary measures to protect foreign private or public property.

Rebels – it is established as the act of the state once the new government is established. Belligerent groups may be held
responsible for their acts during armed conflict. There is a duty on the part of the state to prevent and suppress the insurrection w/
due diligence; however, a higher standard of protection is required for diplomats and consuls.

US v. MEXICO – “irregular court proceedings / damages” Chattin, an American, was working in a Mexico Railroad Company. He
was arrested. There were no proper investigations, no appropriate confrontation w/ the witnesses, he was not properly informed of
the charges, there were undue delays in the proceedings, and the trial was a mere formality. He was able to escape and proceed
to the US when the doors of the jail were flung open during a revolution. Now he claims damages from Mexico. This is a case
direct government responsibility. A grave injustice has been committed by the Mexico judiciary. The proceedings were
obviously irregular and there was a complete absence of seriousness on the part of the court. That being the case, it
would be proper to allow damages in the sum of $5,000.

Note: But simple errors of judgment w/c do not result to manifest injustice do not constitute a denial of justice as to warrant the
above grant of damages. What can bring about state responsibility are unwarranted delays or obstruction of access to courts,
gross deficiency in the administration of remedies, failure to provide those guarantees generally accepted as indispensable to the
proper administration of justice, or manifestly unjust judgments.

INTERNATIONAL PROTECTION OF HUMAN RIGHTS


UNIVERSAL DECLARATION AT 35 – This article came to the defense of the UDHR amidst its criticisms. The statements are
summarized as follows:
 The contributions by the Third World are by no means negligible; countries like Cuba and Chile and the Philippines among
many others are its main proponents

 It is not purely western in philosophy; the various rights arising therefrom have their counterparts and are known by all human
communities and are major part of most of the world’s religious and cultural systems; in the implementation of rights due
regard is had for the cultures of each society and can be done through local bodies

 It equally protects collective or peoples’ rights, not only individual rights; its language is sufficiently flexible; there is even a
procedure under ECOSOC Res. 1503 for gross violations on human rights other than on individual cases

 It equally prioritizes economic, social, and cultural rights, albeit the development of the protection of such rights came much
later; the UNCTAD was established w/ the end in view of establishing a new economic order

 The principles enshrined in the UDHR have formed part of international customary law

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NOTES:
 The UDHR is accepted by some scholars to for m part of customary law

 The Philippines is not signatory to the ICCPR Optional Protocol 2 w/c abolished death penalty

 The Philippines ratified the International Covenant on Civil and Political Rights, Convention on Elimination of Racial
Discrimination, Convention on Discrimination against Women, Convention against Torture, Convention on the Rights of the
Child and the Optional Protocol on Sale, Prostitution, and Pornography and the Protocol on Children in Situations of Armed
Conflict, as well as the Migrant Workers Convention.

 International Minimum Standard and National Treatment – an alien is treated as a national of the host state in all respects
as to property rights and as to his person to w/c international human rights law principles will apply. This protects against
discriminatory acts of the host state and applies to certain areas of activity such as investment and trade matters.

SOUTHWEST AFRICA CASES (TANAKA DISSENT) – “apartheid” Is the policy of apartheid employed by South Africa in
administering its mandate violative of the basic rights against discrimination? Yes. Apartheid discriminates based on race,
color, or tribe. It violates the norms of non-discrimination. True that absolute equality is not required, but merely equality
among equals. However, the distinction must be reasonable and existing. Race or color is not a justifiable distinction.
Thus, apartheid is illegal regardless of the purpose – be it bona fide or mala fide. Apartheid even imposes “ceilings”
disallowing natives from employment in managerial or higher positions, and even discriminates w/ regard to use of public facilities.
These restrictions are unreasonable.

INTER-AMERICAN COURT OF HUMAN RIGHTS – Salient Rules:


 It is a permanent tribunal w/ permanent judges at its employ (7 judges)
 The power to decide cases is conditioned upon acceptance of the jurisdiction of the court; being mere signatory to the
convention is insufficient
 Once a state signs the convention, it opens itself to petitions filed by legally recognized groups of persons or entities
 Amicable settlements are favored
 By ratifying the convention, states are duty bound to comply w/ the court’s decisions
 The court may award damages and enter declaratory judgment
 It may grant extraordinary remedy of injunction in cases pending before it or before theCommission prior to submission to the
court’s jurisdiction
 There is however no formal procedure against a state that defies an order of the court
 It may issue advisory opinions

