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PUBLIC INTERNATIONAL LAW A2015
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existence of a rule of law requiring it.” (North except between the parties and in respect of that
Sea Continental Shelf Cases, infra.) particular case.
A new norm cannot emerge without both practice and Moreover, the ICJ does not observe stare decisis or the
opinio juris; and an existing norm does not die without the principle of judicial precedent, though it strives to
great majority of states engaging in a contrary practice and maintain judicial consistency.
withdrawing their opinio juris. (Higgins, Chapter 2)
Decisions of national tribunals also have evidential value.
In order for a practice to crystallize into a customary They provide indirect evidene of the practice of the state
norm, class discussions and Higgins (ibid.) only point of the forum on the question involved. Writers also make
to the following essential elements: frequent reference to municipal decisions. (ibid.)
1. Consistent state practice; and
2. Opinio juris Teachings of Publicists
CLASS NOTES Teachings of publicists are also only evidence of law.
Nonetheless, they are used widely in arbitral tribunals,
Q: What is the effect of a breach of a customary national courts, and the ICJ itself, and there are cases
international norm? where writers have had a formative influence on
Generally, a breach of a customary norm can give rise international law. (ibid.)
to the birth or creation of a new norm. There would
thus be instances where state conduct inconsistent Jus Cogens Norm
with established rules can be an indication of the A jus cogens or peremptory norm is a norm which States
recognition of a new rule. cannot derogate or deviate from in their agreements. It
owes its status from the fact that the community as a
However, “if a state acts in a way prima facie whole regards these norms as of critical importance, such
incompatible with a recognized rule, but defends its that particular states cannot “contract-out” of them. It is
conduct by appealing to exceptions or justifications mandatory and cannot be set aside or modified by
contained within the rule itself,…the significance of agreement. (Higgins, Chapter 2)
that attitude is to confirm rather than to weaken the
rule.” (Case Concerning Military and Paramilitary Q: Is a jus cogens norm the same as an erga omnes
Activities in and against Nicaragua [Nicaragua v. obligation?
USA], supra.) No. A jus cogens norm is a peremptory norm which
states consider as one from which no derogation is
General Principles of Law permitted.
This refers to analogies derived from general principles of
municipal law. According to Brownlie (Chapter 1), the An erga omnes obligation, on the other hand, refers
rationale for its inclusion is to authorize the Court to apply to obligations that a state owes to the international
municipal law principles, legal reasoning and private law community as a whole. Given the importance of the
analogies insofar as they are applicable to relations rights involved, all states can be held to have a legal
between states in order to make the law of nations a interest in their protection. (Case Concerning The
viable system for application. Barcelona Traction, Light and Power Company,
Limited) As such, it is used as a remedial law principle
This category also contemplates principles traced to state that allows all states to have standing with respect to
practice regarded as such by civilized nations. These its breach.
include principles of consent, reciprocity, equality among
states, finality of awards and settlements, legaility of “The notion of erga omnes is concerned with
agreements, good faith, and domestic jurisdiction. (ibid.) standing; that of jus cogens with the non-derogable
quality of a norm.” (Higgins, Chapter 9)
Judicial Decisions
Decisions of the ICJ are merely “subsidiary means for the In the Case Concerning East Timor (Portugal v.
determination of rules of law,” and consitute only an Australia) (infra.), Portugal invoked the erga omnes
evidence of the law. The ICJ applies the law and does not obligation of right to self-determination in order to
make it. However, it may be contended that a unanimous press a claim against Australia in its actvities in East
or almost unanmous decision has a role in the progressice Timor, though it in itself was not directly affected by
development of law. Austalia’s acts.
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example, the constitutional machinery of law Convention and the Geneva Convention
making in municipal law. because the Philippines is not a signatory
thereto at the time of the commission of
The ICJ cannot be considered as a formal source the acts.
because it does not have the concept of stare decisis.
The Commission had jurisdiction to try him.
UN GA Resolutions also cannot be formal sources
because they are merely restatements of customs. The Military Commission had jurisdiction to try Petitioner
CLASS NOTES because even if the Philippines was not a signatory to the
Conventions, which both US and Japan were signatories to,
2. Material Source – they are the substantive the rules and regulations of the Hague and Geneva
evidence of the existence of norms. They supply conventions form part of and are wholly based on the
the substance of the rule to which the formal generally accepted principles of international law. Such
sources gives the force and nature of law. In rules and principles form part of the law of our nation .
other words, they are evidence that the norm in
fact exists. For example, RA in printed form. Moreover, when the crimes charged against petitioner
were allegedly committed, the Philippines was under the
ICJ Statute, Article 53. sovereignty of United States and thus we were equally
bound together with the United States and with Japan to
1. Whenever one of the parties does not appear the right and obligation contained in the treaties between
before the Court, or fails to defend its case, the the belligerent countries. These rights and obligation were
other party may call upon the Court to decide in not erased by our assumption of full sovereignty. As held
favor of its claim. in Laurel v. Misa, “The change of our form government
from Commonwealth to Republic does not affect the
2. The Court must, before doing so, satisfy itself, prosecution of those charged with the crime of treason
not only that it has jurisdiction in accordance with committed during the Commonwealth because it is an
Articles 36 and 37, but also that the claim is well offense against the same sovereign people.”
founded in fact and law.
This case illustrates the relationship between
Q: Does repetition play a role in the development customary law and treaty law.
of international law?
On the one hand, if a treaty provides conventional
Repetition is necessary because a customary law, only the parties thereto are bound. On the other
international norm arises out of repeated state hand, if a treaty provides customary law, all states,
action. It is therefore basic to the formation of a rule signatories thereto or not, are bound.
of conduct. Norms of international law are created by
States through definite norm-creating methods This decision finds support in the Incorporation
accepted or recognized by them as a means of Clause in Article II, Section 2 of the Philippine
expressing consent as to their binding effect. In other Constitution. However, this case shows that even
words, international law is based on their normative without the said clause, general principles of
consent. international law continue to be binding by virtue of
our membership in the community of nations,
CLASS NOTES
KURODA v. JALANDONI
83 Phil 171 (1949)
YAMASHITA v. STYER
Shigenori Kuroda was formerly a Lieutenant-General of the 75 Phil 563 (1945)
Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in the Philippines (1943-1944). He Tomoyuki Yamashita is a commanding general in the
was charged before a Military Commission convened by Japanese Imperial Army in the Philippines. From being a
the Chief of Staff of the Armed Forces of the Philippines for prisoner of war after his surrender, his status was changed
the atrocities committed by Japanese Forces against to that of an accused war criminal and was charged before
civilians and other conduct during the war. an American Military Commission for having allowed
members under his command to commit massacre of
Kuroda: The Military Commission has no jurisdiction thousands of unarmed non-combatant civilians.
to try him.
No jurisdiction to try him for acts Yamashita: The Military Commission has no jurisdiction
committed in violation of the Hague to try him.
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Commission was not duly constituted; according to the customs and usages, convention and
The Philippines is not a US-occupied treaties, judicial decisions and executive pronouncements,
territory, hence an American military and generally accepted opinions of thinkers, legal
commission does not have jurisdiction philosophers and other expounders of just rules and
therein; principles of international law.”
He did commit any offense against the
laws of war. Justice Perfecto’s separate opinion is perhaps the
best statement regarding the binding nature of
The Commission had jurisdiction to try him. international humanitarian law and customary
norms. The excerpted paragraphs show that
SC cannot exercise jurisdiction over the acts of the Military humanitarian law is customary in nature by its
Commission. Citing Raquiza v Bradford, the Court held that “universal appeal to human conscience, …recognized,
any attempt of our courts to exercise jurisdiction over the by all civilized nations of the world.”
US Army before the end of a state of war would amount to
a violation of the Philippines’ faith. The state of war did His disquisition predates that of the Nuremberg trials.
not end with the cessation of hostilities; incidents of war CLASS NOTES
(e.g. seizure and punishment of enemies who violate the
laws of war; creation of military tribunals) may remain
pending and should be left unimpeded until completion. KOOKOORITCHKIN v. SOLICITOR GENERAL
81 Phil 435 (1949)
The Commission was duly constituted in accordance with
the authority of General MacArthur as commander of US Eremes Kookoorithckin is a Russian applying for
Forces and the Joint Chiefs of Staff. Per the Articles of War, naturalization in the Philippines. He was a member of the
a military commander has an implied power to covene a White Russian Army and was part of a contingent of 1,200
Military Commission for the purpose of trying offenders or which fled to Manila after the Russian Revolution. He is a
offenses against the laws of war in appropriate cases as it resident of Camarines Sur, married to a Filipina, works for
is an aspect of waging war. a bus company, and had in fact fought in the guerilla war
against the Japanese. Although Russian by birth, he
Jurisdiction over Yamashita was acquired by virtue of his disclaims Soviet citizenship.
capture by US forces. And the charges against him – brutal
atroities against unarmed civilians and other high crimes, Solicitor He is not entitled to naturalization.
among others – are offenses against the laws of war over General: There is no evidence that establishes his
which the Commission ahs jurisdiction. legal entry into the Philippines
He cannot speak English or Bicolano
During the liberation, the Philippines was occupied by US fluently;
forces for the purpose of removing Japanese forces. The No showing that he has lost his Russian
formation of the Commission is an incident of such citizenship, or that he is stateless.
liberation, and this has jurisdiction.
Kookooritchkin is a stateless refugee entitled to
Perfecto, J., concurring and dissenting.: naturalization.
The Philippines is bound to treat Yamashita in accord with No further proof of his legal entry is necessary. His arrival
established rules of treating war criminals. as part of the group of Russian soldiers was well
“Impelled by irrepressible endeavors aimed towards the documented, and his continuous residence in the
ideal, by the unconquerable natural urge for improvement, Philippines for 25 years without issue can be taken as
by the unquenchable thirstiness of perfection in all orders evidence of the legality of his residence.
of life, humanity has been struggling during the last two
dozen centuries to develop an international law which It is well known that the Soviet dictatorship has left
could answer more and more faithfully the demands of thousands of stateless refugees and displaced persons
right and justice as expressed in principles which, weakly without country and without flag. Its oppression has made
enunciated at first in the rudimentary juristic sense of it natural for those who were able to escape from it to
peoples of antiquity, by the inherent power of their “feel the loss of all bonds of attachment” therefrom. As
universal appeal to human conscience, at last, were such, there is no need for him to further prove his
accepted, recognized, and consecrated by all the civilized statelessness apart from his testimony that he “owes no
nations of the world.” allegiance to the communist government” and that he has
fled from it. He even refused to claim Russian citizenship
“Yamashita is entitled to be accorded all the guarantees, during the Japanese citizenship even if it meant better
protections, and defenses that all prisoners should have conditions for him.
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significance of that attitude is to confirm rather than to would lessen what it believed to be its proper share of the
weaken the rule. area based on the proportionality to the length of its North
Sea coastline.
Opinio juris from GA resolutions
UN General Assembly Resolutions may be understood as Denmark, The matter should be governed by a
an acceptance of the validity of the rule or set of rules Netherlands: mandatory rule of law called the
declared by the resolution by themselves. “equidistance-special circumstances” rule,
reflecting the language of Art. 6 of the
On the existence of armed attack 1958 Geneva Convention on the
The Court does not believe that the concept of “armed Continental Shelf. In the absence of
attack” includes not only acts by armed bands where such agreement of the Parties to employ
acts occur on a significant scale, but also assistance to another method, “all continental shelf
rebels in the form of the provision of weapons or logistical boundaries had to be drawn by means of
or other support. an equidistance line, unless ‘special
circumstances’ were recognized to exist.”
It is also clear that it is the State which is the victim of an
armed attack which must form and declare the view that it (In other words: The boundary should be
has been so attacked. There is no rule in customary based on the “equidistance-special
international law permitting another state to exercise the circumstance” rule because it is a Rule of
right of collective self-defense on the basis of its own Customary International Law – in the
assessment of the situation. absence of agreement by the states-
parties to employ another method or to
proceed to a delimitation on an ad hoc
NORTH SEA CONTINENTAL SHELF CASES basis, all continental shelf boundaries
(GERMANY v. DENMARK; GERMANY v. must be drawn by means of an
NETHERLANDS) equidistance line, unless or except to the
ICJ Reports 1969, p.5 (1969) extent which “special circumstances”
exist.)
Germany: The case should be decided on the basis of
equitable principles – “one according to
which each of the States concerned
should have a ‘just and equitable share’ of
the available continental shelf, in
proportion to the length of its sea-
frontage (Apportionment Theory).”
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The Court held that Germany was not under a legal The element of a reasonable degree of
obligation to accept the application of the Equidistance proportionality between the extent of the
Principle because its practical convenience and certainty of continental shelf areas appertaining to each state
application are not enough to convert it into a rule of law. and the length of its coast measured in the general
It ruled that the Convention was not binding on Germany direction of the coastline, taking into account the
because although it was a signatory, it never ratified, and effects, actual or prospective, of any other
was consequently not a party. Denmark and Netherlands continental shelf delimitations in the same region.
contended that the regime of Art. 6 was binding on
Germany because the latter had assumed that obligations
of the Convention by public statements, proclamations, SOUTH WEST AFRICA CASES (ETHIOPIA v.
and in other ways. The Court held that only estoppel could SOUTH AFRICA; LIBERIA v. SOUTH AFRICA),
give merit to Denmark and Netherland’s contention; SECOND PHASE
however, they showed no evidence of such prejudice so ICJ Reports 1966, p.6 (1966)
Art. 6 was not applicable to this case.
No customary norm providing for use of equidistance South West Africa (now present-day Namibia) was a
principle League of Nations Mandate Territory placed under the
administration of South Africa (as “mandatory”). Ethiopia
The Court also held that the Equidistance Principle was not and Liberia, in their capacities as former members of the
a rule of Customary International Law. Its non-exclusion League of Nations, filed this action against the
from the faculty of reservation leads to the inference that Government of South Africa, alleging that the latter had
it was not considered as reflective of emergent customary failed to promote the well-being of the inhabitants of
law. Moreover, the number of ratifications and accessions South West Africa in violation of its Mandate.
was hardly sufficient to make it a general rule of
international law. As regards the time element, although Ethiopia, South Africa failed to promote the material
the passage of only a short period of time was not Liberia: and moral well-being of the inhabitants of
necessarily a bar to the formation of a new rule of the Territory by:
customary international law on the basis of what was Practicing apartheid (i.e. distinction as to
originally a purely conventional rule, it was indispensable race, color, national or tribal origin with
that state practice during that period, including that of respect to rights of inhabitants) over the
states whose interests were specially affected, should Territory;
have been both extensive and virtually uniform in the Subjecting the territory to arbitrary
sense of the provision invoked and should have occurred legislation and decrees detrimental to
in such a way as to show a general recognition that a rule human dignity, rights and liberties
of law was involved. inconsistent with the latter’s
international status.
In the course of negotiations, the factors to be taken into
account were to include: Humanitarian considerations are sufficient
the general configuration of the coasts of the parties, to generate legal rights and obligations,
as well as the presence of any special or unusual which South Africa violated.
features;
so far as known or readily ascertainable, the physical The Mandate system operated under a
and geological structure and natural resources of “sacred trust of civilization” (i.e. aim of
the continental shelf areas involved; aiding the well-being and development of
people not able to govern themselves), and
all civilized nations had an interest to see
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Victor Raul Haya de la Torre, a Peruvian political figure, The Montevideo Convention relied on by Columbia for
applied for asylum before the Colombian Ambassador in unilateral qualification has been ratified by 11 states and
Lima after the Peruvian Government instituted rebellion has not been ratified by Peru. As such, it can neither be
charges against him for leading a botched coup attempt. taken as a reliable evidence of custom, nor be invoked
The Colombian Ambassador granted him asylum, and against Peru.
thereafter requested safe-conduct to enable the refugee,
whom he unilaterally qualified as a political offender, to As shown by the inconsistency and rapid succession of
leave the country. Peru refused and insisted that he asylum conventions and their acceptance and rejection by
committed common crimes so he was not entitled to enjoy various states, there is so much fluctuation and
the benefits of asylum. The two Governments were unable discrepancy in the exercise of diplomatic asylum that it is
to reach an agreement so they submitted the matter to the not possible to discern any constant and uniform usage in
Court. support of unilateral qualification, accepted as law by all
States.
Colombia: An asylum-granting state (i.e. Colombia) is
entitled to unilaterally qualify persons Haya de la Torre is not entitled to asylum.
seeking asylum as political refugees. The
territorial state (i.e. Peru) is bound to While the charge of military rebellion was not a common
respect such qualification and to give the crime which would justify Peru’s objection to the asylum,
guarantees necessary for the departure of there was no urgency within the meaning of the Havana
the refugee. Convention to justify a grant of asylum as there was no
imminence or persistence of a danger to the refugee.
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issue during that time was focused only on atmospheric Environmental Impact Assessment – an ancillary of
tests because in 1974, those were the only type of nuclear the precautionary principle which requires states to
tests being undertaken by France. However, had the Court assess the possible impact of a program to the
the knowledge available today, it would not have viewed environment prior to its undertaking.
New Zealand’s grievances as having come to an end in the Principle that damage must not be caused to other
consequence of shifting the venue of the explosions (from nations – no nation is entitled by its own activities to
atmospheric to underground testing). cause damage to the environment of any other
nation.
New Zealand’s complaint in 1973 was that damage was
caused by French nuclear explosions in the Pacific. New LEGALITY OF THE THREAT OR USE OF
Zealand's complaint today is the same. The cause is the NUCLEAR WEAPONS (ADVISORY OPINION)
same, namely, French nuclear tests in the Pacific. The ICJ Reports 1996, p.226 (1996)
damage is the same, namely, radioactive contamination.
The only difference is that the weapons are detonated WHO submitted a request to the ICJ for an advisory opinion.
underground.
The question was “in view of the health and environmental
effects, would the use of nuclear weapons by a State in
New Zealand had made out a prima facie case of danger war or other armed conflict be a breach of its obligations
from French nuclear tests, on which it has shown that the under international law including the WHO Constitution?”
“basis” of the 1974 Judgment is now “affected”. This gave
New Zealand a right to request the examination of the
Against Existence of a rule of international
situation, and placed the Court under a duty to consider its Nuclear customary law which prohibits recourse to
Request and interim measure, and also the applications for
Weapons: those weapons.
permission to intervene of Australia, Samoa, Solomon
Treaties which can be interpreted to
Islands, the Marshall Islands and the Federated States of
prohibit use of nuclear weapons (e.g.
Micronesia.
genocide, right to life, environmental
protection);
Important principles of environmental law were stated in
Consistent practice of non-utilization of
this case:
nuclear weapons by States since 1945;
Inter-temporal Principle – the Court must apply
UN General Assembly resolutions that deal
scientific knowledge now available and not limit
with nuclear weapons and that affirm,
itself to what was known at the time the issue came
with consistent regularity, the illegality of
about.
nuclear weapons.
Inter-generational rights – each generation is both a
custodian and a user of our common natural and
There is no customary international law which authorizes
cultural patrimony. As custodians of this planet, we
the threat or use of nuclear weapons.
have certain moral obligations to future generations
which can be transformed into legally enforceable
Customary international law and treaty law do not contain
norms. Considering that the half-life of radioactive
any specific prescription authorizing the threat or use of
by-products would last for thousands of years, it is
nuclear weapons or any other weapon in general or in
the responsibility of the people today to protect the
certain circumstances, in particular those in the exercise of
interest of the future generations.
legitimate self- defense.
Precautionary principle – when there is a complaint
regarding environmental damage being committed However, neither is there customary international law
by another party, the proof or disproof likely lies which provides a universal prohibition of the threat or
with the other party. Several
use of nuclear weapons.
conventions/declarations had been entered into
using this principle, that environmental measures As to the treaties. Although there are treaties which deal
must anticipate, prevent and attack the causes of exclusively with the acquisition, manufacture, possession
environmental degradation. Under the Bergen
and deployment of nuclear weapons, the treaties do not
Declaration, prior assessment and reporting of the constitute such prohibition of the weapons themselves.
environmental impact of projects or programs of
While these may foreshadow a future general prohibition
states shall be undertaken by parties. This principle of the use and indicate an increasing awareness of the
is important because it should have prompted the dangers of such weapons, these do not amount to a
ICJ to decide this case and not postpone the
prohibition on the use or threat of use of the same.
examination of the case presented by NZ until full
scientific evidence is available that can either As to the non-utilization of nuclear weapons. The
support or refute NZ’s contention. international community remains divided on whether the
non-recourse to use of nuclear weapons constitutes an
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expression of opinion juris. While it has been argued that Various legal writings and treatises of legal experts
non-use since 1945 (Hiroshima and Nagasaki bombings) and luminaries which provide for the exemption of
was indicative of aversion to nuclear weapon utilization, fishing/commercial vessels
others countered that the role of such weapons in the
“policy of nuclear deterrence” (i.e. mutually assured Customary international norms are self-executory;
destruction) constituted a valid use. As such, the Court there need not be any treaty or agreement to bring
ruled that there is no such opinion juris expression. them into force.
CLASS NOTES
As to the UN General Assembly Resolutions. While General
Assembly resolutions have no binding effect, they may
sometimes have normative value. They can, in certain CASE CONCERNING RIGHT OF PASSAGE OVER
circumstances, provide evidence important for INDIAN TERRITORY (PORTUGAL v. INDIA)
establishing the existence of a rule or the emergence of an ICJ Reports 1960, p.6 (1960)
opinio juris. To establish whether this is true of a given
General Assembly resolution, it is necessary to look at its
content and the conditions of its adoption. It is also
necessary to see whether an opinio juris exists as to its
normative character.
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Treaty of 1779 – The Marathas (Indians) Thailand is under an obligation to withdraw the
themselves regarded the treaty as valid and detachments of armed forces it has stationed therein.
binding. The treaty was also frequently referred to Thailand, however, counters that that the temple is in Thai
in subsequent formal documents by the Marathas. territory.
The British, as successors of the Marathas,
recognized Portuguese sovereignty over the Cambodia: Maps printed and published by a French
enclave territories and never questioned it. By cartographical firm;
implication it was subsequently recognized by India. Publication and communication of 11
As a consequence the villages comprised in the maps to the Siamese government;
Maratha grant acquired the character of The map traced a frontier line purporting
Portuguese enclaves within Indian territory. to be the outcome of the work of
delimitation of the Mixed Commission. It
However, with regard to armed forces, police and arms showed that the whole Temple area is on
and ammunitions, there is no such right of passage. the Cambodian side;
During the British period up to 1878 passage of There was an acknowledgement by
armed forces and armed police between British conduct by Thai authorities because they
and Portuguese possessions was regulated on a never questioned or disagreed about the
basis of reciprocity. maps within a reasonable time.
Article XVIII of the Treaty of Commerce and Therefore, they must be deemed to have
Extradition of 26 December 1878 between Great acquiesced;
Britain and Portugal laid down that the armed When the Siamese authorities received
forces of the two Governments should not enter the maps, the Minister of Interior
the Indian dominions of the other, except for the thanked the French Minister of Bangkok
purposes specified in former Treaties, or for the for the maps and asked for another 15
rendering of mutual assistance as provided for in copies for the transmission to Siamese
the Treaty itself, or in consequence of a formal governors;
request made by the Party desiring such entry. The Siamese authorities did not raise any
query about the map as between
Constant and uniform practice between States is also themselves and France or Cambodia, or
a source of international law. There is no need to expressly repudiate it as such, until the
resort to general international custom or to general 1958 negotiations in Bangkok, when the
principles of law in disposing of such cases when question of Preah Vihear came under
there is an established between the parties. discussion between Thailand and
CLASS NOTES Cambodia.
Thailand: At all material times, Thailand has
exercised full sovereignty in the area of
GENERAL PRINCIPLES OF LAW the Temple;
The general nature of the area allows
Estoppel access from Thailand to the Temple,
Estoppel and acquiescence are general principles of law whereas access from Cambodia involves
which can be a basis of international law. The requisites of the scaling of a high cliff from the
this principle are the same as those provided for by the Cambodian plain.
Civil Code, namely:
1) Act or representation; The Temple is situated in territory under the sovereignty
2) Reliance on the act; and of Cambodia. Therefore, Thailand is under an obligation
3) Damage to other party stemming from such to withdraw any military or police forces stationed at the
reliance. (Civil Code, Art. 1437) Temple.
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Reparation is the corollary of the violation of the Although a State can make a claim when investments by
obligations resulting from an engagement between States. its nationals abroad (such investments being part of a
In determining reparation, the following must be State’s national economic resources) were prejudicially
considered: affected in violation of the right of the State itself to have
a. Existence of the obligation to make reparation; its nationals enjoy a certain treatment, such right could
b. Existence of the damage which must serve as the only result from a treaty or special agreement. There is no
basis for the amount of the indemnity; instrument of such kind which was in force between
c. Extent of the damage. Belgium and Spain.