MARCOS v. MAGLAPUS – “right to return to one’s country / separate right / public interest” Pres. Marcos seeks to return to the
Philippines after 3 years of involuntary exile. His return was barred by Pres. Aquino. He invokes his right to travel, and his
internationally recognized right to return to his own country. Pres. Aquino did not act arbitrarily in barring the return. The right
to return to one’s own country is not one of the rights guaranteed under the Bill of Rights. It is not embraced by the
“liberty of abode” or the “right to travel.” Even the UDHR and the CCPR treat such right separately. Nonetheless, it my
form part of the law of the land by incorporation. But like all rights it is not absolute and must be adjusted to give way to
the public interest. Pres. Aquino acted w/in her prerogatives in barring his return. It was required by the public interest given the
volatile situation of the time.

INTERNATIONAL SCHOOL ALLIANCE v. QUISUMBING – “equal pay / envious local hires” International school pays its foreign-
hired professors 25% more salary than the local hires, plus other benefits. The local hires allege discrimination. Discriminatory?
Yes. IL is replete w/ conventions for the protection against discrimination, from the UDHR, Covenant on Economic, Social
and Cultural Rights, Convention against Discrimination in Education, Convention concerning Discrimination in
Employment and Occupation, etc. These are incorporated into our laws. We subscribe to the principle of “equal pay for
equal work.” Wages cannot be used as enticement if it would violate the equal pay for equal work principle. Besides, the so-called
“dislocation factor” is adequately compensated by benefits such as travel allowance, housing, etc.

TAKING OF PROPERTY: NATIONALIZATION & EXPROPRIATION


 States have permanent sovereignty over their natural resources and wealth and may freely dispose of the same. They may
expropriate foreign-owned property for a public purpose upon payment of appropriate compensation, unless the same is done
arbitrarily or w/ discrimination, or if motivated by a political purpose.

 In case of authorized exploitation and infuse of foreign capital, national and international law shall govern

 Nationalization, expropriation, and requisitioning must be based on grounds of public utility, security, or the national interest
and there must be payment of appropriate compensation as each subject state may determine, national remedies must be
exhausted in case of disputes, open to arbitration & international adjudication

 no state may be compelled to give favor for foreign investment, and may regulate the conduct of transnational corporations or
other forms of foreign investment w/o preferential treatment; said foreign investors may not interfere w/ the internal affairs of
the host state

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 the term appropriate compensation was proposed (by some third world countries – such as the Philippines) to be converted to
just compensation
 any form of coercion or aggression is abhorred

 A state may expropriate foreign-owned property for a public purpose, provided that it is not arbitrary or discriminatory or
motivated by a political purpose. In Socialist states, no compensation is due. But insofar as norm or practice is concerned, the
Bilateral Investment Treaties will provide the standard of compensation. But the host state is entitled to determine
compensation and the mode of payment w/c may be based on national legislation

 IL allows the operation of rules of private IL – such that when a claim arises between an alien and the government based on
breach of contract, the issue may be decided in accordance w/ the applicable municipal law designated by the rules of private
IL.

TEXACO OVERSEAS v. LIBYAN ARAB REPUBLIC – “internationalized contracts / sovereignty / breach”


Texaco Overseas Petroleum and California Oil were granted oil concessions by the Libyan Government. Later on, Libya
promulgated decrees “nationalizing” the all the rights and interests of the said corporations. Libya also refused to submit to
arbitration. Should Libya be held internationally responsible? Yes. In this case, Libya, in the exercise of its sovereignty,
entered into an agreement intended to be governed by the rules of IL and the general principles of law – an
“internationalized contract.” Such foreign investment agreements freely entered into must be complied w/ in good faith.
Thus, a state cannot invoke its sovereignty to disregard such commitments freely entered into. In the international law on
contracts, nationalization cannot prevail over an internationalized contract between a state and a private entity. It is, besides, not
tantamount to an alienation of sovereignty, but an exercise thereof, and imposing only a limitation thereon. Neither the concept of
sovereignty nor the nature of nationalization provides ample justification for the breach.

Note: IL allows the operation of the rules of private international law. When a claim arises based on breach of contract between
alien and government, the issue may be decided in accord w/ the applicable municipal law designated by the rules of private IL.

RESPONSIBILITY FOR ENVIRONMENTAL HARM


 there is a duty among states to cooperate regarding the protection of the environment (duh)

 there must be cooperation in the sharing of information to avoid the significant effects of environmental depletion

 in exploiting its own resources (an inherent right) a state must not produce significant harmful effects towards areas outside its
jurisdiction

TRAIL SMELTER ARBITRATION – “smelter / use of territory to the detriment of another state” The Trail Smelter in Canada
smelts lead and zinc in large quantities; its sulfur dioxide emissions caused damage to the State of Washington. They constituted a
Tribunal to decide liability. Is Canada liable? Yes. A state owes at all times a duty to protect other states against injurious
acts by individuals from w/in its jurisdiction. No state has the right to use or permit the use of its territory in such a
manner as to cause damage or injury to another state – by fumes or by any other harmful way. Canada is this responsible
in IL for the conduct of the Trail Smelter. The Smelter shall be required to refrain from further detrimental acts; a regime is to be
set up for the purpose of facilitating the operations of the smelter.

CORFU CHANNEL CASE – “mines / knowingly permitted / did not inform other states of danger” A state has the obligation in IL
not to knowingly use or knowingly allow the use of its territory to the detriment of another state. Albania as thus under obligation to
inform UK of the presence of the mines in the Corfu Channel w/c posed great danger to its vessels.

Note: The proposal to incorporate as a duty of a state to notify other states of activities that may have extraterritorial effect was
rejected at Stockholm in the formulation of the Stockholm Principles.

RIO DECLARATION ON ENVIRONMENT & DEVELOPMENT – trade policy measures should not be used as a means for arbitrary or
unjustifiable discrimination or a disguised restriction on international trade; there is also a duty to notify other states regarding
disasters or calamities. Member states must also promulgate laws for the compensation of victims of pollution or environment
related violations. A state’s right to exploit its resources is affirmed provided there is a corresponding duty not to damage the
environment – w/ due regard to the “special situation of developing countries.”

Precautionary Principle – a state must abstain from conduct that carries w/ it a significant risk of harm. It has companion
elements – such as the duty of prior information and consultation. According to some authors, this has acquired the status of
customary law.

FREEDOM OF THE SEAS (LEGAULT ARTICLE) – “random observations” The high seas has been primarily governed by the
principle of liaises faire, but this rule will have to give way to development of IL due to the rapid development of technology and the
continuing pollution of the seas. Some observations are:
 the principle of freedom of the high seas is no longer adequate in light of the problems spawned by modern technology

 there have been various conventions on the protection of the high seas, but they are largely inadequate because they are
generally binding only upon contracting states, they do not make compulsory the adoption of anti-pollution techniques, and
they are generally “liability-oriented” and not exactly preventive in nature, further there is no clear means of obtaining
compensation for damages

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 the issue of pollution of the high seas has been primarily an issue among the coastal states who may be affected thereby;
modern practice has been to the end that coastal states are allowed to take certain preventive measures whenever its coastal
interests are threatened by pollution

 what is needed is a legal framework which would provide effective preventive measures and w/c would not give the
perpetrators the option to be accountable or not – it must be remembered that before a state can be subject to the jurisdiction
of the international tribunals, it must first give its consent

 there have been significant developments in customary law – such as through the Corfu Channel Case as well as the Trail
Smelter Case – that would aid in the furtherance of efforts to preserve the environment

INTERNATIONAL CLAIMS
Every state has the right to protect its national; but the state should establish its legal interest by
proving the “nationality” of the claim.

Forms of Protection:
1. Protest
2. Enquiry
3. Negotiation
4. Submission to arbitral or tribunal

The Clavo Clause – it is an attempt to limit the power of a state to give diplomatic protection to its nationals. Such a clause is
generally void under IL, because such right is not for an individual to waive. It is sovereign prerogative w/c an individual has no
power to waive.

NORTH AMERICAN DREDGING CO. CASE – “Clavo clause / mere exhaustion of local remedies” North American Dredging
contracted w/ the Mexican Government to perform certain services in Mexico. The contract contained a “Clavo Clause” where the
corporation agreed to have no other rights or means of enforcement than those conferred upon Mexicans and that under no
conditions shall the intervention of foreign diplomatic agents be permitted in any matter relating to the contract. The corporation
brought aclaim through the US government for a sum of some $ 230,000. Mexico is now invoking the Clavo Clause.Is the
corporation bound by the clause? In this case yes. But each case involving a Clavo Clause must be decided on its own
merits. If it offends no principle of IL, then it must be upheld as a valid contractual stipulation. If all the clause stipulates
is that he claimant must exhaust all local remedies out of due respect to the government of the host state, then there is no
violation. Only in case of manifest injustice or if local remedies are unavailing is he allowed to seek redress from his own
government.