The essential principle in determining compensation for an A corporation enjoys a separate personality from its
act contrary to international law: shareholders and from the State in which it is
“Reparation must wipe out all the consequences, organized.
as far as possible, of the illegal act and re- CLASS NOTES
establish the situation which would, in all
probability, have existed if the act had not been
committed.” Principle of Acquired or Vested Rights
The principle of respect for acquired rights is one of the
Since the seizure of the factory and the undertaking fundamental principles of both public international law
therein is prohibited by the Geneva Convention, the and municipal law of most civilized States.
obligation to restore the undertaking is incumbent or, if
not possible, to pay indemnity. Since it is already
impossible to restore the factory to its owners, then SAUDI ARABIA v. ARABIAN AMERICAN OIL
compensation for the loss sustained as a result of the COMPANY (ARAMCO)
seizure and payment of indemnity is incumbent upon 27 ILR 117
Poland.
The Government of the State of Saudi Arabia made a
Domestic Corporations are Separate Entities from concession agreement with the Arabian American Oil
their Respective States Company (ARAMCO), which includes the exclusive right to
transport oil which it had extracted from its concession
area in Saudi Arabia. Subsequently, Saudi Arabia concluded
another concession agreement with Mr. Onassis and his
CASE CONCERNING THE BARCELONA
company (Saudi Arabian Maritime Tankers) which gave the
TRACTION, LIGHT AND POWER COMPANY,
latter a 30-year right of priority for the transport of Saudi
LIMITED (BELGIUM v. SPAIN) Arabian oil. An issue therefore arose regarding those
ICJ Reports 1970, p.3 (1970)
provisions and the agreement between Aramco, which was
previously given the
Barcelona Traction and its subsidiaries are incorporated in
Canada and Spain. BT’s share is largely held by Belgian In its capacity as first concessionaire, Aramco enjoys
nationals. After the Spanish Civil War, the Spanish exclusive rights which have the character of acquired or '
government refused the authorization for the transfer of vested ' rights and which cannot be taken away from it by
foreign currency necessary for the servicing of bonds issued the Government by means of a contract concluded with a
by BT. BT incurred debt for the payment of interest on the second concessionaire, even if that contract were equal to
bonds and subsequently, it was declared bankrupt. its own contract from a legal point of view. The principle of
Belgium filed an Application with the ICJ. respect for acquired rights is one of the fundamental
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principles both of public international law and of the proscribed acts alleged to have occurred, nor is it
municipal law of most civilized States. The taking, necessary that the crime alleged takes place during
therefore, must have just, adequate and prompt combat, that it be part of a policy or of a practice officially
compensation endorsed or tolerated by one of the parties to the conflict,
or that the act be in actual furtherance of a policy
Distinction between a franchise and concession associated with the conduct of war or in the actual interest
agreement: A franchise for the extraction of wealth is of a party to the conflict; the obligations of individuals
imbued with public interest. A concession agreement, under international humanitarian law are independent
however, involves no public service as there is no and apply without prejudice to any questions of the
public end-user. responsibility of States under international law.
CLASS NOTES
PROSECUTOR v. TADIĆ
ICTY Judgment of 2 October 1995 (1995) Deeds of Concession were concluded between the Libyan
Government and 2 American companies. A Decree of
Nationalization nationalized 51% of the properties, rights
Dusko Tadid [tah-dich] was the first individual to be tried
and assets of the companies relating to the Deeds of
by the International Criminal Tribunal for the Former
Concession.
Yugoslavia (ICTY). He was tried for war crimes and was
accused of committing atrocities at the Serb-run Omarska
Amoseas, a company governed by foreign law, which was
concentration camp in Bosnia-Herzegovina in 1992. Tadid
formed jointly by the Companies to be their operating
challenged the jurisdiction of the International Tribunal.
entity in Libya, was to continue to carry out its activities for
Tadid claims that to be duly established by law, the
the account of the Companies to the extent of 49%, and for
International Tribunal should have been created either by
the account of the Libyan National Oil Company (N.O.C.),
treaty, the consensual act of nations, or by amendment of
to the extent of 51%. The Nationalization Decree converted
the Charter of the United Nations, not by resolution of the
Amoseas into a non-profit company, the assets of which
Security Council.
were completely owned by N.O.C. Amoseas lost its name
and was renamed. The Companies notified the Libyan
Tadid: To be a duly established tribunal which could
Government that recourse would be taken to arbitration by
try him, the International Tribunal should have
virtue of clause 28 of the Deeds of Concession.
been created either by treaty, the consensual
act of nations, or by amendment of the
The dispute, relating to nationalization, should be
Charter of the United Nations, not by
resolved in concurrence with the principles of
resolution of the Security Council.
international law and not to be based solely on the law of
the nationalizing state.
The International Tribunal has jurisdiction over the acts of
Tadid. Article 2 of the Statute provides that:
When contractual relations is governed by international
law between a State and a foreign private party means
“International Tribunal shall have the power to
that for the purposes of interpretation and performance of
prosecute persons committing or ordering to be
the contract, it should be recognized that a private
committed grave breaches of the Geneva
contracting party has specific international capacities.
Conventions of 12 August 1949”,
Considering that some contracts may be governed both by
municipal law and by international law, the arbitrator held
and there follows a list of the specific crimes proscribed.
that the choice of law clause referred to the principles of
Geneva Conventions are a part of customary international
Libyan law rather than to the rules of Libyan law.
law, and as such their application in the present case does
not violate the principle of nullum crimen sine lege.
The application of the principles of Libyan law does not
have the effect of ruling out the application of the
It would be sufficient to prove that the crime was
principles of international law. It simply requires the
committed in the course of or as part of the hostilities in,
combination of the two in verifying the conformity of the
or occupation of, an area controlled by one of the parties.
first with the second.
It is not, however, necessary to show that armed conflict
was occurring at the exact time and place of the
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The arbitrator ruled that he would refer on the one hand performance or restitution in integrum. Its only remedy is
to the principle of the binding force of contracts an action for damages.
recognized by Libyan law, and on the other to the principle
of pacta sunt servanda (i.e. agreements must be kept) States, because of their sovereignty, have the power
which is a general principle of law of international law. The to expropriate. The only exception to this rule is if the
principles of Libyan law were in conformity with taking was down without prompt, adequate and just
international law and the Deeds of Concession in dispute compensation.
had a binding force. CLASS NOTES
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realized, the acts of the PLO can be considered acts of systems in Spain. It later formed subsidiary companies
a state in statu nascendi. incorporated in either in Canada or Spain. After the First
World War, majority of Barcelona Traction’s share capital
Legal Constructions were held by Belgian nationals. Barcelona Traction issued
A state's legal order may be projected on the plane of time several sterling bonds however the servicing of these bonds
for certain purposes although politically it has ceased to were suspended because of the Spanish Civil War. When
exist. the war ended, Spanish authorities still refused to
authorize the transfer of foreign currency necessary to
Belligerent and Insurgent Communities resume the servicing of the bonds. The company was
This refers to de facto authorities in control of a specific eventually declared bankrupt.
territory. Parastatal entities are recognized as possessing a
definite if limited form of international responsibility Belgium then initiated an application before the ICJ against
attributed with treaty-making capacity. the Spanish government for damages allegedly caused by
the latter to the Belgian shareholders of Barcelona
Entities sui generis Traction.
These are entities which maintain some sort of existence
on the international legal plane in spite of their anomalous Belgium: It has jus standi because injury was sustained
character. This anomalous character may be negated by by Belgian nationals who had interests in the
acquiescence, recognition and the incidence of voluntary company bankrupted by acts of Spain.
bilateral relations, provided no rule of jus cogens is broken. Spain: Belgian Government lacks the jus standi to
intervene or make a judicial claim on behalf of
Example: “The Sovereignty of the Holy See.” – its Belgian interests in a Canadian company even
personality seems to rest partly on its approximation assuming that the Belgian character of those
to a state in function, and partly on its approximation interests was established.
to a state in function, and partly on acquiescence and
recognition by existing legal person, as evidenced by Belgium did not have jus standi to sue in behalf of
the fact that a number of states have diplomatic Barcelona Traction’s Belgian shareholders.
relation with it and it has been a party to multilateral
conventions. The acts complained of did not affect any Belgian
naturalistic or juristic person but in fact concerned a
Example: Exile governments. – they are also accorded juristic entity registered in Canada. The Belgian interests
considerable powers within the territory of most in this case were in the nature of shareholding interests.
states; the legal status of such entities is
consequential on the legal condition of the Changes in the international arena have given birth to
community it claims to represent, which may be a municipal institutions that have transcended frontiers and
state, belligerent community or non-self-governing play an important role in international relations, which in
peoples. this case is the corporate entity. However, since corporate
entities are essentially created by States within their
Example: Taiwan. – It is a territory the title of which is domestic jurisdiction, municipal laws should be considered
undetermined, inhabited and has an independent in resolving disputes concerning them. Pertinent to this
administration. It is treated as having a modified case, municipal law places a firm distinction between the
personality, approximating that of a state. rights of the company and those of the shareholder. Only
the company, which was endowed with legal personality,
Individuals could take action in respect of matters that were of a
There is no general rule that individuals cannot be a corporate character. A wrong done to the company
subject of international law. However, this implies the frequently caused prejudice to its shareholders, but this
existence of certain capacities. (infra., p. 141) (Brownlie, did not imply that both were entitled to claim
Chapter 3) compensation.
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The UN is an international person and has the capacity to A State like Greece can take up the case of its subjects
bring international claims. when they are injured by acts contrary to international law
committed by another State, from who said subject had
The UN is an organization and as such, it is as an been unable to obtain satisfaction through the ordinary
international person subject to international law. It is channels. This is founded on Greece’s right to ensure
therefore capable of possessing international rights and respect for rules of international law, a right which in this
duties, including the capacity of maintaining its rights by case appears to have been violated by Britain. It should
bringing international claims. Such claim can be based on not be looked at not as a substitution between Greece and
the breach of an international obligation on the part of the its subject, but as assertion of its own rights as a State.
member held responsible for such against the interests of This will lead to the conclusion that Greece is the sole
the UN itself, its administrative machine, its property and claimant in this case. The court deemed as irrelevant
assets, and the interests of which it is the guardian. whether the dispute originated from a personal injury or
not.
As regards the damages caused to the victim (UN agents),
while it is not expressly stated in the UN Charter that the
organization can include such interests in their claims, the CERTAIN EXPENSES OF THE UNITED NATIONS
UN is deemed to have those powers which although not (ARTICLE 17, PARAGRAPH 2, OF THE CHARTER)
expressly provided in the charter, is conferred upon it by (ADVISORY OPINION)
necessary implication as being essential in the ICJ Reports 1962, p. 151 (1962)
performance of its duties. In this case, in order to ensure
the independence of the agent, which in turn ensures the The Acting Secretary-General of the UN wrote a letter to
independence of the UN itself, it is essential that the agent the President of the ICJ requesting the latter to give an
in performing his duties need not have to rely on any other advisory opinion on the following question:
protection other than that of the organization.
“Do the expenditures authorized in General
ICJ rejected the doctrine that only states are subjects Assembly resolutions relating to the UN
of international law. operations in the Congo undertaken in pursuance
CLASS NOTES of the Security Council resolutions and the
expenditures authorized in the General Assembly
resolutions relating to the operations of the UN
THE MAVROMMATIS PALESTINE CONCESSIONS Emergency Force constitute ‘expenses of the
PCIJ, Ser. A, No. 2, (1924) Organization’ within the meaning of Article 17,
paragraph 2, of the Charter of the United
The Greek Republic filed a case before the ICJ alleging the Nations?“
refusal of the Government of Palestine and the British
Government who holds the mandate over Palestine, to Yes, they were expenses of the organization within the
recognize the rights acquired by Mavrommatis (a Greek meaning of the UN charter.
subject). Prior to the controversy, Mavrommatis concluded
contracts and agreements with the Ottoman authorities in Article 17, paragraph 2 states:
regard to concessions for certain public works to be “The expenses of the Organization shall be borne
constructed in Palestine. The dispute was in the beginning by the Members as apportioned by the General
between a private person (Mavrommatis) and a State Assembly.”
(Britain).
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Practice of States and opinion of publicists indicate Modes of Acquiring Territorial Title
that the declaratory school is the preferred approach, 1. Occupation – not the mere discovery but
the prevailing view being that recognition is not an effective exercise of sovereignty over a territory
element of statehood. (Magallona, 2005) which is terra nullius (i.e. not under the
sovereignty of another state). Effective
Q: Is recognition from other states necessary for occupation means “continued display of
one’s statehood authority which involves two elements: the
intention and will to act as a sovereign, and
No, this would be violative of the sovereign equality
some actual exercise or display of such authority
of states as found in the UN Charter. Otherwise, there
(Eastern Greenland Case).
will be a situation when affirmative action of other
states will allow them to assert dominance.
Animus occupandi must be demonstrated and
evidenced by some administrative or political
Recognition by other states is determinative, not
acts in relation to the territory in question and
constitutive of statehood. While recognition is no
such act must be under the title of sovereignty.
longer necessary for a state to exist as such, it is still
important because it signifies other states’
Territories inhabited by tribes or peoples having
confidence in another. It also shows intention to have
a social and political organization are not
diplomatic relations.
regarded as terra nullius, and hence may not be
Functions subject to valid occupation. (Western Sahara
Case)
1. Determination of statehood
(While not a criteria, it may have evidential
2. Accession or Accretion – natural process of land
effect before a tribunal in establishing presence
formation resulting in increase of territory.
of statehood)
2. Condition for the establishment of diplomatic
relations and the conclusion of treaties 3. Cession – mode of transfer of title to territory
from one state to another by way of treaty
No Duty to Give Recognition whereby the ceding state renounces its title to
Recognition, as a public act of a state, is an optional and such territory. It is thus a bilateral mode of
political act. There is no legal duty for such state to give acquisition, the other modes being unilateral. It
another state recognition. (Brownlie, Chapter 4) is a derivative mode since its validity depends on
the valid title of the ceding state; the cessionary
state cannot have more rights than what the
ceding state possessed.
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context referring to sovereignty as “absolute.” However, placed the latter in estoppel because
in the international sphere, sovereignty realizes itself in said treaty kept Spain’s title over the
the existence of a large number of sovereignties, such that area in dispute intact.
there prevails in fact co-existence of sovereignties under The Treaty of Paris wherein Spain ceded
conditions of independence and equality. the Philippines to the United States and
by virtue of which the latter became the
The sovereignty of one state ends where the sovereignty successor of Spain.
of another begins. That limitation is built into the nature It has constructive possession over Las
of state sovereignty under international law. To conceive Palmas pursuant to the principle of
it as unlimited is to negate its existence in the context of contiguity in that the island forms a
the co-existence of sovereignties, resulting in the negation geographical part of the Philippines and
of the international community composed of juridically therefore is under the power exercising
equal states. sovereignty over the Philippines.
Netherlands: Discovery by Spain, or any other
State Sovereignty as defined in International Law method of acquisition over the disputed
It is the right to exercise in a definite portion of the globe territory, has not been adequately
the functions of a State to the exclusion of another state. proven.
According to the widely accepted opinion Of Judge Huber Assuming arguendo that Spain indeed
in the Island of Las Palmas case, “Sovereignty in the had title over Las Palmas, it has lost
relations between states signifies independence. The such title thru acquiescence because it
development of the national organization of States during did not exercise sovereignty over the
the last few centuries, as, as a corollary, the development disputed territory.
of international law, have established this principle of the It has been represented by the East
exclusive competence of the State in regard to its own India Company through which it
territory I such a way as to make it the point of departure possessed and exercised sovereignty
in settling most questions that concern international over Las Palmas from 1648 onwards.
relations.” Contracts of Suzerainty wherein it
established conventions with natives
(included collection of taxes, etc.) which
ISLANDS OF LAS PALMAS CASE (U.S. v. show Netherlands’ exercise of
NETHERLANDS) sovereignty over the territories of the
2 RIAA 829 (1930) native princes of the island.
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arises, its continued existence must follow the conditions to an official claim to the land and territorial waters of the
th
required by the evolution of law. Therefore, said 16 island. This renewed the controversy settled in the 1928
th
century international law is qualified by 19 century Las Palmas Arbitration wherein the Netherlands was
international law which requires not only discovery but declared to have superior title over the disputed territory.
also effective occupation. Spain’s discovery merely
created an inchoate title and without any external REASONS WHY PHILIPPINES SHOULD CLAIM LAS PALMAS
manifestation, said title was not perfected. According to the author, there are several reasons why the
Philippines should claim the area of Las Palmas. First, it is
US’ claim of contiguity was rejected, as this was very close to the strategic axis linking the Pacific and
inapplicable in cases of territorial sovereignty because it is Indian oceans. It will enable the Philippines, possibly in
not precise and could lead to arbitrary results. In the end, cooperation with Indonesia, to establish archipelagic sea-
this inchoate title cannot prevail over Netherlands’ open lanes and control, monitor and maintain surveillance of
and public display of sovereignty which is evidence of its sensitive maritime jurisdictions. Many population centers,
effective occupation over Las Palmas. industrial zones and ports are accessible from that area.
Critical Period. – It is a judicial technique in the use or Second, it is close to the critical spawning areas of
exclusion of evidence consisting of self-serving acts of economically important fish like the yellow fin tuna. The
parties at a stage when it was evident that a dispute area has also been declared as a maritime eco-region by
existed. Regardless of subsequent events, the court will the WWF because of its distinct and outstanding
freeze the period of the controversy to the date when the biodiversity.
issue because ripe for adjudication.
Third, the area in dispute is also a “warm pool” of the
Intertemporal law. – Where different legal rules existed world’s oceans making it suitable for large scale ocean
over a period of time, both the rule at the creation of the terminal plants. The author also said that the
right and rule at time of its existence should be applied. aforementioned reasons, plus the sheer amount of area
that the Philippines will lose, warrant a re-examination of
Discovery alone merely gives rise to a mere inchoate the 1928 Las Palmas Arbitration which is the root of
right. Effective occupation must be proven. Indonesia’s claim to Las Palmas.
US could have won the case if they had shown that at CRITICISMS TOWARD THE 1928 ARBITRATION
that time there was no separation of church and The author cited Jessup’s criticisms of the substantive and
state. By showing that there were priests, civil procedural aspects of Huber’s arbitration. According to
registrar, collection of tribunes, etc., they would have Jessup, the use of Intertemporal Law is non-sequitur and is
been able to show Spanish occupation of the island. without precedent. Jurisprudence abounds in
international law which respects the Principle of Acquired
Also, this case is disturbing because the US lost Rights or applies the law at the time of the creation of a
something that they did not have. By December right. Thus, a state’s title over territory cannot be
1898, Filipinos were already in control of the state. extinguished simply by virtue of the rise of a contemporary
CLASS NOTES norm. If this was the case, the retroactive effect of law
would be highly disturbing in that every state would have
to re-examine its title to each part of its territory to
“LAS PALMAS ARBITRATION REVISTED” determine whether a change in the law has necessitated a
by H. Harry Roque reacquisition. In Spain’s case, when it acquired Las Palmas
by virtue of discovery which was valid in 16th century
CONTEXT international law, it already acquired a right over said
This is in context of the continued dispute between the territory regardless of the evolution underwent by
Philippines and Indonesia as to which territory Las Palmas international law.
should belong to. In 2002, amidst negotiations between
the two states, Indonesia enacted a new Baselines Law As to Huber’s ruling that US failed to show effective
wherein it used Las Palmas as a basepoint in drawing its occupation, Jessup criticized this using the Theory of
archipelagic baselines. If the this new law was to be Constructive Possession which provides that the
followed, the Philippines will not only lose Las Palmas but possession of the whole is tantamount to the possession
also around 15,000 square miles of archipelagic and of the parts of the whole. In occupying Mindanao, Spain
territorial waters which are currently defined as Philippine also occupied Las Palmas as part of the Philippine
territory under the Treaty of Paris. Said law is contrary to archipelago. Jessup also criticized Huber’s rejection of the
Indonesia’s former commitment to delimit the area in Principle of Contiguity which is actually recognized in
dispute only after negotiations with the Philippines have international law and has been prominently practiced in
concluded. Accordingly, the Baselines Law was equivalent 1928 (time of the arbitration) especially in dealing with a
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Construction of cabins.
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Indonesia: In 1895 and 1928, Dutch Royal Nay Ethiopia, which had in turn inherited its
deployed ships in the area; title from Italy;
Indonesian fishermen fished in the area; Construction and maintenance of
and lighthouses in different islands.
Non-inclusion of the islands in their maps Yemen: Historic title. This title can be traced to the
immaterial because they were prepared in Bilad el-Yemen, which is said to have
haste. existed as early as the 6th Century AD.
Malaysia: As early as 1914, the Great Britain Automatic reversion. When the Ottoman
regulated the control and collection of Empire collapsed, ending its occupation of
turtle eggs in the area; the area, the title reverted back to Yemen.
It established licensing for boats; Construction and maintenance of
Established reservations for bird lighthouses in different islands.
sanctuaries;
British North Borneo authorities No title by succession. Italy, Eritrea’s predecessor, did not
constructed lighthouses in the 1960s obtain title to the territory under the Treaty of Lausanne
which were under the control of the because it was provided that the allied powers have yet to
Malaysian authorities. agree on who can claim sovereignty over the territory.
The court ruled for Malaysia because of its “effective acts No historic title. Medieval Yemen had no concept of
of administration” territorial sovereignty. Therefore, Yemen cannot claim title
by automatic reversion.
Among other evidence presented, Malaysia’s construction
of lighthouses in 1962 and 1963 was considered by the The tribunal found out that none of them presented a
Court. While they are not usually used as an indicator of better claim, so it decided based on effective occupation,
state authority (as in the Minquiers and Ecrehos Case), since occupation is the prima facie evidence of title.
they are legally relevant in the case of small islands.
Portico Doctrine. – A method by which off-shore islands
The Court rejected Indonesia’s claim that they merely can be attributed to a State’s sovereignty. Islands near
tolerated the construction of the lighthouses because they coastal states must pertain to such states.
are useful for safe navigation. According to the Court,
these lighthouses are very important to people in North Both parties have constructed and operated lighthouses in
Borneo, and the silence of Indonesia over this construction different islands. The significance of these lighthouses
is highly unusual. would thus have to be considered separately, on a per
island basis.
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(This section deals with the parties’ claims relating to maps. (This section deals with the parties’ claims relating to maps.
For a more exhaustive discussion, refer to p. 31) For a more exhaustive discussion, refer to p. 14)
Claims relating to maps: Two treaties were entered into by France and Siam which
Eritrea: Maps from the 20th century that Italy (its involved delimitation of certain areas. A commission was
predecessor state) was sovereign over the tasked to survey the delimitation points and the final stage
islands. of the delimitation was the preparation of maps. Siam did
Yemen: Maps from the 18th to 19th centuries show not possess adequate technical means to do so, prompting
that the islands once belonged to Yemen, it to ask French officers to do the mapping for them. The
proving its historical title. maps were drawn by a well-known French cartographer
UN maps from the 1950’s show that the and given wide publicity. It was communicated to the
islands were not considered part of government of Siam.
Ethiopia (present-day Eritrea)
The principle of estoppel was applicable. The maps were
As to the pre-19th century maps, Court ruled that there communicated to Siam as purporting to represent the
was no attribution of the islands to Yemen. outcome of the work of delimitation. Since there was no
reaction on the part of Siam, either then or for many years,
As to the use of maps to prove Italian sovereignty during and that France (later, Cambodia) relied on this non-
the 20th century, it appears that official Italian cartography objection of Siam, Siam (later, Thailand) is estopped from
did not wish formally to portray the Islands as being under claiming otherwise. The uti possidetis juris principle is
Italian sovereignty in the inter-war period. However, the applicable as to the successor states i.e. Cambodia and
map evidence – whilst supportive of and consistent with Thailand.
the conclusions reached – is not itself determinative.
Were there no other evidence in the record concerning Principle of Uti Possidetis Juris. – Successor states shall
the attitude or intentions of Italy, this evidence would be respect colonial boundaries of colonial rulers.
of greater importance.
As to the UN maps, it is UN practice that its publication of CASE CONCERNING THE TERRITORIAL
maps does not constitute a recognition of sovereign title DISPUTE (LIBYAN ARAB JAMAHIRIYA v. CHAD)
over territory. Hence, they cannot be relied upon by either ICJ Reports 1994, p. 6 (1994)
party.
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With respect to the fact that the treaty itself specified that Straight baseline method. This method consists of
it has a life of only 20 years, the Court applied the theory selecting appropriate points on the low-water mark and
of auto-limitation – which provides that boundaries have a drawing straight lines between them.
life of its own, separate from the treaty itself. A boundary
established by treaty achieves permanence which the Following this method, there is no need to follow all of the
treaty itself does not necessarily enjoy. indentations or sinuosities in drawing the baseline.