But such undertaking cannot deprive the government of his nation from of its right of applying international remedies.
There must be a balance between upholding the host state’s jurisdiction and the national’s state’s right under IL. Neither
can the clause deprive the alien of his citizenship or other rights pertaining thereto. In this case, the corporation disregarded all
local remedies by immediately bringing his claim through his national government. That being the case, his claim must be
dismissed.

INTERNATIONAL FISHERIES CASE (NIELSEN DISSENT) – This dissent is w/ reference to the Dredging Case. The Commission in
deciding the case ignored Article V of the Convention between the US and Mexico to the effect that no claim shall be dismissed
due to non-exhaustion of local remedies.” No action by a private individual can supplant a treaty or principle of IL. No nation
can by contract w/ a private person relieve itself of its obligations under IL or nullify the rights of another state. Only by
means of expatriation can a person by his own act forfeit his government’s right to protect him. The right of his
government to extend protection is guaranteed by IL.

THE TATTLER CASE – “right of national was waived / not the right of the state” The schooner “Tattler” was seized by Canadian
authorities for violation of fishing laws. It was detained and then released subject to the condition that “they relieve His Majesty
against any claims made or to be made on account if such detention.” Payment was made under protest. Does the renunciation
bind the US? It must be noted that only claim that the US is supporting is that of its national; thus the Tribunal can only
rely on the grounds open to the national. That being the case, the case should be dismissed.

DD: From what I see, only the right of the national was deemed validly waived, but not the right of the government to protect its
national – w/c cannot be impaired by such stipulation.

PANEVEZYS – SALDUTISKIS RAILWAY CASE – “railways / nationality at time of injury / local remedies”
The First Company was a railway company in Russia. When the Bolshevist movement took over the government, it sequestered
private property throughout the country including the First Company Railway. The Lithuanian Government (newly independent
state) took over the Panevezys railway formerly owned by First Company. Then by virtue of the Treaty of Tartu, Russia
renounced certain properties and enterprises to Estonia – and this included First Company, w/c was later renamed Esimene. Now
the Board of Esimene brought a claim for compensation against the Lithuanian government for the taking of the Panevezys
Railway. The Lithuanian Government through the council of state refused to compensate. Now Estonia brings a claim on behalf
of Esimene. Can the case prosper?

First Estonia must prove that at the time of the alleged injury, Esimene was possessed of Estonian nationality. For this
purpose, the Treaty of Tartu would have to be examined. Second, Lithuania avers that Estonia failed to exhaust local remedies
afforded under municipal law. This contention is sustained. True that there is no need for resort to municipal courts if the

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courts have no jurisdiction or if the exercise would be futile. Whether or not the local courts have jurisdiction is
addressed to the sound discretion of the local tribunals. Besides, property rights are generally governed by municipal laws. In
this case, Estonia has not even commenced any action in the municipal courts; that being the case, the case should be
dismissed.

HE NOTTEBOHM CASE – “nationality / conformity with factual situation” Nottebohm was a German national residing in
Guatemala. He left the country and proceeded to Liechtenstein for the purpose of acquiring the latter’s nationality through
naturalization. He was granted naturalization despite the fact that he has stayed there for a short period of time only. Now he
returned to Guatemala and brought a claim against the Guatemalan Government through the intervention of Liechtenstein.
Guatemala objected and refused to recognize the right of Liechtenstein to bring a suit in his behalf. Is the claim by Liechtenstein in
behalf of Nottebohm admissible? In this case no.

Preference is always given to the real and effective nationality. There must be factual ties between the person and the
state – and this may be established by several factors such as residence, family ties, the center of his interest, etc. He did
not even change his permanent residence. Guatemala, from the beginning, clearly repudiated the acquisition by Nottebohm of
the nationality of Liechtenstein. True that in IL, each state may lay down rules in conferring its citizenship; but in order to be
invoked against another state, nationality must correspond to the factual situation – such as the social fact of attachment,
or a genuine connection of existence, sentiments, and interests. These facts are completely missing.

The only reason why Nottebohm went to Liechtenstein was because Guatemala refused to admit him. His only purpose for
acquiring nationality is to substitute for his status as a national of a belligerent (Germany) that of a neutral state for the purpose of
bringing his claims. Therefore, his claim should be dismissed.