Straight baselines shall be drawn connecting appropriate
points along the skjaergaard. It is from this line that the
ANGLO-NORWEIGIAN FISHERIES CASE (UNITED territorial sea shall be reckoned.
KINGDOM v. NORWAY)
ICJ Reports 1951, p. 116 (1951)
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Contemporaneous acts (belief of one that he belongs to occupation. Physical occupation is merely procedural to
this particular unit) are considered because it is useless to the taking of possession and is not identical to the latter.
look at effective occupation, for the territories are subject
to only one colonial rule. The Court looked at the Republic If a territory is uninhabited, from the moment when the
Titles submitted to them and the subsequent acts of occupying state makes its appearance there, at the
parties after independence, referring to post-colonial absolute and undisputed disposition of that state, from
effectivites as proof of colonial boundaries. The Court said that moment the taking of possession must be considered
that principle acquiescence by recognition will also apply if as accomplished, and the occupation is thereby completed.
a party does not object. Uti possidetis still applied to the Physical occupation is not required in this case. The
islands (El Tigre, Meanguera & Meanguerita) because none published declaration of occupation was sufficient to show
of them are terra nullius which can be acquired through taking of possession and intent to possess.
occupation.
Clipperton Island, apparently uninhabitable, is a low coral Its roots can be traced to the treatise “Mare Liberum” by
reef in the Pacific Ocean. In 1858, the French Navy, while Portuguese Hugo Grotius, which advanced the principle
cruising about half a mile off Clipperton, declared that the that the sea is owned by everyone and that it was under
sovereignty of the island beginning from that date belongs the regime of the “common heritage of mankind.”
to Emperor Napoleon III. The vessel didn't reach the shore
and it left without leaving on the island any sign of It divides the oceans and seas into the following maritime
sovereignty. The declaration was communicated to the zones:
government of Hawaii and was published in the journal Internal Waters
The Polynesian of Honolulu. The island remained without Territorial Sea
population and no administration. Later, Mexico arrived Contiguous Zone
and ignored the occupation claimed by France and hoisted Exclusive Economic Zone
their own flag. It claimed that the islands belong to it. High Seas
France has title over the islands. There are two types:
1. Normal Baseline
There is no proof that Spain discovered the island first and 2. Straight Baseline
that Spain effectively exercised such right. It presented a
map but the official character of such map cannot be UNCLOS, Art. 5.
affirmed. Also, proof of historic right is not supported by Normal baseline
manifestation of sovereignty over the island. The tribunal
found that the island was terra nullius and susceptible of
Except where otherwise provided in this
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Convention, the normal baseline for measuring the 4. Straight baselines shall not be drawn to and
breadth of the territorial sea is the low-water line from low-tide elevations, unless lighthouses or
along the coast as marked on large-scale charts similar installations which are permanently above
officially recognized by the coastal State. sea level have been built on them or except in
instances where the drawing of baselines to and
Normal Baseline from such elevations has received general
It is the low-water line along the coast as marked on large- international recognition.
scale charts officially recognized by the coastal state. (Art.
5) 5. Where the method of straight baselines is
applicable under paragraph 1, account may be
There is no fixed or definitive method to determine the taken, in determining particular baselines, of
location of the low-water line. One way is to mark it on the economic interests peculiar to the region
lowest ebb tide or on the lowest astronomical tide. concerned, the reality and the importance of
Another way, as suggested in the Anglo-Norwegian which are clearly evidenced by long usage.
Fisheries Case, is to use the mean between the high and
low tides. 6. The system of straight baselines may not be
applied by a State in such a manner as to cut off
the territorial sea of another State from the high
seas or an exclusive economic zone.
Straight Baseline
It is used where the coastline is deeply indented and cut
into or if there is a fringe of islands along the coast in its
immediate vicinity, by joining the appropriate points of
these features using straight lines. (Art. 7 [1])
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Baselines for Mouths of Rivers 5. Where the distance between the low-water
marks of the natural entrance points of a bay
UNCLOS, Art. 9. exceeds 24 nautical miles, a straight baseline of
Mouths of rivers 24 nautical miles shall be drawn within the bay in
such a manner as to enclose the maximum area of
If a river flows directly into the sea, the baseline water that is possible with a line of that length.
shall be a straight line across the mouth of the
river between points on the low-water line of its 6. The foregoing provisions do not apply to so-
banks. called "historic" bays, or in any case where the
system of straight baselines provided for in
article 7 is applied.
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Fig.
Fig. (Magallona, 2005)
Baselines for Low-tide Elevations
If the bay has more than one mouth because of the
presence of islands: UNCLOS, Art. 13.
The baseline shall be drawn on a line as long as Low-tide elevations
the sum total of the lengths of the lines across
different mouths. 1. A low-tide elevation is a naturally formed area
of land which is surrounded by and above water at
low tide but submerged at high tide. Where a low-
tide elevation is situated wholly or partly at a
distance not exceeding the breadth of the
territorial sea from the mainland or an island, the
low-water line on that elevation may be used as
the baseline for measuring the breadth of the
territorial sea.
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such, a right of innocent passage as provided in Violation of freedom of maritime conference. Any state
this Convention shall exist in those waters. whose vessels enjoy a right to innocent passage in
territorial waters of another state also enjoys all the
Internal Waters, Defined freedom necessary for maritime navigation.
Internal waters are waters of lakes, rivers found within the
coastal state and those waters on the landward side of the To lay mines in the territorial waters of another state
baseline of a coastal state. during peacetime is an unlawful act. In addition, if a state
lays mines in any waters in which foreign vessels have
Coastal State Has Sovereignty rights of access or passage, and fails to give any warning or
Over these waters the coastal state has sovereignty as if it notification with regard to such mines, such state is in
were part of its land territory. This extends to the airspace breach of international law and acts against the freedom
over it and to its seabed and subsoil. of navigation and maritime commerce.
However, if through the use of the straight baseline (For a thorough treatment of the case, refer to p. 16)
method a coastal state is able to enclose as its internal
waters areas which were previously part of the territorial (*Note: The parts of the case concerning internal waters
sea (Art. 8 [2]) or straits used for international navigation are missing. A due search only produced excerpts from the
(Art. 35 [a]), the right of innocent passage continues to case relevant only to the contractual issues therein, and
exist in such “extended” internal waters. none on internal waters. Hence, no original discussion on
the matter could be included.)
CASE CONERNING MILITARY AND Harbors are internal waters, not territorial seas.
PARAMILITARY ACTIVITIES IN AND AGAINST CLASS NOTES
NICARAGUA (NICARAGUA v. UNITED STATES)
ICJ Reports 1986, p.14 (1986), supra.
MAGALLONA et.al. v. EXECUTIVE SECRETARY
(supra. For a more exhaustive discussion, refer to p. 6) G.R No. 187167 (2011)
Nicaragua alleges that the United States was in breach of Congress passed RA 9522, which amended the old
its obligation under general and customary international baselines law (RA 3046). The new law, passed under the
law in violating the sovereignty of Nicaragua. One of the pretense that there was a May 2009 deadline set by the
acts imputed by Nicaragua which are directly attributable UNCLOS to beat, “shortened one baseline, optimized the
to the United States is the alleged mining (i.e. laying of location of some basepoints around the Philippine
mines) of Nicaraguan ports and territorial waters, which archipelago and classified adjacent territories (Kalayaan
has destroyed 12 vessels, Nicaraguan and foreign alike. Group of Islands and Scarborough Shoal) as ‘regimes of
islands.’”
The laying of mines in the internal and territorial waters
of Nicaragua rendered the US in breach of its CIL Petitioners assailed the constitutionality of RA 9522.
obligations not to violate Nicaraguan sovereignty and not
to interrupt peaceful maritime conference. Petitioners: RA 9522 reduces the Philippine maritime
territory by discarding pre-UNCLOS
Evidence shows that the mining was authorized by US demarcations embracing the rectangular
President Reagan, and conducted under the supervision of area delineated by the Treaty of Paris and
US agents. other treaties (and encoded in the
Constitution);
Violation of Sovereignty. The laying of mines within the
ports of a state is governed by the law relating to internal
waters and subject to the sovereignty of the coastal state.
It is therefore that sovereignty which is affected. Such
operations not only constitute breaches of the principle of
non-use of force, but also constitute a violation of
Nicaragua’s sovereignty.
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TERRITORIAL SEA
UNCLOS, Art. 3.
Breadth of the territorial sea
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xxxx
UNCLOS, Art. 4
Outer limit of the territorial sea There is innocent passage if such passage is not prejudicial
to the peace, good order or security of the coastal state.
The outer limit of the territorial sea is the line
every point of which is at a distance from the Non-innocent passage. – Passage shall NOT be innocent if
nearest point of the baseline equal to the breadth a foreign ship, without the consent of the coastal state,
of the territorial sea. engages in any of the following acts while passing though
the territorial sea:
Territorial Sea, Defined a) any threat or use of force against the
It is a belt of sea adjacent to internal waters or archipelagic sovereignty, territorial integrity or political
waters, as the case may be, whose breadth extends up to independence of the coastal State, or in any
a limit not exceeding 12 nautical miles from a coastal other manner in violation of the principles of
state’s baselines. international law embodied in the Charter of the
United Nations;
b) any exercise or practice with weapons of any
kind;
c) any act aimed at collecting information to the
prejudice of the defense or security of the
coastal State;
d) any act of propaganda aimed at affecting the
defense or security of the coastal State;
e) the launching, landing or taking on board of any
aircraft;
f) the launching, landing or taking on board of any
military device;
Fig. (Magallona, 2005) g) the loading or unloading of any commodity,
currency or person contrary to the customs,
Coastal State Has Sovereignty fiscal, immigration or sanitary laws and
A coastal state’s sovereignty covers the territorial sea, regulations of the coastal State;
which extends to the airspace over the same as well as to h) any act of willful and serious pollution contrary
its bed and subsoil. (Art. 2 [2]) to this Convention;
i) any fishing activities;
Right of Innocent Passage j) the carrying out of research or survey activities;
Passage means navigation through the territorial sea for k) any act aimed at interfering with any systems of
the purpose of: communication or any other facilities or
a) Traversing that sea without entering internal installations of the coastal State;
waters; or l) any other activity not having a direct bearing on
b) Proceeding to or from internal waters. (Art. 18 passage. (Art. 19 [2])
[1])
Rights of protection for the coastal state. – A coastal state
Passage must be continuous and expeditious. But a ship is is given the following rights of protection with regard to
allowed to stop and anchor if: the right of innocent passage. It may:
a) Such anchoring or stopping is incidental to 1) Take necessary steps in its territorial sea to
ordinary navigation; or prevent non-innocent passage;
b) Rendered necessary on account of force majeure 2) Take measures to prevent any breach of the
or for the purpose of rendering assistance to conditions for the admission of ships to internal
persons, ships or aircraft in danger or distress. waters, with respect to ships proceeding to
(Art. 18 [2]) internal waters or ports or to ships calling at a
port facility outside internal waters; and
UNCLOS, Art. 19. 3) Suspend temporarily the innocent passage of
Meaning of innocent passage foreign ships in specified areas of the territorial
sea
1. Passage is innocent so long as it is not IF, such suspension is essential for the
prejudicial to the peace, good order or security of protection of its security
the coastal State. Such passage shall take place in Such suspension may take effect only
conformity with this Convention and with other after publication. (Art. 25)
rules of international law.
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Duties of a coastal state. – The coastal state must not In designating sea lanes and prescribing traffic schemes,
hamper the innocent passage of foreign ships. While it is the coastal state shall take into account:
given the right to enforce laws and regulations (infra.) a) Recommendations of the competent
relating to innocent passage, the coastal state is barred international organization;
from: b) Any channels customarily used for international
a) imposing requirements on foreign ships which navigation;
have the practical effect of denying or impairing c) Special characteristics of particular ships and
the right of innocent passage; or channels; and
b) discriminating in form or in fact against the ships d) Density of traffic.
of any State or against ships carrying cargoes to,
from or on behalf of any State. These must be clearly indicated on charts and given due
publicity. (Art. 22)
It is also the coastal state’s duty to give appropriate
publicity to any danger to navigation, of which it has Charges which may be levied on foreign ships. –
knowledge, within its territorial sea. (Art. 24) General Rule: No charge for passage.
Exception: Charges for payment of specific services
Laws and regulations by coastal state. – A coastal state rendered to the ship. (Art. 26)
may adopt laws and regulations relating to innocent
passage relating to any or all of the following: Exercise of criminal jurisdiction. –
a) the safety of navigation and the regulation of General Rule: Coastal State should NOT exercise
maritime traffic; criminal jurisdiction on board a foreign
b) the protection of navigational aids and facilities ship passing through the territorial sea to
and other facilities or installations; arrest any person or to conduct any
c) the protection of cables and pipelines; investigation in connection with any
d) the conservation of the living resources of the crime committed on board the ship
sea; during its passage.
e) the prevention of infringement of the fisheries Exceptions: a) if the consequences of the crime
laws and regulations of the coastal State; extend to the coastal State;*
f) the preservation of the environment of the b) if the crime is of a kind to disturb the
coastal State and the prevention, reduction and peace of the country or the good
control of pollution thereof; order of the territorial sea;*
g) marine scientific research and hydrographic c) if the assistance of the local
surveys; and authorities has been requested by
h) the prevention of infringement of the customs, the master of the ship or by a
fiscal, immigration or sanitary laws and diplomatic agent or consular officer
regulations of the coastal State. (Art. 21) of the flag State; or
d) if such measures are necessary for
The coastal state must give due publicity to such laws and the suppression of illicit traffic in
regulations. narcotic drugs or psychotropic
substances. (Art. 27 [1])
The coastal state may not apply law and regulations on the
design, construction, manning and equipment of foreign *For exceptions A and B, if the ship master so requests,
ships. the coastal state shall notify the diplomatic agent or
UNLESS, such laws and regulations only give consular officer of the flag state before taking any steps.
effect to generally accepted international rules (Art. 27 [3])
or standards. (Art. 21)
Article 27 also provides for particular situations:
Sea lanes and traffic separation schemes. – The coastal Ship passing though Coastal state has the
state, when necessary for the safety of navigation, may the territorial sea right to take any steps
require foreign ships exercising their right to innocent AFTER LEAVING authorized by its laws for
passage to use designated sea lanes or follow prescribed internal waters: the purpose of an arrest
traffic separation schemes. or investigation on
board. (Art. 27 [2])
Tankers, nuclear-powered ships and ships carrying nuclear Ship, proceeding Coastal state may not
or other inherently dangerous or noxious substances or from a foreign port, take any steps on board
materials may be required to confine their passage to sea passing through the to arrest any person or to
lanes designated by the coastal state. territorial sea conduct any investigation
WITHOUT in connection with any
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ENTERING internal crime committed before Belonging to the armed forces of a State bearing
waters: the ship entered the the external marks distinguishing such ships of
territorial sea. (Art. 27 its nationality;
[5]) Under the command of an officer duly
commissioned by the government of the State
Q: Which rule does the UNCLOS follow with respect and whose name appears in the appropriate
to criminal jurisdiction over acts committed service list or its equivalent; and
during innocent passage? Manned by a crew which is under regular armed
It seems that the UNCLOS per Art. 27 (1) (a) and (b), forces discipline. (Art. 29)
follows the French Rule – crimes committed aboard a
foreign merchant vessels should not be prosecuted in The coastal state may require any warship to leave the
the courts of the country within whose territorial territorial sea immediately if:
jurisdiction they were committed, unless their It does not comply with the laws and regulations
commission affects the peace and security of the of the coastal State concerning passage through
territory. the territorial sea; and
Disregards any request for compliance therewith
Exercise of civil jurisdiction. – A coastal state may not stop which is made to it. (Art. 30)
or divert a foreign ship passing through the territorial sea
for the purpose of exercising civil jurisdiction in relation to A warship’s flag state shall bear international responsibility
a person on board the ship. (Art. 28 [1]) for any loss or damage to the coastal state resulting from
the non-compliance by a warship or other government
It may likewise not levy execution against or arrest the ship operated for non-commercial purposes with the laws
ship for the purpose of any civil proceedings, except: and regulations of the coastal state concerning passage
1. with respect to obligations or liabilities assumed through the territorial sea or with the provisions of this
or incurred by the ship itself in the course or for Convention or other rules of international law. (Art. 31)
the purpose of its voyage through the waters of
the coastal State; (Art. 28 [2]) or
2. For the purpose of any civil proceedings, a THE GULF OF SIDRA INCIDENT
foreign ship lying in the territorial sea, or passing
through the territorial sea after leaving internal
waters. (Art. 28 [3])
Submarines,
Navigate on the surface; and
Underwater
Show their flag (Art. 20)
Vehicles
Foreign nuclear-
powered ships, and Carry documents; and
ships carrying The Gulf of Sidra is a maritime area situated north of Libya
Observe special precautionary
nuclear or other covering an area of 22,000 sq. mi. In 1973, the Libyan
measures established for such
inherently government announced that the Gulf of Sidra is an integral
ships by international
dangerous or part of the Libyan Arab Republic, with sovereignty thereon
agreements (Art. 23) having been exercised through history, and thus it
noxious substances
constituted internal waters. It proceeded to delimit its
claimed territorial waters by drawing the gulf’s closing line
Q: Are warships allowed innocent passage through
the territorial sea? 300 miles across its mouth, with the warning that any
foreign vessel that would breach the line without
Yes. The right to innocent passage pertains to all authorization would be in violation of Libyan sovereignty.
ships, including warships. UNCLOS lays down in Further, it claimed that its 12mi territorial sea limit was to
Articles 29-32 special rules applicable only to be reckoned from this line. This position has led to several
warships and other government ships operated for incidents involving US ships.
non-commercial purposes. (infra)
Libya: The gulf is a “historic bay” over which
Rules on warships. - A "warship" means a ship: Libya has exercised sovereignty through
history. As such, the Gulf’s closing line
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Gulf of Sidra is not a historic bay, and waters within it are In a 1947 decision (United States v. California, 332 US 804),
not internal waters. It may not validly restrict access the Court granted the US Federal government dominion
thereto. over submerged lands and mineral rights underlying the
Pacific Ocean beyond 3 nautical miles seaward from the
UNCLOS lays down rules on for a body of water to be ordinary low water mark of the coast of California. Areas
properly considered as a bay (i.e. semi-circle test, supra.). within the 3 mile belt would constitute internal waters of
An exception to this requirement is if a body of water is a the state, and those without would constitute federal
“historic bay”. (UNCLOS, Art. 10 *6+) waters.
Claims to historic waters in general are relics of an older This was followed by a 1965 (United States v. California,
and by now a largely obsolete legal regime, and the 381 US 139) decision which included bays and other
international community has firmly rejected any attempts coastal features which satisfied the semi-circle test (supra.
to establish any new maritime claims. Such claims p. 37) as well as historic bays as part of internal waters of
encroach on what would otherwise be considered the California.
common domain of the international community and
would hence deprive the international community of This 1966 decision is a supplemental decree, which held
certain portions of the high seas. that the subsoil and seabed of the continental shelf:
Within 3 nautical miles seaward, from the COASTLINE
In the instant case, Libya drew a 300 mile closing line at of California (not just from the low water mark as in
the mouth of the gulf, well exceeding the 24mi limit set by the 1947 decision) – appertains to CALIFORNIA; and
the UNCLOS., under the premise that the gulf fell under Those beyond 3 nautical miles – appertains to the
the “historic bay” exception. However, this claimed UNITED STATES.
exception must fail because Libya has failed to offer any
evidence to substantiate its claim of historical sovereignty The Court made use of the following definitions:
over the gulf. In fact, prior to 1973, it did not claim the gulf
as a historic bay. Neither is their mention of the Gulf in the Coastline
survey of historic bays conducted by the UN. - Line of mean lower low water on the mainland,
islands, and on low tide elevations within 3
As such, the acts of Libya in restricting access to the waters geographic miles from the line of mean lower low
of the gulf beyond 12mi from its coast (not the Libyan- water; or
drawn closing line) constitutes illegal interference of
international navigation and is incompatible with the - Line marking seaward limit of inland waters; and
international legal regime of the high seas. - Includes outermost permanent harbour works that
form an integral part of harbour system.
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The average elevation of all high tides The “Inland Water Line” shall be drawn in accordance
with the definitions of the ICTS.
Inland Water
Waters landward of the baseline of the territorial sea, The ICTS definition of the “inland water line” provides:
which are recognized as internal waters of the US under "The line of ordinary low water along that
the Convention on the Territorial Sea and the Contiguous portion of the coast which is in direct contact
Zone: with the open sea and the line marking the
a) Any river or stream flowing directly into the sea, seaward limit of inland waters."
landward of a straight line across its mouth;
b) Any port, landward of its outermost permanent The case also proceeds to consider whether certain
harbour works and a straight line across its features of Louisiana coastal features or artificial works fell
entrance; within the term “inland waters.” To wit:
c) Any “historic bay”, over which the US has
traditionally asserted and maintained dominion Dredged NOT INLAND WATERS.
with the acquiescence of foreign nations; Channels The permanent harbor works contemplated
d) Any other bay which satisfies the semi-circle test. leading to are "raised structures" and "installations"
(supra) inland which were "part of the land" and which, in
harbors: some sense enclosed and sheltered the
This case was decided before UNCLOS. waters within.
Historic Historic bays are not defined in the
The importance of this case is the definitions of terms Bays: Convention. The national government, may,
used in maritime delimitation that it provides. if it chooses, rely on State action to support
CLASS NOTES its own historic claim as against other
nations. But, a State cannot oblige it to do so
or accept State action as binding in a
UNITED STATES v. LOUISIANA domestic case such as the present one
394 US 11 (1969)
In a previous case between U.S. vs. Louisiana, the Court STRAITS AND TRANSIT PASSAGE
held that based on the Submerged Lands Act of 1953, U.S.
quitclaimed to Louisiana the lands underlying the Gulf of Straits, In General
Mexico within 3 geographical miles of the coastline. In that It is a comparatively narrow passageway connecting two
Act, the coast line was defined as the “line marking the large bodies of water. (Merriam-Webster’s 11th Collegiate
seaward limit of inland waters”. Dictionary, 2003)
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shall not be impeded; except that, if the strait is the regime of freedom of navigation will come
formed by an island of a State bordering the strait into play)
and its mainland, transit passage shall not apply if Strait connects the high seas or exclusive
there exists seaward of the island a route through economic zone with the territorial sea of a third
the high seas or through an exclusive economic (foreign) state; (Art. 45 [1b])
zone of similar convenience with respect to Strait is formed by an island of a State bordering
navigational and hydrographical characteristics. the strait and its mainland, and there exists
seaward of the island a route through the high
2. Transit passage means the exercise in seas or through an EEZ of similar convenience.
accordance with this Part of the freedom of (Art. 38 [1])
navigation and overflight solely for the purpose of
continuous and expeditious transit of the strait
between one part of the high seas or an exclusive Illustrations. –
economic zone and another part of the high seas
or an exclusive economic zone. However, the
requirement of continuous and expeditious transit
does not preclude passage through the strait for
the purpose of entering, leaving or returning from
a State bordering the strait, subject to the
conditions of entry to that State.
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through the strait using high sea/EEZ waters by invoking Authorization for research and survey activities. – Prior
freedom of navigation (“constituting a route of similar authorization from the bordering states is required for
convenience”), eliminating the need to use transit passage. foreign vessels, including marine scientific research and
hydrographic survey ships, to carry out any research and
Duties of states bordering straits used for international survey activities during transit passage. (Art. 40)
navigation. – Bordering states have the following
obligations under the regime of transit passage: Sea lanes and traffic separation schemes. – Bordering
Not to impede or hamper transit passage; (Art. states may designate sea lanes and prescribe traffic
38 [1]; 44) separation schemes for navigation in straits where
Give appropriate publicity to any danger to necessary to promote the safe passage of ships. (Art. 41
navigation or overflight within or over the strait [1]) They shall:
of which they have knowledge. (Art. 44) Such schemes shall conform to generally
accepted international regulations; (Art. 41 [3])
No suspension of transit passage. – Unlike in innocent and
passage (supra, p. 41), transit passage cannot be Must be indicated on charts and given due
suspended unilaterally. (Art. 44) publicity. (Art. 41 [6])
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(supra. For a discussion on the other aspects of the The allegation that the Royal Navy ships’ conduct
decision, refer to p.15) threatened Albanian security is without basis. The ships
passed through the channel in a straight line formation,
(The following discussion pertains to the first of three and guns were not loaded in in proper stowage position. It
incidents in the Corfu Channel, i.e. Albania prohibited Royal was only when the mines exploded (second incident) that
Navy ships from passing through Corfu Channel and the the group went into combat formation, which was a
former fired on the latter during passage.) natural reaction thereto.
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1) Within such baselines, the main islands must be All ships and aircraft are entitled to this right. (Art. 53.2)
included and an area in which the ratio of the These include warships and submarines. Navigation of
area of the water to the area of the land, such ships is meant to be in “normal mode”; as such,
including atolls is between 1:1 and 9:1; (ibid.) submarines need not surface (unlike in innocent passage.)
2) Baselines shall not exceed 100 nautical miles;
(Art. 47 [2]) No suspension of archipelagic sea lanes passage. – Like in
3) Baselines drawn shall not depart to any transit passage (supra, p. 47), archipelagic sea lanes
appreciable extent from the general passage cannot be suspended unilaterally. (Art. 54,
configuration of the archipelago; (Art. 47 [5]) applying 44)
(Refer to Art. 47 for other limitations)
Archipelagic sea lanes passage may not suspended by
The breadths of the following maritime zones are the archipelagic state. This differs from the right of
measured from the archipelagic baselines: temporary suspension granted to archipelagic states
Territorial sea with respect to right of innocent passage over
Contiguous zone archipelagic waters.
Exclusive economic zone CLASS NOTES
Continental shelf (Art. 48)
Designation of sea lanes and air routes. – It is the
Archipelagic Waters archipelagic state that designates sea lanes and air routes,
This refers to the waters enclosed by the archipelagic and prescribes traffic separation schemes, subject to the
baselines, regardless of their depth or distance from the approval of a competent international organization (i.e.
coast. (Art. 49 [1]) International Maritime Organization). (Art. 53 [9])
Archipelagic State Has Sovereignty If the archipelagic state does not designate such lanes or
The sovereignty of the archipelagic state extends to the routes, ships and aircraft may exercise the right through
archipelagic waters, its superadjacent airspace, bed and the routes normally used for international navigation. (Art.
subsoil, and the resources contained therein. (Art. 49 [1; 2]) 53 [12])
Right of Innocent Passage over Archipelagic Waters Application of Rules of Transit Passage. – The rules of
Ships of all states have the right of innocent passage transit passage governing the following apply to
through archipelagic waters as it applies to territorial seas archipelagic sea lanes passage: (Art. 54)
(supra. p. 47). (Art. 52) Duties of vessels in transit passage (Art. 39) (supra. p.
47)
Right may be suspended. – the archipelagic state may Authorization for research and survey activities (Art.
temporarily suspend the right of innocent passage subject 40) (supra. p. 47)
to the following conditions: Laws and regulations by coastal state. (Art. 42)
1. only with respect to specified areas of the (supra. p. 47)
archipelagic waters; Duties of states bordering straits used for
2. if it is essential for the protection of the security of international navigation. (Art. 44) (supra. p. 47)
the state; and
3. without discrimination among foreign ships. (Art. 52 Q: How does archipelagic sea lanes passage differ
[2]) from transit passage?
Archipelagic Sea Lanes Transit Passage
Note that what can be suspended is the right of
Passage
innocent passage over archipelagic waters, NOT the
right of archipelagic sea lanes passage. Navigation; Overflight
CLASS NOTES Purpose of continuous, expeditious and unobstructed
transit
Right of Archipelagic Sea Lanes Passage Submarines in normal mode
It is the right of all foreign ships and aircraft to have Cannot be suspended
continuous, expeditious and unobstructed passage in Over archipelagic waters Over straits used for
designated sea lanes and air routes through or over and superadjacent airspace international navigation
archipelagic waters and the adjacent territorial sea of the and superadjacent airspace
archipelagic state, (Art. 53 [1]) Sea lanes/traffic separation Sea lanes/traffic separation
schemes subject to IO schemes subject to IO
Such passage contemplates “transit between one part of adoption and agreement adoption and agreement
the high seas or an EEZ and another part of the high seas between IO and among bordering states
or an EEZ.” (Art. 53 *3+) archipelagic state
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PUBLIC INTERNATIONAL LAW A2015
Other Rights With Respect to Archipelagic Waters Protective Jurisdiction; Not Sovereignty
Rights under existing agreement on the part of the A coastal state does not have sovereignty over the
third states should be respected by the archipelagic contiguous zone, and instead may only exercise
state; (Art. 51 [1]) jurisdiction for particular purposes laid down by UNCLOS.
Archipelagic state shall recognize traditional fishing
rights and other legitimate activities of the Such protective jurisdiction may only be exercised by the
immediately adjacent neighboring states; and (Art. coastal state for:
51 [1]) a) Prevention of infringement, and
Respect existing submarine cables laid by other b) Punishment of infringement of customs, fiscal,
States and passing through its waters without immigration or sanitary laws and regulations.
making a windfall. (Art. 51 [2]) (Art. 19)
UNCLOS rules on archipelagos and archipelagic The concept of the Contiguous Zone was based on
waters present significant concerns for the the historical extent of a coastal state’s sovereignty is
Philippines: that “within the reach of a cannonball.” This exercise
It reduces Philippine territorial waters to 12 of limited protective jurisdiction was deemed
nautical miles from the archipelagic necessary in order to combat smuggling.
baselines (from all the waters within the CLASS NOTES
baselines under the RA 3046 or the old
baselines law)
Philippine archipelagic waters are subjected CONTINENTAL SHELF
to archipelagic sea lanes passage, which
conflicts with the Philippine Constitution’s UNCLOS, Art. 76.
treatment of such waters as “internal Definition of the continental shelf
waters of the Philippines,” (which precludes
the application of innocent passage). 1. The continental shelf of a coastal State
comprises the seabed and subsoil of the
These objections were passed upon by the Supreme submarine areas that extend beyond its territorial
Court in the case of Magallona v. Executive Secretary. sea throughout the natural prolongation of its land
(supra., p. 39) territory to the outer edge of the continental
CLASS NOTES margin, or to a distance of 200 nautical miles from
the baselines from which the breadth of the
territorial sea is measured where the outer edge of
CONTIGUOUS ZONE the continental margin does not extend up to that
distance.
UNCLOS, Art. 19.
Contiguous zone
Continental Shelf, Defined
It is the seabed and subsoil of the submarine areas
1. In a zone contiguous to its territorial sea,
extending beyond the territorial sea of the coastal state
described as the contiguous zone, the coastal State
throughout the natural prolongation of its land territory
may exercise the control necessary to:
up to:
a) prevent infringement of its customs, fiscal,
1) A distance of 200 nautical miles from the
immigration or sanitary laws and regulations
baselines of the territorial sea where the outer
within its territory or territorial sea;
edge of the continental margin does not extend
b) punish infringement of the above laws and
up to that distance; OR
regulations committed within its territory or
2) The outer edge of the continental margin.
territorial sea.
Continental Margin
2. The contiguous zone may not extend beyond 24
It is the submerged prolongation of the land mass of the
nautical miles from the baselines from which the coastal state, consisting of the:
breadth of the territorial sea is measured.
Continental Shelf Proper
Continental Slope
Contiguous Zone, Defined
Continental Rise (Art. 76 [3])
It is a maritime zone adjacent to the territorial sea where
the coastal state may exercise protective jurisdiction,
Re: 1)
whose breadth extends up to a limit not exceeding 24
nautical miles from a coastal state’s baselines.
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continental shelves. This provision sets the goal to be line from the low-water marks of the Libyan and Maltese
achieved, but is silent as to the method to be used. coasts which constitutes the provisional first step.
Libya’s rift-zone argument was rejected. The court noted Next, the Court used the following relevant circumstances
that according to the UNCLOS, a state is entitled to claim a for the purpose of adjusting the provisional line in order to
continental shelf of up to 200 nautical miles, irrespective arrive at an equitable result:
of the outer limit of the continental margin. Geophysical Coastal lengths of parties; – The relevant portion of
factors only come into play when the continental margins the coast of Libya 192 miles long, while Malta’s is
exceed 200 nautical miles. In the instant case, the distance only 24 miles. This difference is so great as to justify
from the Libyan to the Maltese coasts does not exceed the adjustment of the median line closer to Malta;
400 nautical miles; hence each state’s claim cannot exceed Distance between the coasts;
200 nautical miles each. Thus, the situation where Placement of basepoints governing any equidistance
geophysical factors (e.g. rift zones) can terminate the line;
extent of claims does not arise. General geographical context.
The principle of proportionality of coastlines as advanced The court thus arrived at the following delimitation line, as
by Libya is not a general principle providing an illustrated:
independent source of rights to areas of a continental
shelf. It is only one of several factors that could be used as
a means of correcting inequitable effects produced by
particular geographical features in a delimitation. It should
not be used on its own.
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The Court does not have jurisdiction over the case; hence. UK: Technical issue: the chart provided for in
it declined to rule on the continental shelf issue. and the dispositif of the 1977 decision
ignored certain basepoints that should be
While the Court refused to rule on the substantive sued in drawing the median/equidistance
issues of the case, the controversy nonetheless line; hence it did not reflect description in
presents an interesting case of continental shelf the decision itself, which must be corrected.
delimitation. This issue remains unresolved to this France: The mistake is but a minor inconsistency
day. which can be ignored;
The dispositif must be followed;
Siding with Greece would significantly diminish modification is not allowed.
Turkey’s rights to the Aegean given their geographical
proximity. Siding with Turkey would deprive Greek The changes may be effected; the boundary should be
islands of its waters. rectified so as to take account of the base-points
previously not taken into account.
Sir’s proposed solution: Give Turkey its continental
shelf, but leave small pockets of water as Greek Parties agree that there is a discrepancy in the drawing of
territorial seas. the boundary. It was a material error which the court has
the power to rectify. The court left it to the parties to
The Portico Doctrine in the Eritrea-Yemen Arbitration effect a correction consistent with the decision.
Case (supra., p. 31) can find application here. (Karichi
Notes, citing Prof. Roque, 2010) Court proceeded to discuss the actual delimitation of the
CLASS NOTES continental shelf.
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adopted has been some modification or variant of the zone/continental shelf extending up to
equidistance principle rather than its total rejection. Here 200 nautical miles from the coast of
the problem also arises precisely from the distorting effect Greenland; a single delimitation line
of a geographical feature in circumstances in which the should be drawn for the purpose.
line equidistant from the coasts of the two States would Norway: A median line drawn from equidistant
otherwise constitute the appropriate boundary. (Karichi points between Greenland and Jan Mayen
Notes, 2010) (e.g. in this case, British islands lying within is the proper boundary.
the French side of the equidistance line)
Half-effect. – This method consists in delimiting the line The Court found that there was no agreement between
equidistant between the two coasts, first, without the use the parties to draw a single line for the delimitation of
of the offshore island as a base-point, and, secondly, with their fisheries zone and continental shelf boundaries.
its use as a base-point; a boundary giving half-effect to the Hence, it proceeded to examine the boundaries separately.
island is then the line drawn midway between those two
equidistance lines. For the continental shelf delimitation, the Court found the
1958 Geneva Convention to be the applicable law, while
In order to effect these principles, the Court divided the the fishery zone shall be governed by the relevant
delimitation into two steps: customary law. Also, the court said that special or relevant
1. First, determine the median/equidistant line circumstances, pursuant to the 1958 Geneva Convention
between the opposing states reckoned from and to customary law shall be considered, to the effect
their coasts, ignoring the special geographical that the shifting of the provisionally drawn median line is
features (e.g. islands); then required.
2. Second, delimit a second boundary line, taking
into consideration the special geographical In drawing the delimitation, the following circumstances
features were taken into account:
the disparity of length of coasts;
It is the line drawn midway between those the access to fishery resources.
boundary lines which would give half-effect. The Court did not consider population, socio-economic
factors, and the conduct of the Parties.
“Method of half-effect = proceed first as if the island
doesn’t exist, then shift the lines.” (ibid.) The result thus reached by the Court was that the median
line between the coasts shifted in the direction of Jan
This case was “a delimitation in a delimitation.” Mayen - but not as far as reaching the 200 nautical miles
CLASS NOTES line measured from the coast of Greenland - constituted
the line to be drawn in this case. Although Norway was of
the opinion that the actual line was to be drawn by the
CASE CONCERNING MARITIME DELIMITATION Parties on the basis of the decision of the Court, the Court
IN THE AREA BETWEEN GREENLAND AND JAN considered its task only fulfilled after having drawn the
MAYEN (DENMARK v. NORWAY) concrete line. Accordingly, the Court fixed the line in the
ICJ Reports 1993, p. 38 (1993) region situated between the median line and the 200
miles-line by dividing this region into three sectors and
taking into account the relevant circumstances, in
This case is a dispute regarding the extent of the
particular the access to the fishery resources.
continental shelves of Denmark and Norway in the area
between Greenland (Danish) and the island of Jan Mayen
(Norwegian).
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Saint Pierre & Miquelon are two French islands close to the
Canadian coast. The trigger of this case is the issuing by
the two parties of hydrocarbon exploration permits in the
area, with both contending that the other did not have the
right to do so.
France: Delimitation of the continental shelf shall CASE CONCERNING PEDRA BRANCA/PULAU
be based on the equidistance principle; BATU PUTEH, MIDDLE ROCKS AND SOUTH
Canada: Special circumstances rule should be LEDGE (MALAYSIA v. SINGAPORE)
applicable.
(*Note: This may be the wrong case. The outline lists
“Malaysia v. Singapore” under the topic “Continental Shelf”
The question on which method of delimitation shall be
without any accompanying citation. Upon asking Prof.
applied is determined primarily by the geographical
Roque for a citation, he said “Whatever you can find.” And
circumstances – but rules on international law as well as
this case was the only one we could find.)
equitable principles must also be taken in consideration in
order to add relevance and weight to the geographical
This case relates to the dispute concerning territorial
circumstances.
sovereignty over three maritime features in the Straits of
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Singapore. At the eastern entrance of the Strait of with the consent conferred by the Sultan of Johor and the
Singapore is a granite island called Pedra Branca. Temenggong in November 1844; and that they were not
actions intended to acquire sovereignty over Pedra Branca.
In 1979, Malaysia published a map entitled “Territorial By contrast, Singapore contended that the United
Waters and Continental Shelf Boundaries of Malaysia.” Kingdom acquired title to the island in the period of 1847-
The map depicted the island of Pedra Branca as lying 1851 by taking lawful possession of the island in
within Malaysia’s territorial waters. This was rejected by connection with building the lighthouse on it. Note that
Singapore who requested Malaysia to correct the map. In the Court did not draw any conclusions about sovereignty
effect, the Court considered as the critical date the time of on the basis of the construction and commissioning of the
Singapore’s protest in response to Malaysia’s publication lighthouse. Thus, the central question is whether the
of the 1979 map. conduct of the Parties after the construction of the
lighthouse on Pedra Branca provides a basis for the
Singapore argued that the legal status of Pedra Branca was passing of sovereignty over the island from Johor to the
that of terra nullius, Malaysia maintained that it had an United Kingdom, Singapore’s predecessor.
original title to Pedra Branca of long standing. Thus, an
arising question was whether Malaysia has established its The Court recalled the position of the Acting Secretary of
claim over the island. In this respect, a principal issue State of Johor in 1953 that Johor did not claim ownership
relates to the question whether the Sultanate of Johor—a of Pedra Branca. According to the Court, “*t+hat statement
predecessor of Malaysia—had sovereignty over Pedra has major significance.” The Court also stressed that the
Branca. conduct of the United Kingdom and Singapore includes
acts à titre de souverain; and that Malaysia and its
The Court, through the pieces of evidence considered, predecessors did not respond in any way to that conduct.
held that from at least the 17th century until in the 19th In addition to this, the Johor authorities and their
century it was acknowledged that the territorial and successors took no action at all in respect to the island
maritime domain of the Kingdom of Johor comprised a from June 1850 for the whole of the following century or
considerable portion of the Malaya Peninsula, straddled more. Overall, the Court considered that the relevant facts
the Straits of Singapore and included islands and islets in reflect “a convergent evolution” of the positions of the
the area of the Straits. Thus, such domain included the Parties concerning title to Pedra Branca. Hence, the Court
area where Pedra Branca is located. concluded, by twelve votes to four that by 1980
sovereignty over Pedra Branca had passed to Singapore.
The Court also noted the fact that throughout the entire
history of the old Sultanate of Johor, there is no evidence
that any competing claim had ever been advanced over ARIGO v. EXECUTIVE SECRETARY
the islands in the area of the Straits of Singapore. Hence, (PETITIONERS’ PLEADING)
the Court concluded that the Sultanate of Johor had supra.
original title to Pedra Branca. In addition, the Court found
that the nature and degree of the Sultan of Johor’s (For an exhaustive discussion, refer to p. 27)
authority exercised over the Orang Laut—“the people of
the sea” who were engaged in various activities in the
waters in the Straits of Singapore—confirms the ancient
original title of the Sultanate of Johor to islands in the EXCLUSIVE ECONOMIC ZONE
Straits of Singapore, including Pedra Branca.
UNCLOS, Art. 55.
The next issue is whether Malaysia has retained Specific legal regime of the exclusive economic
sovereignty over Pedra Branca or whether the sovereignty zone
has since passed to Singapore. Singapore claims that it
acquired sovereignty over Pedra Branca in 1844 when it The exclusive economic zone is an area beyond
constructed a lighthouse on the island as well as various and adjacent to the territorial sea, subject to the
other activities. This contention then brought the Court to specific legal regime established in this Part, under
examine the conduct of the Parties relating to Pedra which the rights and jurisdiction of the coastal
Branca. State and the rights and freedoms of other States
are governed by the relevant provisions of this
In this context, an important element is the construction Convention.
and commissioning of Horsburgh lighthouse on Pedra
Branca by the United Kingdom between 1850-1851. UNCLOS, Art. 57
Malaysia argued that the conduct of the United Kingdom Breadth of the exclusive economic zone
and Singapore related only to the construction and
commissioning of the lighthouse and later operating it The exclusive economic zone shall not extend
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beyond 200 nautical miles from the baselines from the living resources are not endangered by over-
which the breadth of the territorial sea is exploitation; (Art. 61)
measured. Optimum Utilization. – Duty to promote the
objective of optimum utilization of the living
Exclusive Economic Zone, Defined resources and, to this end, to determine the
It is an area beyond and adjacent to the territorial sea, not allowable catch of such resources in relation to
extending beyond 200 nautical miles from the baselines. its capacity to harvest the allowable catch. (Art.
62)
Coastal State Has Sovereign Rights and Jurisdiction;
Not Sovereignty Conservation. – The coastal state’s objectives with regard
The coastal state does not have full sovereignty over the to conservation are as follows:
EEZ (c.f. internal waters, territorial sea), but instead Determination of the allowable catch of living
possesses limited sovereign rights and jurisdiction. resources; (Art. 61 [1])
o Allowable catch: catch in any one year
Sovereign rights. – Its sovereign rights are limited to the which will best achieve the objectives
following purposes: of the coastal state’s conservation
Exploring and exploiting, conserving and objectives
managing the natural resources o No limit; except by the duty not to
o living or non-living; overexploit.
o in the superadjacent waters of the Maintenance of the living resources in such a
seabed, the seabed and its subsoil; way that they are not endangered by over-
o excluding sedentary species (Art. 68) exploitation; (Art. 61 [2])
Other activities for the economic exploitation Maintenance or restoration of population of
and exploration of the zone. (e.g. production of harvested species at levels which can produce
energy from the water, currents and winds) (Art. the maximum sustainable yield; and (Art. 61 [3])
56 [1a]) Maximum sustainable yield: level of
harvesting a species of fish which can be
Jurisdiction. – It has jurisdiction with regard to: taken at a maximum from year to year
The establishment and use of artificial islands, without depleting the stock.
installations and structures; Maintenance of associated or dependent species
Marine scientific research; and above levels at which their reproduction may
Protection and preservation of the marine become seriously threatened. (Art. 61 [4])
environment. (Art. 56 [1b])
Utilization. – The coastal state must determine its capacity
Enforcement measures. – It has the right to enforce all to harvest the living resources in the EEZ.
laws and regulations enacted for the conservation and
management of living resources in the EEZ. It may: In the event that it does not have the capacity to harvest
Board and inspect a ship the entire allowable catch, it shall give other states access
Arrest a ship and its crew;* and to the surplus of the allowable catch by means of UNCLOS-
Institute judicial proceedings against them.* (Art. consistent agreements and arrangements. (Art. 62 [2]) In
73 [1]) doing so, the following factors shall be considered:
*Flag state must be promptly notified of action taken and Its own economic and other national interests;
penalties imposed. Requirements of developing states in the region;
The need to minimize economic dislocation in
Arrested vessels and their crews shall be promptly States whose nationals have habitually fished in
released upon the posting of bond or security. (Art. 73 [2]) the EEZ or which have made substantial efforts
in the research and identification of stocks in the
In the absence of agreement to the contrary by the states EEZ. (Art. 62 [3])
concerned, coastal state penalties for violations of
fisheries laws in their EEZ may not include imprisonment In allowing other states access to living resources, the
or any other form of corporal punishment. (Art. 73 [3]) coastal state may regulate the following matters:
a) Licensing of fishermen, fishing vessels and
Conservation, Utilization and Management of equipment, and the payment of fees;
Living Resources within the EEZ b) Determination of species which may be caught,
The coastal state has the following primary responsibilities and fixing quotas of catch;
with regard to the living resources within the EEZ; c) Regulation of seasons and areas of fishing, the
Conservation. – Duty to ensure through proper types, sizes and amount of gear and fishing
conservation and management measures that vessels that may be used;
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Saiga supplied gas oil to fishing vessels located in waters French authorities in the EEZ of the Crozet Islands arrested
near Guinea. Later, when the vessel was near the southern “Camouco”, a Panamian vessel for long-line bottom fishing
limit of Guinea’s EEZ, Guinean authorities attacked and of Patagonian toothfish in South Atlantic international
arrested the Saiga and its Master and crew, on the ground waters. The Camouco’s Master was charged unlawful
that it illegally imported oil within the Guinean customs fishing in the Crozet islands’ EEZ and put under court
radius in violation of its laws. supervision at Saint-Denis (French territory).
St. Vincent Art. 56 of the Convention does not give A local French court confirmed the arrest of the Camouco
and the the right to Guinea to extend the and its master. It also ordered a bond in the amount of
Grenadines: application of its customs laws and 20,000,000 Francs to be paid for the release of the vessel.
regulations to its EEZ; The Camouco’s owner subsequently appealed this decision.
Guinea violated its rights to enjoy the
freedom of navigation or other This prompted Panama to bring an action before the
internationally lawful uses of the sea in International tribunal for the Law of the Sea.
the EEZ, since the supply of gas oil by
the Saiga falls within the exercise of Panama: Camouco and its Master should be
those rights. promptly released upon payment of a
Guinea: Expansion of jurisdiction in EEZ is bond, pursuant to Art. 292 of the UNCLOS;
justified on the ground of public interest France failed to notify them of the arrest.
and self-protection; The bond price set by France was
Customary international law principle of unreasonable
“public interest” and “necessity” gives it France: Panama has not yet paid the bond; hence
the power to impede “economic it cannot invoke Art. 292 yet;
activities that are undertaken in its EEZ Panama should first exhaust its remedies
under the guise of navigation. before French courts;
Bond amount was reasonable.
By applying its customs laws to a customs radius which
includes parts of the EEZ, Guinea acted in a manner Posting of the bond not a precondition for Art. 292
contrary to the Convention. invocation.
Posting of a bond or other security is not necessarily a
While a coastal state has the right to enforce customs laws precondition for filing an application under Art. 292. There
and regulations in the territorial sea and the contiguous may be violations of the Art. 292 even before the payment
zone, such right is qualified with respect to its Exclusive of the bond. In this case, the unreasonable bond amount
Economic Zone (EEZ). In its EEZ, the coastal state has imposed by French courts was a cause for which reason
jurisdiction to apply customs laws and regulations only Panama can invoke Art. 292.
with respect to artificial islands, installations and
structures (Art. 60, par. 2). The Convention does not No need to exhaust local remedies
empower a coastal State to apply its customs laws in Moreover, local remedies need not be exhausted in order
respect of any other parts of the exclusive economic zone to file an application because Art. 292 is intended to
not mentioned above. provide for an independent remedy within a short period.
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Art. 292 is designed to free a ship and its crew from entitled to extend its territorial sea
prolonged detention on account of the imposition of beyond the median line, every point of
unreasonable bonds in municipal jurisdictions, or the which is equidistant from the nearest
failure of local law to provide for release on posting of a points on the baseline from which the
reasonable bond, inflicting thereby avoidable loss on a breadth of the territorial sea is
ship owner or other persons affected by such detention. measured.
Furthermore, it safeguards the interests of a coastal State
by providing for release only upon the posting of a Exception: Equidistance rule shall not apply and a
reasonable bond or other financial security determined by different delimitation is required in the
a court or tribunal referred to in Art. 292, without following cases:
prejudice to the merits of the case in the domestic forum Historic title;
against the vessel, its owner or its crew. Other special circumstances. (Art.