BARCELONA TRACTION CASE – “separate entity / nationality of corporation followed” Barcelona Traction was a corporation
organized under the laws of Canada where is had its principal office. Several Belgian nationals held significant shares therein.
It issued several bonds secured by trust deeds funded by its subsidiary corporations located in Spain. The Spanish government
refused to authorize transfer of foreign currency, thus disabling Barcelona from meeting its obligations. Spain thereafter declared
the corporation bankrupt and ordered the seizure of the assets of its subsidiaries in Spain – causing prejudice to the shareholders,
many of w/c were Belgian. Barcelona Traction was also later on declared bankrupt under Canadian Law. Now, Belgium brings an
action in behalf of its nationals (shareholders) claiming reparations due to the conduct of the Spanish authorities (allegedly contrary
to IL) leading to damage to its nationals.

Municipal law principles on corporate law were applied. It is the corporation, as a separate entity from its stockholders, whose
rights were violated. The interests of the shareholder may have been affected, but that doesn’t mean that they have a right to bring
the action – unless for exceptional circumstances. The nationality of the corporation is Canadian, not Belgian; as it is in
Canada that it was incorporated and maintains its principal office. It is w/ Canada that the corporation shares its “genuine
connection” even if it engaged in business in other countries. That being the case, it is Canada, not Belgium, that has the
right to bring the action – and only in behalf of the corporation.

Note: According to the commentary of Herbert Briggs, the jus standi of one state cannot arise form the mere lack of jus standi of
another state; there must exist some legal basis for an international claim beyond a mere indirect injury to economic interests.

BANCO NACIONAL DE CUBA v. PETER SABBATINO – “sugar quota / forced expropriation / act of state” The US Congress
amended the Sugar Act reducing the sugar quota for Cuba, w/c reacted negatively, alleging that it was an act of aggression and for
political purposes. Thus, it implemented Law No. 851 granting the president the power to forcibly expropriate property or
enterprises where US nationals held an interest. Compensation was a pipe dream. The president implemented the same; one
of the affected corporations was Compania Azucarrera, principally owned by Americans. The sugar it was supposed to export to
the US was forcibly expropriated. Thus, Banco Nacional, the assignee of the bills of exchange pursuant to the transaction was
refused payment by the purchaser of the sugar; now it goes before US courts, alleging that the acts of Cuba contravene IL and
bringing forth a claim against the same.

The act of state doctrine must be applied. Every sovereign state is bound to respect the acts of another done w/in its own
territory and shall not interfere w/ the same. The courts of one country are bound to abstain from interfering w/ such acts
of foreign states w/in their jurisdiction – especially if the Executive Branch refuses to act. This is demanded by the highest
considerations of comity and expediency. If IL does not demand the application of the rule, neither does it forbid its application
even if the act complained of violates IL. Offensive to the public policy of the US the expropriation may be, however, both the
national interest and progress and the rule of law among nations are best served by maintaining intact the act of state
doctrine.

Dissent of Justice White:


The act of state doctrine does not require the courts to decide cases in utter violation of IL and to the prejudice of the rights of the
litigants. Deference to the doctrine was not meant to be absolute. The rule may be applied if there is no clear violation of the rules
of IL. But in this case, there was a clear and blatant violation of IL – the measure was retaliatory and discriminatory. To the
proscription against arbitrary discrimination, there is already agreement among all nations. All exercise of sovereign power must
conform to the rules of IL. Nether has the US Executive Branch requested the judiciary to defer; on the contrary, it terminated
diplomatic relations w/ Cuba. In this case, the US blindly adhered to the act of state rule and argued for the rule of non-
examination.

Note: Under the Foreign Assistance Act of the US, enacted a year after this decision (1965), Congress decreed that no court shall
decline to make a determination on the merits based on the act of state doctrine if the act of the foreign state is in patent violation

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of IL, principles of compensation, or other standards set forth therein. The US may also suspend any assistance to such
government if the latter is a beneficiary of the US and it nationalized or expropriated properties arbitrarily or repudiated valid
agreements, or imposed discriminatory taxes and other such measures.

ALFRED DUNHILL v. CUBA – “cigar deals / act of state / inapplicable to commercial transactions” Dunhill was an importer of
cigars from Cuba. The Cuban corporations w/c exported the cigars to Dunhill were expropriated by the Cuban Government. Agents
of the Cuban Government continued to ship cigars to the US to w/c Dunhill made appropriate payments. It turned out that the US
courts did not give effect to the foreign confiscations w/o compensation. As to the accounts owing at the time of the intervention of
the agents of Cuba, they were adjudged to be lawfully owed to the former importers. Now the formerimporters and rightful
payees are claiming from Dunhill the amounts mistakenly paid by the latter to Cuba, w/c had no right to claim the same and w/c
repudiates the Dunhill’s claim for reimbursement invoking the “act of state doctrine.”

The contention of Cuba is untenable. The mistaken payments gave rise to quasi-contract. The act of state rule is inapplicable in
this case and should not be extended to validate the repudiation of purely commercial obligations. They are not public
and sovereign acts or those carried out in the exercise of governmental authority. The “restrictive theory” was applied in
this case. A mere assertion of the act of state doctrine will not suffice. It has also been opined in an appendix to this case that the
Sabbatino Ruling should be reexamined.

BUTTES GAS & OIL CO. v. HAMMER – “oil dispute / backdated decree / act of state” Iran, Umm al Qaiwain (UAQ), and Sharajah
laid claim to certain portions of the Abu Musa (a portion of the Arabian Gulf). The area was oil rich. Sharajah backdated a Decree
extending to 12 miles (formerly 3 miles) from the island its territorial waters, obtaining the oil-bearing deposits therefrom. Buttes
Gas was able to obtain a concession for the exclusive exploitation of the area. Occidental and Dr. Hammer allege that Buttes
conspired w/ Sharajah and inducing the latter to backdate the decree for the purpose of defrauding Occidental (among
others), the concessionaire who allegedly discovered the deposits. Occidental’s concession was later terminated by UAQ and
is now permanently deprived of its rights to exploitation. It sues for damages against Buttes and alleges that the agreements
between the said Persian Territories delineating their interests to the disputed area are fraudulent, unlawful, and void.

The act of state doctrine applies in this case. The (English) courts will not adjudicate upon the transactions among
foreign states – and this is a settled principle of law. Further, to resolve this case would require the court to make a
pronouncement as to the boundary agreements (territorial water limits, continental shelf allocations) between states – w/c
the English court cannot do, especially in the context of a dispute between private parties. Occidental may have been
deprived of its rights, but this case involves actions of sovereign states. For reasons above stated, the action of Occidental must
fail as it raises non-justiciable issues.

- Resolution of Disputes –

“According to Grotius, “not all wars are repugnant to the law… and the law of nations allows states to repel violence and
injury, in order to protect our persons.”

Aggression – the use of armed force by a state against the territorial integrity, sovereignty, or political independence of another
state, or in any other manner inconsistent w/ the Charter of the UN; the use of armed force in contravention of the Charter is prima
facie evidence of aggression to w/c no consideration of whatever nature may serve as justification.

WHO KILLED ARTICLE 2 [4] – (THOMAS FRANK ARTICLE) – Article 2[4] of the Charter of the UN bound all member states to save
succeeding generations from the scourge of war and to refrain from the use of force against the territorial integrity or political
independence of any state, as well as to settlement of disputes through peaceful means. However, since then, the changing
circumstances have to a certain extent rendered nugatory the guarantee of Art. 2[4] for the following reasons:

 The Security Council (SC) can only act w/ the assent of 9 members and all of the Big Five – and unanimity between the Big 5
has always been more of an illusion; in only 1 instance has there truly been collective action through the SC after some 100
smaller international disputes

 Articles 51-53 allow states to use force as a means of self-defense in case of armed attack, however, each state has always
rendered a different interpretation of when the right to self-defense accrues (to w/c no universal standard exists), and this is
complicated by the advancements in technology and warfare

 Small-scale Warfare – here a state promotes or supports certain national liberation movements w/in the territory of another
state aimed at overthrowing or injuring the government; this has fallen short of the definition of “aggression” under the Charter
w/c has not quite contemplated the new situation and speaks of only the right to defend against an armed attack; press
campaign have also been used as a new tool of “indirect aggression.” Further there have been instances where the US and
the USSR have funded opposing forces w/in the boundaries of another country, allowing the former to engage in wars using
other states as pawns

 Potential Nuclear Warfare – defensive war contemplated under the Charter is only allowed in case of armed attack, but
nuclear weapons are capable of paralyzing a state completely w/ one stroke; there is no satisfactory alternative yet, and to
allow a state to act when it feels “threatened” is too subjective

 Regional Enforcement – This has taken the place of enforcement by the UN for the most part, where regional groupings are
created for the purpose of maintaining peace as well as collective defense. They have succeeded in removing themselves

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from the jurisdiction of the UN and may commence armed attack even w/o awaiting SC approval. Further, there is no accepted
definition of a regional organization. They have also become so dominated by the super-powers, thus giving them regional
supremacy, where the such organizations are transformed into instruments to facilitate violence; members states are forced to
conform, and UN jurisdiction is restricted to mere peripheral jurisdiction