15)
Bond demanded by France was excessive; should only be 8
million Francs Rules on Delimitation of EEZ and the Continental
The value of the vessel alone may not be a controlling Shelf between Adjacent or Opposite States
factor in the determination of the bond, the overall Rule: By agreement among states on the basis
circumstances of the case must be considered. of international law “in order to achieve
an equitable solution”;
The 20 million-Franc demand was found unreasonable.
Instead, the tribunal set the bond in the amount of 8 In the absence of agreement, matter
million Francs. shall be subject to UNCLOS dispute
settlement measures (infra.)(Arts. 74, 83)
“Mustn’t submit vessels guilty of illegal fishing to
incarceration, but must promptly release them upon Negotiations must be meaningful. – Parties must enter
the posting of a cash bond.” (Karichi Notes, citing into negotiations with a view of arriving at an agreement.
Prof. Roque, 2010) They should not insist on their own positions, such that
the engagement amounts to mere compliance with a
Art. 292 is an independent remedy that requires no formal requisite.
exhaustion of local remedies.
CLASS NOTES Duty to make provisional arrangements pending
agreement. – Pending a final agreement, parties shall
make every effort to enter into provisional arrangements
which shall govern their conduct. They must refrain from
DELIMITATION OF MARITIME
acts which jeopardize or hamper efforts toward a final
BOUNDARIES agreement. (Art. 74 [3]; 83 [3])
Delimitation, Defined Dispute Settlement Procedures
Delimitation is a process which involves establishing the When no agreement is reached by the parties with regard
boundaries of an area already, in principle, appertaining to to territorial sea, EEZ and continental shelf boundary
the coastal state. It is not the determination de novo of limitations, the following shall be done:
such an area (i.e. not created out of nothing); rather, it is a Reference to third-party settlement of disputes
process of drawing a boundary line between areas which under Part XV of UNCLOS;
already appertain to one or other of the states affected. If the state declares an exception to acceptance of
(North Sea Continental Shelf Case, supra., p. 7) UNCLOS dispute settlement procedures under Article
298, and the dispute arises subsequent to the entry
It always has an international aspect; it cannot be of force of UNCLOS and there is no agreement
dependent merely upon the will of the coastal state as between parties – dispute shall be submitted to a
expressed in its municipal law. Its validity is hinged on conciliation commission, which shall come up with a
international law. (Anglo-Norwegian Fisheries Case, supra., non-binding report on the basis of which the parties
p. 8) shall negotiate an agreement;
If they still fail to reach an agreement, they are
Rules on Delimitation of the Territorial Sea
required to submit the dispute to a third-party
between States with Opposite or Adjacent Coasts
compulsory procedure (e.g. ICJ, ITLOS, arbitral
General Rule: Left to the agreement between opposite
tribunals)
or adjacent coasts;
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land-locked States shall enjoy freedom of transit Where there are no means of transport in transit States to
through the territory of transit States by all means give effect to the freedom of transit or where the existing
of transport means, including the port installations and equipment, are
2. The terms and modalities for exercising freedom inadequate in any respect, the transit States and land-
of transit shall be agreed between the land-locked locked States concerned may cooperate in constructing or
States and transit States concerned through improving them. (Art. 129)
bilateral, subregional or regional agreements.
Measures to Avoid or Eliminate Delays or Other
3. Transit States, in the exercise of their full Difficulties of a Technical Nature
sovereignty over their territory, shall have the Transit States shall take all appropriate measures to avoid
right to take all measures necessary to ensure that delays or other difficulties of a technical nature in traffic in
the rights and facilities provided for in this Part for transit.
land-locked States shall in no way infringe their
legitimate interests. Should such delays or difficulties occur, the competent
authorities of the transit States and land-locked States
Right of Access concerned shall cooperate towards their expeditious
Land-locked states (i.e. a state which has no coast), given elimination. (Art. 130)
their special geographical circumstance, are given a right
of access to and from the sea in order to enable it to Equal Treatment in Maritime Ports
exercise its rights given by UNCLOS (e.g. rights under Ships flying the flag of land-locked States shall enjoy
treatment equal to that accorded to other foreign ships in
freedom of the high seas, rights of landlocked states to the
maritime ports. (Art. 131)
EEZ, etc.).
THE AREA
The Area, Defined
It is the seabed and ocean floor and subsoil thereof
beyond the limits of national jurisdiction.
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The Area shall be open to use exclusively for peaceful In the M/V “Saiga” (No. 2) Case (infra., p. 60), it was
purposes by all states. (Art. 141) explained that the purpose behind including this
concept is to secure more effective implementation
International Sea-Bed Authority of the duties of the flag state. It is not a criterion by
It is the organization established by UNCLOS which acts on reference to which the validity of the registration of
behalf of mankind in governing the regime of resources in ships in a flag state may be challenged by other
the Area. It organizes, carries out and controls the states.
activities of the Area on behalf of mankind as a whole.
Such state shall have its own conditions for the grant of its
It possesses international legal personality and such other nationality to ships, their registration within its territory,
legal capacity as may be necessary for the exercise of its and for the right to fly its flag. (Art. 91 [1])
functions. (Art. 176)
A ship shall sail under the flag of one State only. A ship
Organization. – The following are the entities that form with two or more states has no nationality, and may not
part of the Authority: claim any of the nationalities represented by these flags.
The Assembly – All state parties to the UNCLOS are (Art. 92 [2])
ipso facto members of the Authority and form the
membership of its Assembly. A ship cannot change its flag during voyage or while in a
The Council. – It is the executive organ of the port of call, except in case of transfer of ownership or on
authority whose 36 members are elected by the the basis of change of registry. (Art. 92 [1])
Assembly on the basis of representation. It is
responsible for the implementation of the UNCLOS Flag of Convenience
and the Assembly’s general policies, enter into The flag of a state which requires a nominal or no link at all
agreements, and approve plans of work of the with a ship which is allowed to fly its flag. It is also called
Enterprise. open registry state
The Enterprise. – It is the organ of the Authority
directly engaged in the exploration and exploitation Duties of a Flag State with respect to Ships Flying
of the resources of the Area, including the its Flag
transporting, processing and marketing of minerals. 1. Maintain a registry of ships authorized to fly its flag;
2. Take jurisdiction over the internal affairs of the ship;
Activities in the Area 3. Ensure safety at sea of the ship;
The Enterprise carries out mining activities on behalf of 4. Ensure ship is surveyed by a qualified surveyor of
the Authority: ships and is well-equipped;
Directly; or 5. Ensure ship is manned by qualified master, officers
By joint ventures with: and crew; and
o State parties; 6. Ensure the officers and crew are conversant with
o State enterprises; or and are required to observe international
o Natural or juridical persons sponsored by state regulations. (Art. 94)
parties.
Duty to Render Assistance in Distress
Applicants for license in deep seabed mining are limited to It is the duty of the flag state to require the master of the
those controlled by states parties to the UNCLOS or by ship, without serious danger to the ship, to:
their nationals. (Art. 153) a) To render assistance to any person found at sea in
danger of being lost;
b) To proceed with all possible speed to the rescue of
persons in distress, if informed of their need of
NAVIGATION assistance, in so far as such action may reasonably
be expected of him; and
Right of Navigation c) After a collision, to render assistance to the other
Every State, whether coastal or land-locked, has the right ship, its crew and its passengers. (Art. 98)
to sail ships flying its flag on the high seas. (Art. 90)
Duty with regard to Transport of Slaves
Nationality of Ships is that of Flag State It is the duty of the flag state to take effective measures to
Ships carry the nationality of the state whose flag they are prevent and punish the transport of slaves in ships
entitled to fly (i.e. flag state). (Art. 91 [1]) authorized to fly its flag, as well as to prevent the unlawful
use of its flag for that purpose. (Art. 99)
There must be a “genuine link” between the state and the
ship. (ibid.) Flag State Jurisdiction in the High Seas
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The flag state have exclusive jurisdiction over a ship which whose coastline is threatened may
flies its flag on the high seas. (relate to discussion on High take and enforce measures
Seas, supra., p. 63) beyond the territorial sea,
including on the high seas. (Art.
General Rule: Exclusive jurisdiction over all ships sailing 221)
its flag in the high seas. It covers all
legislative and enforcement jurisdiction Penal jurisdiction in matters of collision or any other
over administrative, technical and social incident of navigation. – In the event of a collision or any
matters concerning the ship, its master, other incident of navigation concerning a ship on the high
officers and crew. seas, involving the penal or disciplinary responsibility of
the master or of any other person in the service of the ship,
In particular, its jurisdiction includes: the following have concurrent jurisdiction over the latter’s
1. Penal or disciplinary proceedings person for the institution of penal/disciplinary proceedings:
against the master or any other Flag state; or
person in the service of the ship State of nationality of the person. (Art. 97 [1])
arising from collision or any other
incident of navigation concerning a No arrest or detention of the ship, even as a measure of
ship on the high seas; (Art. 97) investigation, shall be ordered by any authorities other
2. Prevention or punishment of than those of the flag State. (Art. 97 [3])
transport of slaves in ships
authorized to fly its flag. (Art. 99) This rule departs from the decision in the Case of SS
Lotus (supra., p. 29), which allowed Turkey (the state
Exceptions: 1. In penal or disciplinary proceedings with jurisdiction over the place of the incident) to
on the master or person in the exercise jurisdiction over a French captain (i.e.
service as regards to incidents territorial jurisdiction.)
arising from collision or any other
incident of navigation – the state Hence, the rule applicable at present is that it is
of which that person is a national either the flag state or the state of which such person
has jurisdiction concurrent with is a national which may exercise jurisdiction over the
the flag state; person in question. (Art. 91 [1])
2. Piracy – every state may seize a CLASS NOTES
pirate, ship taken by pirates, seize
the pirates and property on board; Complete immunity of ships in the high seas. – The
3. On persons or ship engaged in following ships enjoy complete immunity from the
unauthorized broadcasting from jurisdiction of any other state other than the flag state:
the high seas – the following states Warships; (Art. 95)
may arrest the person, seize the Ships owned or operated by a State and used only
broadcasting apparatus, and on government non-commercial service. (Art. 96)
prosecute the offender
a. state of registry of the Piracy
broadcasting installation; States have the duty to cooperate in the repression of
b. state of which the piracy in the high seas or in any other place outside the
offender is a national; jurisdiction of the state. (Art. 100)
c. state where the broadcast
transmission is received; UNCLOS, Art. 101.
or Definition of Piracy
d. any state where
authorized radio Piracy consists of any of the following acts:
communication is a) Any illegal act of violence or detention, or
suffering interference any act of depredation, committed for
(Art. 109, infra., p. 67) private ends by the crew or the passengers
4. Exercise of the right of hot pursuit of a private ship or a private aircraft, and
– a warship or military aircraft of a
directed:
state may stop & arrest a foreign i. on the high seas, against another
ship on the high seas; (Art. 111, ship or aircraft, or against persons
infra., p. 67) or property on board such ship or
5. Pollution from a marine casualty – aircraft;
jurisdiction off the coastal state
ii. against a ship, aircraft, persons or
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property in a place outside the All States shall cooperate in the suppression of
jurisdiction of any State; unauthorized broadcasting from the high seas.
b) Any act of voluntary participation in the
operation of a ship or of an aircraft with “Unauthorized broadcasting” refers to the transmission of
knowledge of facts making it a pirate ship or sound radio or television broadcasts from a ship or
aircraft; or installation on the high seas intended for reception by the
c) Any act of inciting or of intentionally general public, contrary to international regulations.
facilitating an act described in
subparagraph (a) or (b). Criminal jurisdiction over unauthorized broadcasting. –
Any person engaged in unauthorized broadcasting may be
This definition differs from that found in Art. 122 of prosecuted before the court of:
the Revised Penal Code. 1. Flag state;
2. State of registry of the installation;
The UNCLOS definition contemplates the presence of 3. State of his nationality;
two ships, one committing acts of piracy against 4. Any state where the transmission can be received;
another. or
5. Any state where authorized radio communication is
The RPC definition, however, only requires that a suffering interference
person “who, on the high seas, shall attack or seize a
vessel or, not being a member of its complement nor Right to Visit
a passenger, shall seize the whole or part of the cargo A warship may board a foreign ship not protected by
of said vessel, its equipment, or personal belongings immunity (i.e. warships, state-operated vessels, supra. p.
of its complement or passengers.” A second ship is 43) in the high seas if there is reasonable ground of
not required. suspecting the foreign ship that it is:
CLASS NOTES 1. Engaged in piracy
2. Engaged in slave trade
This may be committed by warships or a government ship, 3. Engaged in unauthorized broadcasting
if the crew has mutinied and taken control of the ship. (Art 4. Without nationality; or
102) 5. Of the same nationality as the warship but flying a
foreign flag or refusing to show its flag (Art. 110 [1])
Pirate ship or aircraft. – A ship or aircraft is considered a
Right of Hot Pursuit
pirate ship or aircraft if it is intended by the persons in
It is the right of a coastal state to pursue a foreign ship
dominant control to be used for the purpose of
beyond its territorial sea and contiguous zone when it has
committing acts of piracy, or has been used to commit acts
good reason to believe that a foreign ship has violated its
of piracy and remains under the control of such persons
laws.
who committed such acts
Requisites. – A coastal state may pursue a foreign ship
In being classified as such, it may or may not lose its
beyond the maritime zones over which it has jurisdiction
nationality depending on the law of its flag state.
(i.e. into the high seas), given the following:
Seizure of pirate ship or aircraft. – On the high seas or in Pursuing ship must have given a visual or
any other place outside the jurisdiction of any state, every auditory signal to stop at a distance which
state may seize a pirate ship or aircraft, or a ship or aircraft enables it to be seen or hears by the foreign ship;
taken by piracy and under the control of pirates, and Art. 111 [4])
arrest the persons and seize the property on board. (Art. Pursuit was commenced when the foreign ship is
105) still within the internal waters, archipelagic
waters and territorial sea or the contiguous zone
Such seizure may only be effected by: of the pursuing state (Art. 111 [1])
Warships or military aircraft; or *If commenced in the contiguous zone, EEZ
or continental shelf, may be pursued only
Other ships or aircraft clearly marked and
identifiable as being on government service and for violations of rights in that zone. (Art.
authorized to that effect. (Art. 107) 111 [2])
Pursuit must not have been interrupted; (Art.
If seizure effected without adequate grounds, the seizing 111 [1])
state shall be liable to the flag state of the seized ship for May be exercised only by warships or military
any resulting loss or damage. (Art. 106) aircraft or other ships of government service and
with authority. (Art. 111 [5])
Unauthorized Broadcasting
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Cessation. – Pursuit ceases as soon as the ship pursued Composed of 21 independent members, representing
enters the territorial sea of its own state or of a third state. the world’s principal legal systems and equitable
geographical distribution
Liability for stop and seizure without cause. – If pursuit May for chambers of three or more members
without cause, the foreign ship shall be compensated for Must have a Seabed Disputes Chamber – with 11
the resulting loss or damage members; shall form an ad hoc chamber of 3
members
Illicit Drug Traffic Jurisdiction on all disputes submitted in accordance
States have the duty to cooperate for the suppression of with UNCLOS
illicit traffic in narcotic drugs and psychotropic substances
engaged in by ships in the high seas. (Art. 108) Seabed Disputes Chamber. –
Jurisdiction over disputes and submissions concerning
Note, however, that UNCLOS does not authorize the activities in the Area
boarding, searching or seizure of a foreign ship suspected
of engaging in illicit drug traffic. (Magallona, 2005) A state
which suspects that a foreign ship is engaged in drug
trafficking may only request the cooperation of the ship’s PEACEFUL USE OF THE OCEANS
flag state to suppress such traffic
UNCLOS, Art. 301.
This also applies to the boarding if such foreign ships by Peaceful uses of the seas
military aircraft. (Art. 110 [4])
In exercising their rights and performing their
duties under this Convention, States Parties shall
refrain from any threat or use of force against the
SETTLEMENT OF DISPUTES territorial integrity or political independence of
Duty to Settle Disputes by Peaceful Means any State, or in any other manner inconsistent
with the principles of international law embodied
It is the right of the parties to resort to peaceful means of
their own choice on which they can agree ay time in the Charter of the United Nations.
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The Philippines has consented to the application of the Lol-lo and The crime, having been committed
Trading with the Enemy Act within its jurisdiction by Saraw: outside the Philippines, is not within the
enacting the Philippine Property Act of 1946 jurisdiction of any court in the Philippine
Islands.
Section 3 of the PPA of 1946 provides that "The Trading
with the Enemy Act of October 6, 1917” as amended shall Piracy is within the jurisdiction of the CFI since
continue in force in the Philippines after July 4, 1946. jurisdiction for crimes similar to piracy has no territorial
limits.
According to the court, a foreign law may have
extraterritorial effect in a country other than the country Piracy is robbery or forcible depredation on the high seas,
of origin, provided the latter, in which it is sought to be without lawful authority and done animo furandi, and in
made operative gives its consent thereto. As a general the spirit and intention of universal hostility.
rule, the jurisdiction of the nation within its territory is
necessarily exclusive and absolute. It is susceptible of no Pirates are in law hostes humani generis. Piracy is a crime
limitation not imposed by itself. Any restriction upon it, not against any particular state but against all mankind. It
deriving validity from an external source, would imply a may be punished in the competent tribunal of any country
diminution of its sovereignty to the extent of the where the offender may be found or into which he may be
restriction, and an investment of that sovereignty to the carried. The jurisdiction of piracy unlike all other crimes
same extent in that power in which would impose such has no territorial limits. As it is against all so may it be
restriction. However, there are exceptions to the full and punished by all. Nor does it matter that the crime was
complete power of a nation within its own territories, committed within the jurisdictional 3-mile limit of a
which can traced up to the consent of the nation itself. foreign state, "for those limits, though neutral to war, are
They can flow from no other legitimate source. This not neutral to crimes."
consent may be either express or implied. The consent of a
Senate to the operation of a foreign law within its territory There is universal jurisdiction over crimes hostes
does not need to be express; it is enough that said consent humani generis – literally, enemy of mankind.
can be implied from its conduct or from that of its
authorized officers. Ratification can be given tacitly as well This categorization includes piracy, torture, genocide,
as expressly. Tacit ratification takes place when a State war crimes, and other crimes against humanity.
begins the execution of a treaty without expressly ratifying
it. Existence of armed conflict is not required for its
invocation.
In this case, the application of the Trading with the Enemy CLASS NOTES
Act in the Philippines is based on the enactment of the
Philippine Property Act of 1946 as well as the conduct of
the Philippine government (act of Pres. Roxas and Sec. of TUBB v. GREISS
Foreign Affairs). G.R. No. L-1325 (1947)
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United States. They were serving as civilian employees in Taiwan Bank to cancel the mortgage but the latter refused.
the US Army Depot in Manila when were apprehended by Haw Pia filed a suit before the trial court against China
the authorities of the United States Army and had been Banking and Taiwan Bank. He wanted the defendants to
held in army custody. They were formally charged with execute a deed of cancellation of the mortgage. Trial court
violations of Articles of War regarding misappropriation of held that the payments Haw Pia made to the Taiwan Bank
United States Government property destined for military did not extinguish his obligation since there is no proof
use, said acts having been committed within premises under international law that the Japanese Military
occupied by the United States Army under lease contracts. Administration had authority to liquidate China Banking.
Thus they filed this petition for habeas corpus. Japanese Military Administration had authority to
liquidate China Banking. The Liquidation of China
Tubb and Philippine courts have exclusive jurisdiction Banking is not a confiscation but a mere sequestration of
Tedrow: over their arrest, confinement and its assets which required the liquidation of the bank.
imprisonment because
They are civilians not subject to The Japanese military authorities had power, under the
military laws; international law, to order the liquidation of the China
Martial law is no longer enforced. Banking Corporation and to appoint and authorize the
Bank of Taiwan as liquidator to accept the payment in
Philippine Courts have no jurisdiction over the case. Not question, because such liquidation is not confiscation of
only did they agree in their contracts that they submit the properties of China bank, but a mere sequestration of
themselves to US military law, they are also likened to its assets which required the liquidation or winding up of
military personnel who are exempt from the civil and the business of said bank. Thus, there was valid tender of
criminal jurisdiction of the foreign state they are assigned payment to Bank of Taiwan which discharged Haw Pia’s
to. obligation.
In their contract of employment, they voluntarily Confiscation is not allowed under the Hague Regulations.
submitted themselves to United States military law while However, there was no confiscation here but a mere
serving said contract, thereby submitting themselves to sequestration. Under international law, the occupying
the full extent of the authority of the United States Army power can effect a liquidation that is in the form of a mere
in this area. Petitioners are also American citizens, their sequestration. In the effort of occupying powers to control
position during the subsistence of said contract are no enemy property within their jurisdiction in order to avoid
different from that of enlisted men, that in relation to the their use in aid of the enemy and to increase their own
United States Army in the Philippines and during the resources, they had to resort to such measures of
subsistence of their employment contract, can be deemed prevention which do not amount to a straight confiscation,
to possess the status of military personnel. as freezing, blocking, placing under custody, and
sequestrating the enemy private property.
The principle of International Law is that a foreign army
allowed to march through a friendly country or to be Acts of a belligerent military occupant is valid if it is
stationed in it, by permission of its government or not political. Confiscation is not allowed, only
sovereign, is exempt from the civil and criminal jurisdiction sequestration which is a valid measure of prevention.
of the place. The agreement for the stationing of the US (Karichi Notes, citing Prof. Roque, 2010)
Army or a part of its forces in the RP implies a waiver of all
jurisdiction over their troops during the time covered by The receiver appointed by a belligerent occupying
such agreement, and permits the allied general or state has the authority to receive payment by virtue
commander-in-chief to retain that exclusive control & of the rights of such occupying state. Payment to him
discipline which the government of his army may require. extinguishes the obligation to the enemy obligor.
CLASS NOTES
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2. Immunity of representative of states or and abettors of the Estate to seize from disposing of the
diplomatic and consular immunities. latter’s assets. The District Court granted the injunction
which the Republic opposed.
Sovereign Immunity
It is the principle by which a state, its agents and property Republic of District court lacked authority to subject it
are immune from the judicial process of another state. the to the injunction because it enjoys
Philippines: sovereign immunity under the Foreign
It is premised on the principle of equality of states, Sovereign Immunities Act (FSIA).
according to which a state may not impose its authority or Hilao: District court need not even assume
extend its jurisdiction on another state without the jurisdiction over the RP. In this case, the
consent of the latter through a waiver of immunity. FSIA does not govern because Rule 65(d) of
(Magallona, 2005) the Federal Rules of Civil Procedure makes
an injunction binding upon "those persons
It consists of: in active concert or participation with" an
1. Immunity of head of state; enjoined party to the action where those
2. State immunity persons have actual notice.
The principle, found in the Constitution,
that the state may not be sued without its In order to enforce injunction on the Republic of the
consent, is both municipal and international Philippines, the District Court must have personal
law. jurisdiction over it. Also, none of the exceptions to
foreign sovereign immunity under the FSIA is available to
Diplomatic and Consular Immunities Hilao in this case to be able to successfully sue the RP in
Much of the law governing diplomatic relations is the District Court of Hawaii.
customary law. Official representatives of a state are given
immunities and privileges when they are within the An injunction against the Republic in the absence of
territory of another state. The immunities are personal, in personal jurisdiction over it would be futile, as the court
that they benefit the person. But the purpose is functional, would be powerless to enforce its injunction. A court
that is, to enable them to perform their functions properly. should not issue an unenforceable injunction: "The rule
On the part of the receiving state there lie certain that a court of equity will not issue an unenforceable
obligations to protect the representative and his property decree of injunction comprehends as a reason for denying
and office. injunctive relief that the court... does not have the means
to punish disobedience once discovered.'"
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claims for civil damages, provided summons may be served Immunity of State from suit is a universally recognized
in the US. principle. In international law, "immunity" is commonly
understood as an exemption of the state and its organs
There is no sovereign immunity against charges of torture. from the judicial jurisdiction of another state. This is
anchored on the principle of the sovereign equality of
“US Alien Tort Statute provides a forum for claims by states under which one state cannot assert jurisdiction
aliens for torture that has occurred elsewhere. It requires over another in violation of the maxim par in parem non
a claim by an alien, a tort and a violation of international habet imperium (an equal has no power over an equal).
law. The prohibition against official torture carries with it The doctrine of Immunity is restricted to sovereign or
the force of jus cogens norm which enjoys the highest governmental activities (jure imperii) and cannot be
status in international law. All states believe that torture is extended to commercial, private and proprietary acts (jure
wrong, all that engage in torture deny it, and no state gestionis) The contract was entered into in the discharge
claims a sovereign right to torture its own citizens. Under of its governmental functions, the sovereign state cannot
international law, any state that engages in official torture be deemed to have waived its immunity from suit.
violates jus cogens. Note that RP filed a brief stating that
its foreign relations with the US would not be adversely This case enunciated the “purpose test” – immunity
affected if claims against Marcos were litigated in the US.” can only be applied in cases involving sovereign
(Karichi Notes, 2010) purposes.