 So long as there are nations, the pursuit of national interest will continue, and where this runs counter to
international norms, the latter almost always gives way – especially if the superpowers are involved

LEGALITY OF PRO-DEMOCRATIC INVASION (SCHACHTER ARTICLE) – Professor Reisman argues that “selfdetermination” is the
paramount goal of IL and Article 2[4] is the means by w/c this is to be carried out. In this light, as a “re-interpretation of Article 2[4],
he argues that it is justified for a foreign state to forcefully overthrow a despotic government of another state so as to allow the
people thereof to freely pursue their self-determination. He argues that not all forms of unilateral recourse to force should be
condemned. Mere verbal condemnations by the UN of these regimes have proven insufficient. This argument must be rejected.
No state has ever invoked such a principle to justify aggression – not even the aggressors themselves. Any invasion, no
matter how brief, violates the essence of territorial integrity and political independence. It would give the powerful states
unlimited right to overthrow governments allegedly unresponsive to the popular will of the people. It is too prone to
abuse; and will cause ideological differences to only give rise to armed confrontations. This should definitely not become
a norm of law.

RIGHT OF STATES TO USE ARMED FORCE (SCHACHTER ARTICLE) – The Charter of the UN outlaws war except for: (1) self-
defense, and (2) armed action authorized by the Security Council. There have been opinions to the effect that these rules are
however reduced to mere rhetoric in light of world events. The author has made the following observations:

 Does IL lay down rules sufficiently clear or are they vague and thus permit states to interpret them as they suit? True that the
wordings of Art. 2[4] are ambiguous. The words “force,” threat of force,” and “intervention” have been subject to various
interpretations – so have the notions of “territorial integrity” or “political independence.”

 There is an issue as to the use of force for the purpose of recovering territory that a state claims to be rightfully its
own. It is argued that it amounts to self-defense. The recovery of territory unlawfully taken or occupied still does not justify the
use of force; this must be pursued through peaceful means. To make such an exception would render nugatory the guarantee
of Art. 2 [4]. No state has in fact clearly supported such an interpretation.

 Humanitarian intervention in case of wide-scale atrocities – this is only allowed if peaceful measures are unavailable, lest
it e prone to abuse. But when it comes to protecting nationals of a state in the territory of another, the sentiment is otherwise. It
is allowed provided there is (1) an imminent threat to the nationals, (2) failure or inability on the part of the territorial sovereign
to protect them, and (3) the measures are strictly confined to the purpose of rescuing them. A state whose nationals are in
peril must be given some latitude, so long as the measures undertaken are proportionate. States have also justified such
intervention by using the principle of “self-defense.”

 Resort to self-defense, especially considering the advancements in warfare, must be confined to cases in w/c the
necessity of self defense of instant, overwhelming, and leaving no choice of means or moment for deliberation. The
attack need not have actually taken place; but the attack must be imminent.

 A state may use means to repel an actual attach – but the means of self-defense must be proportionate. Resort to
peaceful means may be dispensed with but only if they prove to be futile and the danger sought to be repelled is imminent.
Defensive retaliation may sometimes be justified especially where a series of attacks from the same source take place.

 The collective security of the UN has largely been replaced by collective defense agreements where states are
allowed to undertake certain enforcement measures even w/o approval of the Security Council. But where the use of
force is sought, SC approval is necessary; otherwise this will contravene Article 2[4].

 Foreign support in internal conflicts is a violation of the right of the people therein to decide their political destiny.
Such acts as sending troops or supplying weapons, training forces, or making their territories available for use by a party to an
internal conflict are covered by the proscription. An illegal intervention in such a case validates possible counter-intervention
so long as the same is limited to the territory where the civil war is taking place and is not disproportionate to the intervention.
In the absence of civil war, however, there is nothing to preclude governments from undertaking joint military training or other
efforts. There is also nothing wrong in assisting a legitimate government to resist a coup d’etat. Humanitarian aid is of course
allowed.

 There is nonetheless an agreement as to the substantive core of the law; even powerful states have a stake in the
stability of the world order – despite the pursuit by individual states of their selfinterests. The inadequacy if IL should not be
scorned as an element of maintaining peace.

LEGAL IMPLICATIONS OF ISRAEL’S 1982 INVASION OF LEBANON – “” The partition of the British Mandate Palestine into a
Jewish and Arab or Palestine state took place, but the Palestinians never gained control over their land. After the war between
Israel and the Arab states, the territory of Palestine came to be part of Egypt and Jordan – w/c expelled the Palestinians from their
territory. Finding itself w/o a territory and invoking its right to self-determination, the Palestinians rejected the Israel-Egypt
Agreement w/c allocated to it the West Bank and Gaza Strip, settled in Lebanon, and w/ the consent of the latter, used the territory
of Lebanon to lay claim to Israeli Territory.

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As a result, Palestine has been mounting sporadic attacks against Israel for about 35 years now. Palestine gathered a
formidable armed contingent near the Lebanon-Israel border. When Palestinians tried to assassinate the Israeli Ambassador in
Britain, Israel countered w/ a massive attack, and entered Lebanon, aimed at purging South Lebanon of the Palestinians and
driving them back to create a buffer zone and keep the Palestinians from shelling Israeli villages. The legal implications of the
attack are discussed as follows:

 State Responsibility of Lebanon – a state is mandated to prevent the use of its territory (even by private individuals) in such
a way as to cause damage to another state; in this case, to violate the territorial integrity of Israel. Lebanon even entered into
an agreement (Cairo Agreement) w/ Palestine allowing the latter to make use of its territory as base for its attacks against
Israel. It may even be argued that Palestine has been imbued w/ certain powers as to become an organ of the Lebanese
Government – thus the latter should be held directly liable.

o Vicarious Responsibility – a state is liable for its failure to punish or prevent persons acting w/in a state’s sovereignty
from committing offenses against other states. Lebanon should be considered delinquent for its failure to satisfy this
international obligation to Israel.

o Under the Fault Doctrine however, if a state is unaware of the conduct or is powerless to prevent the same, it is not
internationally responsible. It can be argued that the Lebanese Government has become so weakened and paralyzed that
it entered into the Cairo Agreement reluctantly and under pressure from many Arab States. But under the Absolute
Vicarious Responsibility Doctrine a state is responsible regardless of its capacity or knowledge.

 Reprisals – these are acts of retaliation for violations of law w/c cause injury to the state making the reprisal or acts
of self-help in retaliation for un-redressed acts contrary to IL; this right is limited. Requisites: (1) there must be a prior
illegal act, (2) there must be a peaceful attempt to obtain redress from the offending state for violation, and (3) the reprisal
should not be excessive. Based on the requisites, the invasion of Israel cannot be considered as valid reprisal due to
the absence of the last 2 requisites. There were arguable no attempts at peaceful solution, and the act was massively
disproportionate to the attempted assassination of the Israeli Ambassador or the occasional sporadic shelling of the Israeli
villages.

 Self-Defense under the Restrictive Art. 51 (UN Charter) – in order to justify the use of force as a means of self defense,
there must be actual armed attack w/c is of a sufficient gravity. Frontier incidents are hardly sufficient to warrant an all-out
attack.

 Nadelstichtaktik Doctrine – in this case the totality of the acts of Palestine demonstrate a systematic campaign w/c
may be classified as aggression to as to justify self-defense on the part of Israel. The totality of the hostilities constitutes
an armed attack. Everything from the sporadic attacks, the build-up of forces, the assassination – these are all part of a great
scheme to attack Israel. Under this doctrine, the attack by Israel is justified.

 It may be argued that the all-out attack is disproportionate to the sporadic attacks; however, if viewed in the boarder context,
they were all part of the outright scheme to destroy Israel. It would therefore be necessary to eliminate the continued threat to
prevent further hostilities. That being the case, the allout attack is not necessarily disproportionate. But as stated, once the
threat is removed – or driven back from Southern Lebanon – Israel must thereafter desist from the attacks.

 Anticipatory Self-Defense – a defending state need not await an actual attack; self-defense may be employed in case of an
imminent threat of attack. Anticipatory self-defense is in fact recognized as part of international customary law. It is inherent in
sovereignty. The concentration of troops along the border is sufficient justification for defensive action so long as the danger
appears to be imminent. This is also consistent w/ the Theory of Necessity. Under this doctrine, Israel’s attack is also
justified – but after it has driven the Palestinians back, it must likewise desist – as the measure must be proportionate.

True that there is a lack of an attempt on the part of Israel to peaceably settle the issue; but its drastic action may nonetheless find
some justification under the Theory of Necessity. The option for peaceful settlement may be unavailable given the circumstances. The
UN contingent in Lebanon has proven ineffective in preventing the buildup. The threat was imminent.

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