CLASS NOTES
Claims under ATCA make it possible to subject
sovereign acts to claims. This thus makes it unwise
for states to commit violations. (ibid.) UNITED STATES OF AMERICA v. REYES
CLASS NOTES G.R. No. 108813 (1994)
JUSMAG has immunity; it did not waive its immunity Bradford did not have immunity as she was sued in her
when it hired Sacramento as its employee. private or personal capacity.
A suit against such a US agency is a suit against the US Bradford was sued in her private or personal capacity for
Government, albeit the latter was not impleaded in the acts allegedly done beyond the scope and even beyond
complaint. Considering that the US has not waived or her place of official functions, the case falls within the
consented to the suit, the complaint against JUSMAG exception to the doctrine of state immunity.
cannot prosper.
Unauthorized acts of government officials or officers are
not acts of the State, and an action against the officials or
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PUBLIC INTERNATIONAL LAW A2015
officers by one whose rights have been invaded or violated against the state itself although it has not been formally
by such acts, for the protection of his rights, is not a suit impleaded. Public officials can be held personally
against the State within the rule of immunity of the State accountable for acts claimed to have been performed in
from suit. A public official may be liable in his personal connection with official duties where they have acted ultra
private capacity for whatever damage he may have caused vires or where there is showing of bad faith. The doctrine
by his act done with malice and in bad faith, or beyond the cannot institutionalize irresponsibility and non-
scope of his authority or jurisdiction, for example, under accountability nor grant a privileged status not claimed by
Art. 31 of the Vienna Convention on Diplomatic Relations any other official of the Republic. An act or omission that is
which admits of exceptions of the general rule of a ultra vires cannot be part of official duty, but is a tortuous
diplomatic agent’s immunity from criminal jurisdiction of act.
the receiving state: (c) an action relating to any
professional or commercial activity exercised by the In this case, there was a finding of negligence since the
diplomatic agent in the receiving State outside his official Office of the Provost Marshal explicitly recommended the
functions. deletion of the name “Auring” if the article was to be
published. However, despite such recommendation, Wylie
No functional immunity with respect to acts outside and Williams approved and published the same with the
official duties. name “Auring”. According to the court, such act or
omission cannot be part of their official duty.
The “purpose test” was useless here given the facts
of the case because Bradford’s actions were deemed The Court flip-flopped once again in this case.
ultra vires (i.e. beyond her powers).
CLASS NOTES According to Prof. Roque, it would seem that the
Court decides cases on the basis of how affected the
Filipino was.
WYLIE v. RARANG CLASS NOTES
G.R. No. 74135 (1992)
Aurora Rarang was a merchandise control guard in the UNITED STATES OF AMERICA v. RUIZ
Office of the Provost Marshal. Wylie, the assistant G.R. No. L-35645 (1985)
administrative officer of the US Naval Base, supervised the
publication of the Plan of the Day, a newsletter featuring The US held a bidding for some naval repair projects. Eligio
important announcements and general matters of interest de Guzman and Co., Inc submitted bids. Subsequently, the
to the personnel of the base. Captain Williams, on the company received from the US two telegrams requesting it
other hand, was the commanding officer of the base. One to confirm its price proposals and for the name of its
feature of the Plan of the Day was the Action Line Inquiry. bonding company. The company then received a letter
Under the said feature, an article was published alleging which said that the company did not qualify to receive an
that a certain “Auring” appropriated confiscated items for award for the projects, because of its previous
their own consumption or use. Rarang filed a suit for unsatisfactory performance rating on a repair contract
damages (libel against Wylie and Williams for her with the US. The letter further said that the projects had
humiliation because of the article. been awarded to third parties. The company sued the US
to allow them to perform the work on the projects.
Wylie and They are entitled to functional immunity
Williams: because the publication was done in the United Philippine courts do not have jurisdiction
performance of their duties. States: over it since it is a foreign sovereign
which had not given its consent to the
The defendants are not entitled to functional immunity suit.
because such is not available with regard to tortious acts.
US is entitled to immunity since sovereign immunity is
American naval officers who commit a crime or tortuous not lost when a state enters into contracts related to its
act while discharging official functions are not covered by sovereign functions.
state immunity from suit. While the doctrine is also State immunity exempts a State from being sued in the
applicable to complaints filed against officials of the state courts of another State without its consent or waiver. This
for acts allegedly performed by them in the discharge of rule is a necessary consequence of the principles of
their duties. The rule is that if the judgment against such independence and equality of States. However, the court
officials will require the state itself to perform an said that the rules of international law are not petrified;
affirmative act to satisfy the same, such as the they are constantly developing and evolving. Thus, it has
appropriation of the amount needed to pay the damages been necessary to distinguish between sovereign and
awarded against them, the suit must be regarded as governmental acts (jure imperii) and private, commercial
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PUBLIC INTERNATIONAL LAW A2015
and proprietary acts (jure gestionis). The result is that can be implied that it has given its consent to be sued
State immunity now extends only to acts jure imperii. under the contract.
However, the restrictive application of State immunity is This case is an earlier instance of the application of
proper only when the proceedings arise out of commercial the purpose test. Since the contract entered into was
transactions of the foreign sovereign, its commercial for a stevedoring service – which the deemed to be a
activities or economic affairs. A State may be said to have proprietary function – it did not uphold the US’ claim
descended to the level of an individual and can thus be for immunity.
deemed to have tacitly given its consent to be sued only
when it enters into business contracts. It does not apply Compare this with the USA v. Ruiz (supra.), which
where the contract relates to the exercise of its sovereign concerned a case for the repair of wharves – a
functions. In this case the projects are an integral part of function which is obviously non-proprietary and can
the naval base which is devoted to the defense of both the only be exercised by the state.
US and the RP, indisputably a function of the government CLASS NOTES
of the highest order; they are not utilized for nor
dedicated to commercial or business purposes. The correct
test for the application of state immunity is not the LIANG v. PEOPLE
conclusion of a contract by a state but the legal nature of G.R. No. 125865 (2001)
the act.
Informations for grave oral defamation were filed against
Makasiar, J., dissenting: Liang, a Chinese national was employed as an Economist
by the Asian Development Bank. On separate occasions,
When the U.S. Government, through its agency at Subic Liang accordingly uttered defamatory words (“bitch!”) to
Bay, confirmed the acceptance of a bid of a private Joyce V. Cabal, an ADB clerical staff. The MeTC judge
company for the repair of wharves or shoreline in the received an “office of protocol” from the DFA stating that
Subic Bay area, it is deemed to have entered into a Liang is covered by immunity from legal processes under
contract and thus waived the mantle of sovereign Sec. 45 of the Agreement between ADB and the Philippines.
immunity from suit and descended to the level of the Judge dismissed the cases without notice to the
ordinary citizen. Its consent to be sued, therefore, is prosecution.
implied from its act of entering into a contract.
Liang was not entitled to immunity.
HARRY LYONS, INC. v. UNITED STATES OF The statements allegedly made by petitioner Liang were
AMERICA not uttered in the performance of his official functions. SC
G.R. No. L-11786 (1958) disregarded the “office of protocol” from the DFA stating
that Liang is covered by immunity from legal process
Harry Lyons, Inc. and the USA entered into a contract for under Section 45 of the Agreement between the ADB and
stevedoring service at the US Naval Base in Subic Bay. The the RP regarding the Headquarters of the ADB in the RP.
said contract is valid until June 30, 1956, and was entered The subsequent (2001) MR focused on the diplomatic
into pursuant to the provisions of Sec. 2 (c) (1) of the immunity of officials and staff of ADB from legal and
Armed Services Procurement Act of 1947 of the USA. Harry juridical processes in the Philippines and the constitutional
Lyons Inc. brought an action to collect several sums of and political basis of that immunity. It should be made
money arising from the contract. clear that nowhere in the assailed Decision is diplomatic
immunity denied, even remotely.
United CFI has no jurisdiction over it and over the
States: subject matter of the action since the USA Accordingly, courts cannot blindly adhere and take on its
is a sovereign state which cannot be sued face the communication from the DFA that Liang is
without its consent. covered by any immunity. In receiving ex-parte the DFA’s
advice and in motu proprio dismissing the criminal cases
(Merits) Court dismissed the case due to Harry Lyons, without notice to the prosecution, the latter’s right to due
Inc.’s failure to exhaust administrative remedies. process was violated. It has been ruled that the mere
invocation of immunity clause does not ipso facto result in
(Obiter) USA is not entitled to immunity. State immunity the dropping of the charges.
is lost when a state enters into a proprietary contract. The immunity mentioned under Sec. 45 of the Agreement
is not absolute, but subject to the exception that the act
When a sovereign state enters into a contract with a was done in an official capacity.
private person, the state can be sued upon the theory that
it has descended to the level of an individual from which it
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PUBLIC INTERNATIONAL LAW A2015
Slandering a person could not possibly be covered by the ruled that as a DEA agent allowed by the Philippine
immunity agreement because our laws do not allow the government to conduct activities in the country, he is
commission of a crime, such as defamation, in the name of entitled to state immunity from suit.
official duty. It is a well-settled principle of law that a
public official may be liable in his personal capacity for The diplomatic immunity of Scalzo under the Vienna
whatever damage he may have caused by his act done Convention on Diplomatic Relations was not sufficiently
with malice or in bad faith or beyond the scope of his established. Only "diplomatic agents," under the terms of
authority or jurisdiction. the Vienna Convention, are vested with blanket diplomatic
immunity from civil and criminal suits. Diplomatic agents
Under the Vienna Convention on Diplomatic Relations, a are the heads of missions or members of the diplomatic
diplomatic agent, assuming Liang is such, enjoys immunity staff, thus impliedly withholding the same privileges from
from criminal jurisdiction of the receiving state except in all others. The test is whether or not he performs duties of
case of an action relating to any professional or diplomatic nature.
commercial activity exercised by the diplomatic agent in
the receiving state outside his official functions. As However, it was sufficiently established that, indeed, he
already mentioned above, the commission of a crime is worked for the United States Drug Enforcement Agency
not part of official duties. and was tasked to conduct surveillance of suspected drug
activities within the country on the dates pertinent to this
Calling someone a “bitch” is obviously a sovereign case. If it should be ascertained that Arthur Scalzo was
function. acting well within his assigned functions when he
committed the acts alleged in the complaint, the present
This case shows that the certification made by the controversy could then be resolved under the related
DFA that an individual is entitled to immunity is NOT doctrine of State Immunity from Suit. A foreign agent,
conclusive. Determinations made by the executive as operating within a territory, can be cloaked with immunity
to the grant of immunity are thus subject to judicial from suit but only as long as it can be established that he is
review. acting within the directives of the sending state. The
consent of the host state is an indispensable requirement
This is a departure from the rule in WHO v. Aquino of basic courtesy between the two sovereigns.
(infra.) that Courts are bound to respect executive
determination through the DFA of eligibility to The grant of immunity in this case was inconsistent
immunity. with the Vienna Convention. Scalzo was not a
CLASS NOTES diplomatic agent entitled to such immunity.
CLASS NOTES
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inviolability of the official's properties, exemption from would impair the capacity of such body to discharge its
local jurisdiction, and exemption from taxation and responsibilities impartially on behalf of its member-states.
customs duties.
SOUTHEAST ASIAN FISHERIES DEVELOPMENT ICMC and IRRI have diplomatic immunity.
CENTER v. ACOSTA
G.R. No. 97468-70 (1993) Specialized agencies are international organizations having
functions in particular fields. The grant of immunity from
Two labor cases were filed against Asian Fisheries local jurisdiction is necessitated by their international
Development Center-Aquaculture Department (SEAFDEC- character and respective purposes. The objective is to
AQD) before the NLRC. The private respondents claim that avoid the danger of partiality and interference by the host
they have been wrongfully terminated from their country in their internal workings.
employment by SEAFDEC. SEAFDEC filed a Motion to
Dismiss, alleging that it is an international inter- Conduct of certification elections is violative of
government organization composed of various Southeast diplomatic immunity.
Asian countries, and that therefore, the NLRC does not
have jurisdiction over it. This immunity grants international organizations immunity
from any form of legal process. While certification
SEAFDEC is an international agency entitled to functional elections are not suits against these organizations per se,
immunity. they cannot be viewed as isolated processes; they could
trigger off a series of events in the collective bargaining
SEAFDEC is an international agency enjoying diplomatic process which can lead to the eventuality of court
immunity, enjoying functional independence and freedom litigation.
from control of the state in whose territory its office is
located. One of the basic immunities of an international Functional immunity is available to international
organization is immunity from local jurisdiction, i.e., that it organizations.
is immune from the legal writs & processes issued by the CLASS NOTES
tribunals of the country where it is found. The obvious
reason for this is that the subjection of such an
organization to the authority of the local courts would
afford a convenient medium thru which the host REGINA v. BARTLE AND THE COMMISSIONER
government may interfere in their operations or even OF POLICE FOR THE METROPOLIS AND
influence or control its policies and decisions of the OTHERS, EX PARTE PINOCHET
organization; besides, such objection to local jurisdiction [1999] UKHL 17 (24th March, 1999); 38 ILM 581
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(*Trivia: The petitioner in this case is named “Regina” UK at the time it was committed, and not at the time the
because the action was brought in the name of the Queen extradition was sought (request date). Pinochet as a
of the United Kingdom – Ed.) former head of state enjoys immunity, but torture as
defined under the Torture convention cannot be a public
Pinochet [Pee-no-chet; not -shey] became the head of state function, so he does not enjoy immunity with regard to
of Chile, after a successful coup. During the period of the these acts committed after Sept. 29, 1988.
Pinochet regime, appalling acts of barbarism were
committed in Chile and elsewhere in the world: torture, Torture is now an international crime on its own.
murder, unexplained disappearance of individuals, all on a International Law prohibiting torture has the character of
large scale. After stepping down as President, he assumed jus cogens or a peremptory norm, i.e. one of those rules
a lifetime seat in the Chilean Senate. Sen. Pinochet denied which have a particular status. Universal Jurisdiction over
the allegations against him. In 1998, Pinochet came to the torture is justified by its jus cogens nature. Important
UK for medical treatment. The judicial authorities in Spain points from the torture convention:
sought to extradite him in order to stand trial in Spain on a Torture under the Convention can only be
large number of charges. committed by "a public official or other person
acting in an official capacity", but these words
Pinochet: He was a head of state during the time include a head of state. A single act of official torture
the alleged acts were committed and is "torture";
therefore subject to sovereign immunity Superior orders provide no defense;
(subject matter jurisdiction/rationae If the states with the most obvious jurisdiction (the
materiae) Art. 5(1) states) do not seek to extradite, the state
UK and Spain had no jurisdiction where the alleged torturer is found must prosecute
because the acts were committed in or, apparently, extradite to another country
Chile (jurisdiction over his person/ (universal jurisdiction).
rationae personae) There is no express provision dealing with state
immunity of heads of state, ambassadors or other
Although Pinochet is entitled to immunity as a former officials.
head of state, acts of torture or international crimes are Since Chile, Spain and the UK are all parties to the
not considered as “OFFICIAL ACTS” and are therefore not Convention, they are bound under treaty by its
covered by his immunity. provisions WON such provisions would apply in the
absence of treaty obligation. Chile ratified the
Under customary international law, it is accepted that a Convention with effect from Oct. 30, 1988 and the
state is entitled to expect that its former head of state will UK with effect from Dec. 8, 1988.
not be subjected to the jurisdiction of the courts of
another state for certain categories of acts performed
while he was head of state unless immunity is waived by ATTORNEY GENERAL OF ISRAEL v. EICHMANN
the current government of the state of which he was once 36 ILR 277 (Israel Sup. Ct. 1962)
the head. The immunity is accorded for the benefit not of
the former head of the state himself but for the state, and Eichmann was an important Nazi bureaucrat who oversaw
any international law obligations are owed to that state the Final Solution. He was a high-ranking SS officer who
and not the individual. played a central role in the planning and implementation
of the persecution of Jews in Germany, Poland, Hungary
The rationale is the same for former heads of state as it is and several other countries before and during World War II.
for current heads of state. In each case, the obligation in At the end of the war he escaped capture as a war criminal.
international law is owed to the state, not the individual, He fled to Argentina where he lived and worked under an
though in the case of a current head of state, he will have alias. Eichmann was eventually tracked down by Israeli
a concurrent immunity rationae personae. It is the state intelligence agents. Israel doubted that Argentina would
alone that can waive immunity, which Chile did not do in cooperate in the extradition of Eichmann, so in 1960
this case. Eichmann was kidnapped (he was drugged) and taken
secretly to Israel for prosecution. The Eichmann trial heard
As to the double criminality doctrine, not all the crimes as scores of witnesses about the Nazi atrocities. Eichmann
charged are extradition crimes, so, Pinochet can be was later convicted, executed, cremated and his ashes
extradited with regard to charges after Sept. 29, 1988 scattered on the Mediterranean so as not to create a
(date when Torture became a crime in the UK). The shrine for his perverse admirers upon orders of the Israeli
Principle of Double Criminality requires that the conduct Supreme Court.
complained of must constitute a crime under the law of
both Spain and of the UK. The relevant date is the conduct Eichmann: Israel exceeded its jurisdiction when he
date - meaning, that the conduct should be a crime in the was abducted and brought before
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refused any opportunity for communication with any Camarena’s life so that others could further torture and
person or seeking advice for legal assistance. interrogate him. The US sought his extradition but the
Mexican government did not cooperate. Machain was
Ker: He was denied due process of law and that then forcibly kidnapped by Mexican nationals hired by the
the abduction violated the US-Peru DEA from his office in Guadalajara, Mexico, flown by
Extradition Treaty. private plane to El Paso, Texas, where he was arrested by
DEA officials.
Ker was not denied due process.
Alvarez- US courts do not have jurisdiction over
Due process of law is complied with when the party is Machain: the case because the abduction violated
regularly indicted by the proper grand jury in the state the US-Mexico Extradition Treaty.
court, has a trial according to the forms and modes
prescribed for such trials, and when in that trial and US courts have jurisdiction over the case notwithstanding
proceedings he isn’t deprived of rights to which he is the abduction of Machain.
lawfully entitled. For mere irregularities in manner in
which he was brought into the custody of the law, he isn’t The court in interpreting the treaty ruled that there is
entitled to say that he shouldn’t be tried for the crime with nothing about the obligation of the US and Mexico to
which he is charged in a regular indictment. refrain from forcible abductions of people from the
territory of the other nation, or the consequences under
This treaty of extradition doesn’t provide that a party the Treaty if such an abduction happens. It also found that
fleeing from the US to escape punishment for crime finds that in the history of negotiation and practice under
becomes thereby entitled to an asylum in the country to the treaty, there is no showing that abduction outside of
which he has fled. It isn’t contended that Peru couldn’t the Treaty constitutes a violation. , Since his abduction
have ordered Ker out of the country on his arrival, or at was not in violation of the Extradition Treaty, therefore
any period of his residence there. Nor can it be doubted the Ker doctrine is applicable to this case. The fact that
that Peru could, of its own accord, without any demand Machain was forcibly abducted does not therefore
from the US, have surrendered Ker to an agent of Illinois, prohibit his trial in a court in the United States for violation
and this surrender would’ve been valid within the of criminal laws of the United States. However, in the end
dominions of Peru. The right of the Peruvian government Machain was acquitted for insufficiency of evidence
to voluntarily give a party, in Ker’s condition, an asylum in against him.
that country is quite a different thing from his right to
demand and insist upon security in such an asylum. The
treaty, so far as it regulates the right of asylum, is intended SOSA v. ALVAREZ
to limit this right in the case of one who is proved to be a 542 US 692 (2004)
criminal fleeing from justice; so that, on proper demand
and proceedings had therein, the government of the Upon his acquittal from the charges lodged by the DEA,
country of the asylum shall deliver him up to the country Alvarez-Machain sued Sosa and a DEA operative, claiming
where the crime was committed. And to this extent, the damages from the US under the Federal Torts Claim Act for
treaty does regulate or impose a restriction upon the right his false arrest. FTCA authorizes suits for personal injury
of the government of the country of the asylum to protect caused by a negligent and wrongful act or omission of an
the criminal from removal. In this case, the treaty wasn’t employee of the government while acting within the scope
called into operation or relied upon. of his office (like the DEA operative). He was also seeking
damages from Sosa under the Alien Torts Statute for a
The Court pronounced a veritable “Ma- and Pa- violation of the law of nations. ATS provides that “district
Doctrine” – the manner of arrest is no longer courts shall have original jurisdiction of any civil action by
relevant, granted the accused is subjected to a fair an alien for a tort only, committed in violation of the law of
and impartial trial. nations or a treaty of the US.
CLASS NOTES
Alvarez-Machain’s claims based on the ATS and FTCA
were rejected by the US SC.
UNITED STATES v. ALVAREZ-MACHAIN
504 US 655 (1991) According to the court, it cannot exercise jurisdiction over
the claim of Alvarez-Machain. Accordingly, the FTCA is
Humberto Alvarez-Machain is a medical doctor, indicted provided an insufficient basis for the suit, even if
for participating in the kidnap and murder of US-DEA abducting the doctor from Mexico violated customary
special agent Enrique Camarena Salazar and a Mexican norms of international law. Accordingly, while the FCTA
pilot working with Camarena, Alfredo Zavala-Avelar. It was does provides a waiver of immunity of the US government
alleged that Machain participated by prolonging the in personal injury caused by its employee, this is subject to
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the exception that it is not to be made applicable to The South African common law is Roman-Dutch law. The
injuries suffered in a foreign country. In this case, the unlawful removal of a person from one jurisdiction to
abduction of Alvarez-Machain occurred in Mexico so the another is regarded as abduction and as a serious breach
exception clearly applies, hence, the US government of the law in Roman-Dutch law. The individual must be
cannot be held liable. protected against illegal detention and abduction, the
bounds of jurisdiction must not be exceeded, sovereignty
As for the ATS, the court said that it is a jurisdictional must be respected, the legal process must be fair to those
statute creating no new causes of action. The reasonable affected and abuse of law must be avoided in order to
inference from history and practice is that the ATS was protect and promote the integrity of the administration of
intended to have practical effect the moment it became justice. This applies equally to the state. When the state is
law, on the understanding that the common law would a party to a dispute, as for example in criminal cases, it
provide a cause of action for the modest number of must come to court with "clean hands". When the state
international law violations thought to carry personal itself is involved in abduction across international borders,
liability at the time: offenses against ambassadors, as in the present case, its hands are not clean.
violation of safe conducts, & piracy. In deriving a standard
for assessing Alvarez's claim, the Court said that history
shows that federal courts should not recognize claims JOHN DOE I, et.al. v. UNOCAL
under federal common law for violations of any 963 F. Supp. 880 (1997)
international norm with less definite content and
acceptance among civilized nations than the 18th-century Plaintiffs are farmers from Burma. They brought a class
paradigms familiar when the ATS was enacted. Accordingly, action against Unocal, Total, the Myanmar Oil and Gas
actionable violations of international must be of a norm Enterprise (MOGE), the State Law and Order Restoration
that is specific, universal, and obligatory. A single illegal Council (SLORC), and individual officers of Unocal. They
detention of less than a day, followed by the transfer of allege that SLORC is a military junta that seized control in
custody to lawful authorities and a prompt arraignment, Burma in 1988, and MOGE is a state-owned company
violates no norm of customary international so well controlled by SLORC that produces and sells energy
defined as to support the creation of a federal remedy for products. Plaintiffs seek injunctive, declaratory and
Alvarez-Machain. compensatory relief for alleged international human rights
violations perpetrated by defendants in furtherance of
defendants Unocal, Total and MOGE's joint venture, the
STATE v. EBRAHIM Yadana gas pipeline project.
1991 (2) SALR 553
UNOCAL: Moved to dismiss plaintiffs' complaint
Ismail Ebrahim is a South African citizen who was a for lack of subject-matter jurisdiction
member of the military wing of the African National pursuant to Federal Rule of Civil
Congress (ANC). In 1964, he was convicted of several acts Procedure 12(b)(1)
of sabotage and sentenced to 15 years imprisonment and
released in 1979. Thereafter, he was restricted by MTD was GRANTED as to SLORC and MOGE because they
executive order to the district of Pinetown in Natal. He fled are entitled to sovereign immunity pursuant to the
to Swaziland while the restriction order was still in force. Foreign Sovereign Immunities Act (FSIA).
He was forcibly abducted from his house in Swaziland by
two men who informed him that they were members of the Under the FSIA, a foreign state is immune from suit, and
South African Police. He was bound, blindfolded and federal courts lack subject matter jurisdiction over claims
gagged and taken across the border into South Africa to a against the foreign state, unless one of the enumerated
group of armed white men. They questioned him about the exceptions applies. The FSIA provides a general exception
activities of the ANC. He inferred they were members of to jurisdictional immunity where: [1] the action is based
the security police because they were permitted to pass upon a commercial activity carried on in the United States
through an army road blockade without search or by the foreign state; or [2] upon an act performed in the
questioning. In South Africa, he was formally arrested, and United States in connection with a commercial activity of
was charged with treason. the foreign state elsewhere; or [3] upon an act outside the
territory of the United States in connection with a
Ebrahim: The court did not have jurisdiction over commercial activity of the foreign state elsewhere and
his case because he was abducted by that act causes a direct effect in the United States. In this
agents of the South African government case, plaintiffs contended that SLORC and MOGE are not
entitled to immunity because this case falls within clauses
The court does not have jurisdiction. Thus, Ebrahim’s 2and 3 of the commercial activity exception. However, the
conviction and sentence cannot stand. court found that plaintiff’s allegations were not enough to
sustain a finding that the two exceptions applied in this
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Belgium violated exceeded its authority when it issued UNITED STATES v. PURGANAN
the international warrant of arrest against the former G.R. No. 148571 (2002)
Minister of Foreign Affairs of Congo. The latter is also
entitled to diplomatic immunity.
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The DOJ received from the DFA NOTE VERBALE NO. 0522 available. It is more akin, if at all, to a court’s request to
containing a request for the extradition of Mark Jimenez to police authorities for the arrest of the accused who is at
the US. Attached to the note were the warrant of arrest large or has escaped detention or jumped bail. Having
issued by the US district court and other supporting once escaped the jurisdiction of the requesting state, the
documents. Secretary of Justice Drilon issued DO 249 reasonable prima facie presumption is that the person
designating and authorizing a panel of attorneys to handle would escape again if given the opportunity. Potential
the case. Pending evaluation, Jimenez requested copies of extraditees do not have the right to a hearing for the
the official extradition request form the US Government, as issuance of a warrant of arrest nor the right to bail granted
well as the documents attached thereto. Drilon denied the by the RTC.
requests saying that it is premature to furnish Jimenez with
a copies pending he evaluation, that the evaluation is not a Accordingly, extradition is the removal of an accused from
preliminary investigation since it is merely a procedure to the Philippines with the object of placing him at the
determine the requirements under the relevant law and disposal of foreign authorities, to enable to requesting
treaty have been complied with by the requesting state to hold him in connection with any criminal
government (US); thus, the constitutionally guaranteed investigation directed against him, or the execution of a
rights of the accused in all criminal prosecutions are not penalty imposed on him under the penal or criminal law of
available to Jimenez. the requesting state or govt.
Jimenez filed a case against Drilon claiming that his due The Extradition Procedure is as follows:
process rights were violated. He won in the first case but 1. The Extradition Request – The request is made by
lost in the second one (Secretary of Justice v. Hon. Lantion) the Foreign Diplomat of the Requesting State
addressed to the Sec of Foreign Affairs (Philippines)
The US government then filed this third case for a petition which contains the copy of the criminal charge,
for the extradition of Jimenez. A warrant of arrest was recital of the acts for which extradition is requested,
subsequently issued. the text of the applicable law, and such other
supporting documents. It t is the task of the
Jimenez: He was entitled to basic due process executive authority to evaluate the sufficiency of the
rights of notice and hearing during the request pursuant to Sec 5 of PD 1069 and the
evaluation stage of the extradition corresponding provision in the extradition treaty
proceedings (subject of first two cases) (Article 7 RP-US Treaty).
and before a warrant of arrest can be 2. The Extradition Petition – upon the finding made by
issued against him. the SFA that he extradition request is sufficient and
complete in form and substance, he shall deliver the
Jimenez was not entitled to the basic due process rights same to the SOJ (Drilon) who shall immediately
of notice and hearing during the evaluation stage of the designate and authorize the attorney to handle the
extradition proceedings and before warrant of arrest case. The lawyer so designated shall file a written
could be issued against him. petition with the RTC for the court to take
consideration of the extradition request. The judge
The ultimate purpose of extradition proceedings is to shall summon the extraditee and he may issue a
determine whether the request expressed in the petition, warrant of arrest if it appears that the arrest will
supported by its annexes & the evidence that may be best serve the ends of justice.
adduced during the hearing of the petition, complies with 3. The Extradition Hearing – The treaty does not
the Extradition Treaty and Law; and whether the person specify the procedure but merely state that the
sought is extraditable. The proceedings are intended proceeding shall in so far as practicable be not
merely to assist the requesting state in bringing the inconsistent with summary proceedings. The trial
accused - or the fugitive who has illegally escaped - back to court determines WoN the offense mentioned is (1)
its territory, so that the criminal process may proceed extraditable based on the application of dual
therein. By entering into an extradition treaty, RP is criminality rule and (2) if the offense for which
deemed to have reposed its trust in the reliability or extradition is requested is a political one.
soundness of the legal and judicial system of its treaty
partner, as well as in the ability and the willingness of the The court also laid down five postulates of extradition in
latter to grant basic rights to the accused in the pending this case:
criminal case therein. 1. Extradition is a major instrument for the suppression
of crime. With the advent of easier and faster means
Extradition proceedings are not equivalent to a criminal of international travel, the flight of affluent criminals
case in which guilt or innocence is determined. from one country to another for the purpose of
Consequently, an extradition case is not one in which the committing crime and evading prosecution has
constitutional rights of the accused are necessarily become more frequent. Accordingly, governments
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are adjusting their methods of dealing with criminals authority. The immunity serves the public interest in
and crimes that transcend international boundaries. enabling such officials to perform their designated
2. The Requesting State Will Accord Due Process to functions effectively without fear that a particular decision
the Accused. A duly authorized representative’s may give rise to personal liability. The sphere of protected
signature on an extradition treaty signifies our action must be related closely to the immunity's justifying
confidence in the capacity and the willingness of the purposes. However, presidential immunity does not
other state to protect the basic rights of the person extend to unofficial conduct, which is what is involved in
sought to be extradited. That signature signifies our this case. The court also said that with respect to acts
full faith that the accused will be given, upon taken in his public character (official acts), the President
extradition to the requesting state, all relevant and may be disciplined principally by impeachment, not by
basic rights in the criminal proceedings that will take private lawsuits for damages. Other than that, he is
place therein; otherwise, the treaty would not have otherwise subject to the laws for his purely private acts.
been signed, or would have been directly attacked
for its unconstitutionality.
3. The proceedings are Sui Generis. As pointed out FORBES v. CHUOCO TIACO
in Secretary of Justice v. Lantion extradition G.R. No. L-6157 (1910)
proceedings are not criminal in nature.
4. Compliance shall be in GF. Fulfilling our obligations Forbes (then Governor- General of the Philippines) at the
under the Extradition Treaty promotes comity with request of the Imperial Government of China ordered the
the requesting state. Failure to fulfill our obligations deportation of Chuoco, a Chinese National, along with 11
thereunder paints a bad image of our country before others. Chuoco Tiaco returned to the Philippines and filed a
the world community. Such failure would discourage complaint against Forbes and the officials he instructed to
other states from entering into treaties with us, carry out the deportation (Harding and Trowbridge) for
particularly an extradition treaty that hinges on damages.
reciprocity. We are bound by pacta sunt servanda to
comply in good faith with our obligations under the Forbes: The CFI lacked jurisdiction over him and
Treaty. his officials pursuant to immunity.
5. There is an underlying risk of flight. Persons to be
extradited are presumed to be flight risks. This The action was brought against Forbes and the others in
prima facie presumption finds reinforcement in the their official capacities. Consequently, the CFI lacked
experience of the executive branch: nothing short of
jurisdiction over them.
confinement can ensure that the accused will not
flee the jurisdiction of the requested state in order The Governor General, in his official capacity, being one of
to thwart their extradition to the requesting state. the coordinate branches of the Government, is entitled to
the same protection against personal actions for damages
by those who feel themselves aggrieved by acts which he
CLINTON v. JONES performs in carrying out what he honestly deems to be the
520 U.S. 681 (1997) duties of his office as are the other coordinate branches of
the Government. The court also explained that the
Clinton was the Governor of the Arkansas before he executive department has the power to expel undesirable
became the President of the US. Jones worked as an aliens from the country.
employee of the Arkansas Industrial Development
Commission. According to Jones, when that she was Moreland, J., concurring:
working as a state employee staff at the registration desk
in an official conference, Ferguson, a former State Police In explaining the Principle of Non-liability, he said that it is
officer, persuaded her to leave her desk and to visit the undoubted that neither the Legislature, nor a member
Governor in a business suite at the hotel, where he made thereof is liable in damages for any act which it performs,
"abhorrent" sexual advances that she vehemently rejected. believing that it had the power so to act, even though it
She filed a complaint against Clinton. ultimately appears that such act is entirely outside of its
powers and jurisdiction and is wholly and utterly void. It is
Clinton: He filed a motion to dismiss claiming equally undoubted that neither the courts, constituting
presidential immunity (as he was another coordinate branch of the Government, nor
already the US President at that time) members thereof, are, under similar circumstances, liable
in damages. He believed that what the Governor-General
Clinton is not immune from the suit filed by Jones. exercised were functions essentially judicial overlapping
with executive functions. Thus, if a judge acted in place of
The president has immunity from damages claims arising the GG, he would not be civilly liable. Therefore, so must
out of official acts extending to the outer perimeter of his the Governor-General. The subject matter is the same, the
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mental process involved is the same and the discretion accountable to the people but he may be removed from
used is the same. Whenever, therefore, the State confers office only in the mode provided by law and that is by
judicial powers upon an individual, it confers them with impeachment.
full immunity from private suits. This is also rooted in the
separation of powers in our government. According to the
court, the civil responsibility of the chief executive would JURISDICTIONAL IMMUNITIES OF THE STATE
produce in him an inevitable tendency, insidious in (GERMANY v. ITALY: GREECE INTERVENING)
character, constant in pressure, certain in results, to ICJ Judgment of 3 February 2012
protect himself by following lines of least resistance and to
temper the force of his executive arm in places and upon Italy allowed civil claims to be brought against Germany in
occasions where there was strong opposition, either by the Italian courts, seeking reparation for injuries caused by
powerful and influential persons or by great federated violations of international humanitarian law committed by
interests, and where public prejudice was intense, active, the German Reich during the Second World War. According
and threatening. to Germany, Furthermore, Italy has breached Germany’s
jurisdictional immunity.
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national legislation, judicial decisions and the comments of state immunity. Furthermore, jus cogens norms prevail
States on what became the United Nations Convention on over state immunity. State immunity being procedural in
the Jurisdictional Immunities of States and their Property. character, does not involve determining the lawfulness of
It believes that practice to show that, whether in claiming the actions brought before a state’s courts. Lastly, nothing
immunity for themselves or according it to others, States in international law shows that the entitlement of a State
generally proceed on the basis that there is a right to to immunity depends on the existence of effective
immunity under international law, together with a alternatives to securing redress.
corresponding obligation on the part of other States to
respect and give effect to that immunity. Judge Trinidade, dissenting:
The customary international law in force when the claims According to him, jus cogens cannot be deconstructed into
were filed before Italian courts should apply because of substantial and procedural. In order to avoid denial of
Article 13 of the International Law Commission Articles on justice and impunity, jus cogens must stand above the
Responsibility of States for Internationally Wrongful Acts. prerogative or privilege of state immunity. The tension
The article states that the compatibility of an act with between State immunity and the right of access to justice
international law can be determined only by reference to should be resolved in favor of the latter, particularly in
the law in force at the time when the act occurred. cases of international crimes. The “threshold of gravity” of
Regarding the matter of Villa Vigoni, the ICJ held that the breaches of human rights and of international
based on Article 19 of the UN Convention, measures of humanitarian law removes any bar to jurisdiction, in the
constraint may only be taken against property belonging quest for reparation to victimized individuals. In relation
to another state if the property is being used for non- to this, he said that all mass atrocities should be
government commercial purposes. As a center for cultural considered in light of the “threshold of gravity”.
exchange, Villa Vigoni is clearly being used for Furthermore, states cannot waive rights which are
governmental non-commercial purposes. Thus, Italy inherent to human beings. In reality, what jeopardizes
violated Germany’s immunity. Regarding the matter of international legal order are international crimes, not
allowing Greek decisions to be enforced in Italy, the ICJ individuals’ quest for reparation. Grave breaches of
held that such an act also amounts to exercising human rights and international humanitarian law are anti-
jurisdictional power. Since Italy exercised jurisdictional juridical acts amounting to breaches of jus cogens. Since
power in granting exequatur, it violated Germany’s they are breaches of jus cogens, they cannot simply be
immunity. disregarded by relying on State immunity.
As for the territorial tort principle, it cannot apply because Moreover, international crimes perpetrated by states
customary international law shows that a state should be (such as the German Third Reich in this case) are neither
accorded immunity for torts committed by its armed acts jure gestionis (commercial acts) nor acts jure imperii
forces on the territory of another state. The territorial tort (governmental acts). They are delicta imperii (crimes of the
principle is based on Article 11 of the European government), which cannot be given immunity. What
Convention, which provides that State A cannot claim cannot be waived in delicta imperii is the individual’s right
immunity from State B in proceedings which relate to of access to justice. This includes the right to reparation
redress for injury, if such injury occurred in State A while for the grave violations of the rights inherent to him as a
State B was present in the former’s territory. Article 11 human. The term “immunity” was never meant to be a
must be read in conjunction with Article 31, which principle or a norm of general application. It was never
precludes the actions of armed forces from affecting the intended to except jurisdiction on and cover up
immunities or privileges enjoyed by a state. Article 12 of international crimes. A finding of particularly grave
the United Nations Convention provides that a state violations of human rights and of international
cannot invoke immunity if it caused injury within another humanitarian law is a valuable test for the removal of any
state. This article does not make any express mention of bar to jurisdiction. He emphasized that it is absurd to
the acts of armed forces, but the International Law remove State immunity in trade relations or local personal
Commission’s commentary says that it does not apply to tort (e.g. traffic accidents) but not in international crimes.
situations involving armed conflicts. It cannot be held that State immunity is not supposed to stand in the way of the
the acts of the German military affected Germany’s state realization of justice. Securing justice to victims includes
immunity. enabling them to seek and obtain redress for the crimes
they suffered.
As for Italy’s remaining defenses, they are not applicable
because the acts were committed in the course of an One cannot embark on a wrongfully assumed and
armed conflict, and the current status of customary formalist lack of conflict between procedural and
international law has not developed to the point where substantive rules, in effect unduly depriving jus cogens of
actions of armed forces which amount to serious its legal consequences. Contrary to legal positivism, law
violations of international human rights are excluded from
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and ethics go together and this must be kept in mind to Senegal: Charges concerned crimes committed
realize justice at both the national and international levels. outside the territory of Senegal by a
foreign national against foreign nationals
•Court: covered by immunity and that they would involve the exercise
•Sir: of universal jurisdiction, while the
•Could not file under domestic laws, because Senegalese Code of Criminal Procedure
forced labor is not absolutely prohibited. then in force did not provide for such
•The case is controversial because we don't jurisdiction
know if the court was correct. Belgium: The complaints filed before the Belgian
courts were based on crimes covered by
•Italy and dissenting the Belgian Law of 1993 concerning the
•Jus cogens prohibition should not be precluded punishment of serious violations of
by procedural law. Substantive shall prevail over international humanitarian law, as
procedural. amended by the Law 1999 and by the
•Duty to provide redress for violation: Convention against Torture (CAT). The
•Reparation - not limited to compensation Convention was ratified by Senegal on 21
•Restoration of status quo ante August 1986, without reservation, and
•Satisfaction - formal apology became binding on it on 26 June 1987,
•Duty to prosecute and punish the date of its entry into force. Belgium
CLASS NOTES ratified the Convention on 25 June 1999,
without reservation, and became bound
by it on 25 July 1999.
QUESTIONS RELATING TO THE OBLIGATION
TO PROSECUTE OR EXTRADITE (BELGIUM v. Senegal is bound to extend its jurisdiction relating to the
SENEGAL) prosecution of a Head of State of a foreign country under
ICJ Judgment of 20 July 2012 the Convention against Torture.
Mr. Habré was President of Chad for 8 years, during which Senegal’s failure to enact implementing legislation for the
large-scale violations of human rights were allegedly CAT delayed the submission of this case to Senegalese
committed, including arrests of actual or presumed authorities, thus causing Senegal to breach its obligation
political opponents, detentions without trial or under under Article 6 of the CAT to “immediately make a
inhumane conditions, mistreatment, torture, extrajudicial preliminary inquiry into the facts” as soon as a suspect is
executions and enforced disappearances. After being identified in the territory of the state party. The first
overthrown, he was granted political asylum by the complaint against Habré was filed in Dakar, Senegal. It
Senegalese government and he subsequently settled in “became imperative” for Senegal to conduct the
Dakar. preliminary inquiry. Senegal failed to include any materials
demonstrating that it had carried out such an inquiry with
Complaints were filed against Mr. Habré with a Belgian respect to Habré’s involvement. Senegal breached CAT
investigating judge, for serious violations of international Article 7, which requires the state party having jurisdiction
humanitarian law, crimes of torture and the crime of over the territory where a person accused of offenses
genocide. The complaints were based on crimes covered by under the CAT is found, to submit the case to its
the Belgian Law of 1993 concerning the punishment of competent authorities for prosecution or to extradite him.
serious violations of international humanitarian law, as
amended by the Law 1999, and by the Convention against The prohibition on torture is part of customary
Torture. The Minister of Justice of Chad stated that the international law and has become a peremptory norm (jus
Sovereign National Conference had officially lifted from the cogens). However, the obligation to prosecute alleged
former President all immunity from legal process. However, perpetrators of torture only arises after the Convention
when Belgium sought to extradite Mr. Habré, the Dakar has entered into force for that state party. Senegal’s
Court of Appeals held that, as “it could not extend its obligations under the Convention date back to June 1987
jurisdiction to matters relating to the investigation or when Senegal joined the CAT. There were a number of
prosecution of a Head of State for acts allegedly complaints regarding serious offenses committed by Habré
committed in the exercise of his functions”; that Mr. Habré after that date for which Senegal is obligated to prosecute.
should “be given jurisdictional immunity”, which “is Belgium is entitled to invoke Senegal’s compliance with
intended to survive the cessation of his duties as President the Convention beginning in 1999 and has, in fact,
of the Republic”; and that it could not therefore requested Senegal’s compliance since 2000 when the first
“adjudicate the lawfulness of *the+ proceedings and the complaint against Habré was filed in Senegal.
validity of the arrest warrant against a Head of State”.
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Congo filed an Application instituting proceedings against The basis of the rules on state responsibility, at present, is
Uganda in respect of a dispute concerning “acts of armed the Draft Articles on Responsibility of States for
aggression perpetrated by Uganda on the territory of the Internationally Wrongful Acts, prepared by the
Democratic Republic of the Congo, in flagrant violation of International Law Commission.
the United Nations Charter and of the Charter of the
Organization of African Unity”. Uganda allegedly violated Elements of Internationally Wrongful Acts
principles of conventional and customary law by engaging
in military and paramilitary activities against Congo, by ILCDA, Art. 2.
occupying its territory and by actively extending military, Elements of an internationally
logistic, economic and financial support to irregular forces wrongful act of a State
having operated there, by committing acts of violence
against nationals of the Congo, and by engaging in the There is an internationally wrongful act of a State
illegal exploitation of Congolese natural resources. when conduct consisting of an action or omission:
a) is attributable to the State under
Uganda filed a counter-claim alleging involvement by international law; and
Congo in armed attacks against Uganda and in an attack b) constitutes a breach of an international
on the Ugandan Embassy and on Ugandan nationals in obligation of the State.
Kinshasa. Accordingly, this was a violation of the immunity
accorded to diplomats pursuant to the Vienna Convention 1. Attribution to state.
on Diplomatic Relations. Owing to a state’s lack of physical being, it can
only act by and through its agents and
Congo violated its obligations under the Vienna representatives. (Higgins, Chapter 9) As such, a
Convention on Diplomatic Relations by launching attacks state can be subject to international
on the Ugandan Embassy. responsibility by “attribution”, that is, by
considering the acts or omissions committed by
Through the attacks by members of the Congolese armed a person or state organ which can be attributed
forces on the premises of the Ugandan Embassy in to the state.
Kinshasa, and their maltreatment of persons who found
themselves at the Embassy at the time of the attacks, the The rules on attribution to a state are discussed,
Congo breached its obligations under Article 22 of the infra.
Vienna Convention on Diplomatic Relations. Furthermore,
by the maltreatment by members of the Congolese armed 2. Breach.
forces of Ugandan diplomats on Embassy premises and at There is a breach when a State violates a rule
Ndjili International Airport, Congo also breached its contained in any source of international law. This
obligations under Article 29 of the Vienna Convention. includes treaty provisions, customary norms as
well as general principles of international law.
The breach may relate to an obligation under a
D. International Responsibility customary norm or a conventional rule.
(Magallona, 2005)
ILC Draft Articles on Responsibility of States for Eight (8) Instances of State Attribution
Internationally Wrongful Acts (ILCDA), Art. 1. Acts and omissions of certain persons or individuals are
Responsibility of a State for its attributed to the state as its own act in determining its
internationally wrongful acts responsibility for an internationally wrong act. (Magallona,
2005)
Every internationally wrongful act of a State entails
the international responsibility of that State. The ILC provides for rules governing such attribution. They
may be categorized as follows:
International Responsibility, Generally 1. Those pertaining to state organs or officials
International responsibility arises as a consequence of State organs; (ILCDA, Art. 4)
illegal acts or for failure of a state to observe obligations State organ placed at the disposal of
under international law. (Magallona, 2005) another state (ILCDA, Art. 6)
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Some writers (e.g. Crawford) are of the position that Convention on the Prevention and Punishment of
a law which clothes entities with such powers is not the Crime of Genocide (Bosnia and Herzegovina v.
required. What is essential is the existence of state Serbia and Montenegro), infra.
authorization.
CLASS NOTES These apparently conflicting tests may be reconciled:
When dealing with the matter of individual
criminal responsibility and the application of
Person or group under direction or control of a state. – the rules of international humanitarian law (e.g.
in the case of Tadid), use the Overall Control
ILCDA, Art. 8. Test;
Conduct directed or controlled by a State When dealing with the matter of state
responsibility, use the Effective Control Test.
The conduct of a person or group of persons shall CLASS NOTES
be considered an act of a State under international
law if the person or group of persons is in fact Person or group acting under color of authority. –
acting on the instructions of, or under the
direction or control of that state in carrying out the ILCDA, Art. 9.
conduct. Conduct carried out in the absence or default of
the official authorities
This contemplates cases where state organs supplement
their own action by recruiting or instigating private The conduct of a person or group of persons shall
persons or groups who act as “auxiliaries” while remaining be considered an act of a State under international
outside the official state structure. law if the person or group of persons is in fact
exercising elements of the governmental authority
Control. – In order to determine whether there is a “real in the absence or default of the official authorities
link” between the private persons or groups and the state, and in circumstances such as to call for the
it becomes necessary to consider the degree of control exercise of those elements of authority.
exercised by the latter over the former.
This deals with the exceptional case of conduct in the
There are two tests for this purpose: exercise of elements of the governmental authority by a
1. Effective Control Test person or group of persons acting in the absence of the
Control must have been exercised in respect to official authorities and without any actual authority to do
each individual act or omission which constitutes so. The exceptional nature of the circumstances envisaged
the breach. The private persons or groups must in the article is indicated by the phrase “in circumstances
have been mere agents of the state who were such as to call for”. Such cases occur only rarely, such as
told what had to be done at all stages. during revolution, armed conflict or foreign occupation,
where the regular authorities dissolve, are disintegrating,
This presents a higher threshold for attribution. have been suppressed or are for the time being
A general situation of dependence and support inoperative. They may also cover cases where lawful
would thus be insufficient to justify attribution. authority is being gradually restored, e.g. after foreign
occupation. (ILC, Comments on the Draft Articles, 2001)
This test was enunciated in the Case Concerning
Military and Paramilitary Activities in and Insurrectional movement eventually becoming the new
against Nicaragua (Nicaragua v. USA), supra. government. –
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o That state does so with knowledge of a) To observe its continued duty to perform the
the circumstances of the obligation breached; (ILCDA, Art. 29)
internationally wrongful act; and b) To cease the act, if it is continuing; and (ILCDA,
o The act would be internationally Art. 30)
wrongful if committed by that State. c) To offer appropriate assurances and guarantees
(ILCDA, Art. 16) of non-repetition, if circumstances so require.
When a state directs and controls another state (ibid.)
in the commission of an internationally wrongful d) To make full reparation for the injury caused by
act, if: the act. (ILCDA, Art. 31)
o That state does so with knowledge of
the circumstances of the Reparation. – The responsible state is under an obligation
internationally wrongful act; and to make full reparation for the injury caused by the
o The act would be internationally internationally wrongful act. (ILCDA, Art. 31)
wrongful if committed by that S\state.
(ILCDA, Art. 17) The payment of reparation is the “corollary of the violation
of the obligations resulting from an engagement between
When a state coerces another state to commit states.” (Factory at Chorzow, supra.)
an act, if:
o The act would, but for the coercion, be Essential principle of reparation. – The Court in the Factory
an internationally wrongful act of the at Chorzow case (supra.) laid down the essential principle
coerced state; and in reparations.
o The coercing state does so with “Reparation must, so far as possible,
knowledge of the circumstances of the wipe out all the consequences of the
act. (ILCDA, Art. 18) illegal act and re-establish the situation
which would, in all probability have
Defenses; Circumstances Precluding Wrongfulness
existed if the act had not been
A state may invoke the following circumstances in order to
committed.” (ibid.)
preclude the wrongfulness of the act or omission imputed
against him:
Forms of reparation. – Full reparation for the injury caused
Party alleging the breach had actually consented by the internationally wrongful act shall take the form of
to the commission of a given act; (ILCDA. Art. 20) the following, singly or in combination:
The act was taken as a lawful measure of self- 1. Restitution
defense in conformity with the UN Charter; This is the responsibility of the responsible state
(ILCDA, Art. 21) to re-establish the situation which existed before
The act was taken as a countermeasure; (ILCDA, the wrongful act was committed, provided and
Art. 22) to the extent that restitution:
It was impossible for the state to comply with Is not materially impossible; and
the obligation due to force majeure; (ILCDA, Art. Does not involve a burden out of
23) proportion to the benefit deriving from
The author of the act was in a situation of restitution instead of compensation.
distress, and had no other reasonable way to (ILCDA, Art. 35)
save his life and those of others entrusted to his
care apart from the allegedly wrongful act; It is the restoration to status quo ante. It may
(ILCDA, Art. 24) take the form of material restoration, or the
Necessity reversal of some juridical act.
o The act was the only means of the
State to safeguard an essential interest 2. Compensation
against a grave and imminent peril; Insofar as the damage is not made good by
and restitution, the responsible state is under an
o The act does not seriously impair an obligation to compensate for any financially
essential interest of the State/s assessable damage, including loss of profits
towards which the obligation exists, or insofar as it is established. (ILCDA, Art. 36)
of the international community as a
whole; (ILCDA, Art. 25) It is the “…payment of a sum corresponding to
the value which restitution in kind would bear.”
Legal Consequences of an Internationally Wrongful (Factory at Chorzow, supra.)
Act
The state responsible for the internationally wrongful act
is under an obligation:
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It excludes “moral damage” to a state, i.e. the Article 49 of the ILC Draft Articles lays down the following
affront or injury caused by a violation of rights guidelines with regard to the use of countermeasures. To
not associated with actual damage to property wit:
or persons (which is the subject matter of 1. The taking of countermeasures must only be
“Satisfaction”, infra.). used to induce the responsible state to comply
with its obligations to cease the act, to offer
3. Satisfaction assurances of non-repetition, and to provide
The responsible state is under a duty to give reparation.
satisfaction for the injury caused insofar as it 2. It must be limited to the non-performance for
cannot be made good by restitution or the time being of the affected state’s
compensation. (ILCDA, Art. 37 [1]) international obligations to the responsible state.
3. It must, as far as possible, be taken in such a way
It consists in the following: as to permit the resumption of performance of
an acknowledgement of the breach; the obligations in question.
an expression of regret;
a formal apology; or Use of countermeasures should not affect the following:
another appropriate modality. a) The obligation to refrain from the threat or use
of force as embodied in the Charter of the
It should not be out of proportion to the injury United Nations;
and may not take a form humiliating to the b) Obligations for the protection of fundamental
responsible state. (ILCDA, Art. 37 [2]) human rights;
c) Obligations of a humanitarian character
This is a remedy for those injuries which are not prohibiting reprisals;
financially assessable (hence not covered by d) Other obligations under peremptory norms of
restitution or compensation). This includes general international law. (ILCDA, Art. 50 [1])
“moral damage” to a state, i.e. the affront or
injury caused by a violation of rights not A state taking countermeasures is not relieved from
associated with actual damage to property or fulfilling its obligations:
persons. (ILCDA, Art. 37 [3]) a) Under any dispute settlement procedure
applicable between it and the responsible State;
Countermeasures b) To respect the inviolability of diplomatic or
Countermeasures are those self-help remedies undertaken consular agents, premises, archives and
by states affected by internationally wrongful acts. These documents. (ILCDA, Art. 50 [2])
are not associated with armed conflict, and are not
inconsistent with other international obligations. They are Termination. – Countermeasures shall be terminated as
temporary measures justified as necessary and soon as the responsible state has complied with its
proportionate responses to an internationally wrongful act obligations (i.e. cessation, reparation) in relation to the
which terminated once the end is achieved. internationally wrongful act. (ILCDA, Art. 53)
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The acts of genocide committed in Srebrenica were not Consolidated Mining and Smelting Company of Canada,
perpetrated by “persons or entities” having the status of Limited, acquired the smelter plant at Trail. This facility
organs of the Federal Republic of Yugoslavia (as Serbia resulted in sulphur dioxide fumes and higher
was known at that time) under its internal law, as then in concentrations being emitted into the air. About 300-350
force. tons of sulphur were being emitted daily in 1930. From
1925, at least, to 1937, damage occurred in the State of
There is no showing that the Federal Republic of Washington, resulting from the sulphur dioxide emitted
Yugoslavia (FRY) army took part in the massacres, nor that from the Trail Smelter.
the political leaders of the FRY had a hand in preparing,
planning or in any way carrying out the massacres. The Court held Canada responsible for the conduct of the
Trail Smelter and enjoined it to pay compensation to
While it is true that there is much evidence of direct or United States. The court also provided for future
indirect participation by the official army of FRY, along monitoring of the effects of the factory's activities on the
with the Bosnian Serb armed forces, in military operations environment, to prevent possible future damages to the
in Bosnia and Herzegovina in the years prior to the events United States environment.
in Srebrenica, it was not shown that there was such any
participation in relation to the massacres committed at Under the principles of international law, as well as of the
Srebrenica. Furthermore, neither the Republika Srpska law of the United States, no State has the right to use or
nor the VRS were de jure organs of the FRY, since none of permit the use of its territory in such a manner as to cause
them had the status of organ of that State under its injury by fumes in or to the territory of another or the
internal law. proper- ties or persons therein, when the case is of serious
consequence and the injury is established by clear and
The acts were not committed by persons who, while not convincing evidence.
organs of Serbia, did nevertheless act on the instructions
of, or under the direction or control of Serbia. Considering the circumstances of the case, the Tribunal
holds that Canada is responsible in international law for
The Court, citing Nicaragua v. US, held that the applicable the conduct of the Trail Smelter. Apart from the
rule is that the conduct of a person or group of persons undertakings in the Convention, it is, therefore, the duty of
shall be considered an act of a State under international the Government of Canada to see to it that this conduct
law if the person or group of persons is in fact acting on should be in conformity with the obligation of the
the instructions of, or under the direction or control of, Dominion under international law as herein determined.
that State carrying out the conduct. Under this test, it
must be shown that this “effective control” was exercised, This is unique because the effect of pollution
or that the State’s instructions were given, in respect of transcends other states.
each operation in which the alleged violations occurred,
not generally in respect of the overall actions taken by the The case did not use any treaty or convention.
persons or groups of persons having committed the The principle used is not environmental BUT not
violations. to allow its territory to be used in such a manner
as to cause injury by fumes in or to the territory
Bosnia has not proved that the instructions were issued by of another
the federal authorities in Belgrade, or by any other organ This is a precedent for TRANSBOUNDARY
of the FRY, to commit the massacres. Although the ENVIRONMENTAL HARM
decision to kill the adult male population of the Muslim States must ensure that corporations existing in
community in Srebrenica was taken by some members of their territory must comply with these laws
the VRS Main Staff, it is without instructions from or CLASS NOTES
effective control by the FRY.
The Court therefore held that the acts of those who UNION BRIDGE COMPANY CLAIM (UNITED
committed genocide at Srebrenica cannot be attributed to STATES v. GREAT BRITAIN)
Serbia under the rules of international law of State (1924)
responsibility. Thus, the international responsibility of
Serbia is not engaged on this basis.
Union Bridge claims damages arising out of the removal of
the material from Port Elizabeth to the Imperial Military
Railways, Bloemfontein, by Harrison, the storekeeper of
TRAIL SMELTER CASE the Cape Gov’t Railways at Port Elizabeth, an agent of the
British gov’t, without Union Bridge’s consent, and its
In 1896, a smelter was started under American auspices subsequent sale.
near the locality known as Trail, B.C. In 1906, the
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Act of state organ. Harrison purported to act upon crew at the time when the real damage took place. The
instructions given to him, and in doing so, he committed 2 nature of the crew, the absence of civil or military control
mistakes in as much as it 1) was neutral property; and 2) ashore, and the situation of the neutral property, were
was intended for a road, an not a railway bridge. The circumstances calling for diligence on the part of those in
consignment of the material to Blomfontein was a charge of the Chinese crew to see to it that they were
wrongful interference with neutral property, and it was under control when they went ashore in a body.
within Harrison’s duty, as railway storekeeper, to forward
material by rail, and he did so under instructions which fix BOLIVAR RAILWAY COMPANY CLAIM (GREAT
liability on the British gov’t. This liability is not affected by BRITAIN v. VENEZUELA)
the fact that this was done under a mistake, or that the (1903)
British had no intention to appropriate the material.
(Lifted from Karichi Notes, 2010)
YOUMANS CLAIM (US v. MEXICO)
(1926) Claims were brought by Bolivar arising out of the
revolution in Venezuela that brought Castro to power &
(Lifted from Karichi Notes, 2010) against Castro himself, after his assumption to power.
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Starett Housing Corporation was contracted by the Iranian Covered Not Covered
Government for the construction of a 6000-unit apartment Agreements between Agreements between
complex. It contends that their property interests in the states states and other
housing Project have been unlawfully taken by the post- actors of
revolution Government of Iran through the appointment of international law
a temporary manager which has deprived them of the Those in writing Those not in written
effective use, control and benefits of their property by form
means of various actions authorizing, approving and Those governed by Those governed by
ratifying acts and conditions that prevented Starrett from international law the national law of
completing the Project.
one of the parties or
any other national
Expropriation Even Without Nationalization Law. The
law system
Court noted that the Government of Iran did not issue any
law or decree according to which the Zomorod Project or No Substantive Requirements of Form and Name
Shah Goli expressly was nationalized or expropriated. The definition also covers simplified agreements which are
However, it is recognized in international law that not in the form of formal treaties but have become of
measures taken by a State can interfere with property common use, such as: exchange of notes, agreed minutes,
rights to such an extent that these rights are rendered so
memoranda of understanding, among others. Its form will
useless that they must be deemed to have been
vary according to usage.
expropriated, even though the State does not purport to
have expropriated them and the legal title to the property Nomenclature is likewise insignificant. It can be called:
formally remains with the original owner. “treaty”, “covenant”, “pact”, etc.
Assumption of control over property by a government Conclusion and Entry into Force of Treaties
does not automatically and immediately justify a Representatives of a state. – A person may be said to be
conclusion that the property has been taken by the representing a state for purposes of adopting or
government, thus requiring compensation under authenticating the text of a treaty, or for expressing the
international law. In this case it cannot be disregarded that consent of the state to be bound by a treaty, given the
Starett has been requested to resume the Project. It has following:
been proved that at least by the end of January 1980 the He produces a “full powers” instrument; or
Government of Iran had interfered with the Claimants'
property rights in the Project to an extent that rendered
“Full powers.” – A document from a state
these rights so useless that they must be deemed to have designating a person/s to represent it for:
been taken. o negotiating, adopting or authenticating
the text of a treaty;
There is no actual taking; instead, there was
o Expressing a state’s consent to be
CREEPING taking. It does not have to be a complete bound by a treaty; or
taking as long as there is serious interference with o For accomplishing any other act with
the property. respect to a treaty. (TC, Art. 2 [1c])
CLASS NOTES
If it appears from the intention of states
considered to consider him so and to dispense
E. Vienna Convention on the Law with the production of full powers. (TC, Art. 7 [1])
of Treaties However, there are three (3) categories of representatives
Treaty, Defined who are considered in international law as representatives
It is an international agreement concluded between states of the state without having to produce “full powers.” To
in written form and governed by international law, wit:
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PUBLIC INTERNATIONAL LAW A2015
a) Heads of State, Heads of Government and c) the representative of the State has signed
Ministers for Foreign Affairs, for the purpose of the treaty subject to ratification; or
performing all acts relating to the conclusion of a d) the intention of the State to sign the treaty
treaty; subject to ratification appears from the full
b) Heads of diplomatic missions, for the purpose of powers of its representative or was
adopting the text of a treaty between the expressed during the negotiation. (TC, Art.
accrediting State and the State to which they are 14)
accredited;
c) Representatives accredited by States to an The consent to be bound by a state is
international conference or to an international established upon:
organization or one of its organs, for the purpose a) exchanges of the instrument of ratification
of adopting the text of a treaty in that between the parties; or
conference, organization or organ. (TC, Art. 7 [2]) b) deposit of the instrument of ratification
with the depositary agreed upon. (TC, Art.
Acts relating to treaties performed a person who fails to 16)
satisfy the “full powers” requirement or does not fall
under any of its exceptions are void and without legal 4. Acceptance, Approval, Accession
effect. (TC, Art. 8) This occurs when a state which did not sign a
treaty, already signed by other states, formally
Adoption. – Adoption of the text of a treaty takes place accepts its provisions. (Brownlie, Chapter 26) It
after the form and content of a treaty has been settled by gives flexibility to the process of becoming
the negotiating states. This is preparatory to the bound to a treaty. (Magallona, 2005)
authentication of the text of a treaty and to its signature.
The consent to be bound by a state is
This is not an expression of an agreement to be bound. established upon:
c) exchanges of the instrument of acceptance,
Authentication. – This is the step wherein the definitive approval or accession between the parties;
text of a treaty is established as the correct and authentic or
one. It enables states to know finally and definitively what d) deposit of the instrument of acceptance,
is the content of the treaty to which they might subscribe approval or accession with the depositary
to. After this step, the treaty is no longer susceptible to agreed upon. (TC, Art. 16)
alteration.
Deposit with a depositary. – the parties to a treaty may
Expression of consent to be bound. – The means by which agree to appoint a depositary who shall be charged with,
a state should express its consent to be bound by a treaty among others, keeping custody of the original text,
depends on the treaty itself or on the agreement of the preparing certified copies of the instrument, receiving
parties thereto. The TC provides for the following means signatures, and informing the parties of acts, notifications
through which this is accomplished: (TC, Art. 11) and communications relating to the treaty. (TC, Art. 77)
1. Signature
A signature can ordinarily express such consent The depositary may be any of the following:
to be bound. However, if the treaty contains a 1. One or more states;
stipulation requiring other means (e.g. 2. An international organization; or
ratification) in order for states to be bound 3. The Chief Administrative Officer of such
thereto, such signatures will not have a binding organization.
effect.
In the case of expression of consent through ratification,
2. Exchange of instruments constituting a treaty acceptance, approval or accession, the consent to be
bound is only established upon the deposit of the
3. Ratification instrument of ratification, acceptance, approval or
accession with the depositary so designated by the parties.
Ratification shall be used by a state to express its (TC, Art. 16)
consent to be bound in the following instances:
a) the treaty provides for such consent to be In most cases, it is the Secretary-General of the
expressed by means of ratification; United Nations who is designated as depositary.
b) it is otherwise established that the CLASS NOTES
negotiating States were agreed that
ratification should be required;
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PUBLIC INTERNATIONAL LAW A2015
Entry into force. – It is the fixed date or periods reckoned organization. (TC, Art. 20 [3])
from certain events as agreed upon by the parties which
mark the beginning of the binding force of a treaty as law. (For the effect of reservations to multilateral treaties, see
Reservations to the Convention on the Prevention and
Example: TC, Art. 84 (1) – “The present Punishment of the Crime of Genocide, infra.)
Convention shall enter into force on the thirtieth
day following the date of deposit of the thirty- No reservation of peremptory norms. – Reservations that
fifth instrument of ratification or accession.” offend jus cogens norms would not be compatible with the
object and purpose of the covenant. Accordingly,
Provisional application. – A treaty or an agreement among provisions therein which represent customary
the parties may provide for the application of certain international law may not be the subject of reservations.
provisions before a treaty’s entry into force. (TC, Art. 25 (Brownlie, Chapter 26)
[1])
Observance of Treaties
Reservation Pacta Sunt Servanda. – Literally, “pacts must be
It is “a unilateral statement, however phrased or named, respected,” it is the fundamental principle of the law of
made by a State, when signing, ratifying, accepting, treaties. Every treaty in force is binding upon the parties to
approving or acceding to a treaty, whereby it purports to it and must be performed by them in good faith. (TC, Art.
exclude or to modify the legal effect of certain provisions 26)
of the treaty in their application to that State.” (TC, Art. 2
[1d]) Cannot invoke internal law to evade treaty obligations. –
General Rule: A party may not invoke the provisions of
Right to formulate reservations; Exceptions. – A State its internal law as justification for its
may, when signing, ratifying, accepting, approving or failure to perform a treaty. (TC, Art. 27)
acceding to a treaty, formulate a reservation. (TC, Art. 19) Exceptions: The violation concerns the state’s
competence to conclude treaties; or
It is a right that pertains to the sovereignty and The violation concerned a rule of
independence of a state in regulating its foreign relations. internal law of fundamental
It aids the development of international relations by importance. (TC, Art. 46, infra.)
enabling states to ratify treaties which they would not
have otherwise ratified had they not been able to make Retroactivity. –
reservations thereto. (Magallona, 2005) General Rule: No retroactive application. It cannot bind
a party in relation to any act or fact
There are three (3) exceptions to this grant: which took place or ceased to exist
a) the reservation is prohibited by the treaty; before the fate of the entry into force.
b) the treaty provides that only specified (TC, Art. 28)
reservations, which do not include the Exception: Unless a different intention appears from
reservation in question, may be made; or the treaty. (ibid.)
c) in cases not failing under subparagraphs (a) and
(b), the reservation is incompatible with the Treaties and Third States
object and purpose of the treaty. (TC, Art. 19) General Rule: Pacta tertiis nec nocent nec prosunt – A
treaty does not create either obligations
Consent/acceptance by other state parties. – or rights for a third State without its
General Rule: Acceptance by other parties not required consent. (TC, Art. 34)
for reservations expressly allowed by the Exceptions: Express acceptance. – Parties to the
treaty. (TC, Art. 20) treaty establish an obligation therein,
Exception: Acceptance will be required in the and the third state expressly accepts
following cases: the obligation in writing; (TC, Art. 35)
1. When it appears from the limited Stipulations pour autrui. – Treaty gives
number of the negotiating States third states rights, and a third state
and the object and purpose of a gives his assent thereto. (TC. Art. 35)
treaty that the application of the Treaty as customary international law.
treaty in its entirety between all – A treaty may become binding on
the parties is an essential condition non-parties if it becomes a part of
of the consent of each one to be international custom. (Brownlie,
bound by the treaty; (TC, Art. 20 Chapter 26) (TC, Art. 38)
[2])
2. When a treaty is a constituent Interpretation of Treaties
instrument of an international
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dependent on the form of succession and the b) the effect of the change is radically to
type of treaty concerned. transform the extent of obligations still
2. War and armed conflict to be performed under the treaty.
While hostile relations do not automatically 8. Emergence of a conflicting jus cogens norm (TC, Art.
suspend or terminate treaties, it is possible for 64)
war conditions to lead to termination of treaties If a new peremptory norm of general
on grounds of impossibility or fundamental international law emerges, any existing treaty
change of circumstances. which is in conflict with that norm becomes void
3. Operation of treaty provisions (TC, Art. 54 [a]) and terminates.
The treaty may be terminated pursuant to
conductions for such specified therein. Voidable treaties. – Certain grounds of both invalidity and
4. Termination by agreement (TC, Art. 54 [b]) termination must be invoked by a party and so such
Termination of or withdrawal from a treaty may treaties concerned are simply voidable. These are:
take place at any time by consent of all parties. Invalidity:
5. Material breach (TC, Art. 60) o Violation of provisions of internal law
A material breach consists in: regarding competence to conclude
Repudiation of the treaty not sanction treaties;
by the present Convention; o Representative’s lack of authority;
Violation of a provision essential to the o Error;
accomplishment of the object or o Fraud;
purpose of the treaty. o Corruption of Representative.
Termination:
In bilateral agreements, a breach by one entitles o Material breach;
the other to invoke such breach as a ground for o Impossibility;
termination. o Fundamental change in
circumstances.(Brownlie, Chapter 26)
In multilateral agreements, a breach by one may
lead to: Void treaties. – The following grounds render a treaty void:
Removal of the state in breach from Coercion of a state
the treaty relation; Conflict with jus cogens (ibid.)
Termination of the treaty;
Suspension of the treaty only between In the case of the Philippines, the treaty-making
a specially affected state and the one process consists of the following steps:
in breach; 1. Negotiation
6. Supervening impossibility of performance (TC, Art. 2. Signature
61) 3. Ratification
A party may invoke the impossibility of
performing a treaty as a ground for terminating Note that affixation of the Philippine representative’s
or withdrawing from it if the impossibility results signature does not constitute consent to be bound.
from the permanent disappearance or This is due to the requirement in Art. VII, Sec. 21 for
destruction of an object indispensable for the the 2/3 concurrence of the Senate for a treaty to be
execution of the treaty. valid and effective.
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Section 4 of RA 9184 states that: Prof. Roque commented that the ruling was “stupid”
for the following reasons:
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This contravenes the sovereignty of the state; executive agreements must comply with the laws they
The World Bank is not a state that could be a implement. Only a treaty, upon ratification of the Senate,
party to a treaty; its guidelines were not even in acquires the status of municipal law.
the form of a treaty;
There is no conflict between PH and WB rules That the Chinese government handpicked ZTE Corporation
regarding conflict of interest; In fact, the WB to supply the goods and services does not make the ZTE
guidelines are the basis of the procurement law Supply Contract an executive agreement. ZTE Corporation
in the Philippines but there is a penal clause in is not even a government agency but a business enterprise
our law (that is the only difference) performing purely commercial functions.
In ruling that this is an executive agreement, Abaya Also, an executive agreement is generally governed by
was used but the court cited a portion of Abaya international law. However the ZTE Contract itself provides
which does not exist. that it shall be governed by Philippine law. Thus, the ZTE
contract is not an executive agreements but simply a
Note that in Abaya, what was deemed an executive commercial contract, which must comply with the public
agreement was the Exchange of Notes, not the loan bidding mandated by the governing Philippine law.
agreement itself.
CLASS NOTES
CNMEG v. HONORABLE SANTA MARIA
G.R. No. 185572 (2012)
SUPLICO V. NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY CNMEG and North Luzon Railways Corporation entered
G.R. No. 178830 (2008) into an agreement that the latter will conduct a feasibility
study and construct the Northrail Project. A complaint was
The Philippine government through the DOTC entered into filed for the annulment of the contract and loan agreement
a project with the Chinese government known as the ZTE on the ground that it is unconstitutional and it also
National Broadband Network Project or the ZTE-DOTC NBN violated RA 9184. It is alleged that the contract and the
deal. Suplico sought to enjoin NEDA from pursuing, loan agreement is an executive agreement and therefore
entering into indebtedness, disbursing funds and its validity cannot be questioned before the local courts.
implementing the ZTE-DOTC Broadband Deal
The Vienna Convention on the Law of Treaties defines a
Suplico’s petition was dismissed because the issue was treaty as an international agreement concluded between
already moot. Prior to Suplico’s action, it was shown that States in written form and governed by international law,
in the Notes of Meeting between Philippines and China, whether embodied in a single instrument or in two or
the Philippine government conveyed its decision not to more related instruments and whatever its particular
continue with the project due to several constraints. The designation.
same Notes also contained President Hu Jintao’s
expression of understanding of the Philippine Government To be considered an executive agreement, the following
decision. three requisites provided under the Vienna Convention
must concur:
Carpio, J., dissenting: a) the agreement must be between states;
b) it must be written; and
The NBN Project should be declared null and void for its c) it must governed by international law.
failure to comply with requirements set by law:
1. an appropriation law funding the contract; This case lacks the first and third requisites.
2. certification of appropriation and fund availability
The agreement is not between states. The Contract
Also the Government Procurement Reform Act states that Agreement was not concluded between the Philippines
all procurement of infrastructure, goods and services shall and China, but between Northrail and CNMEG. CNMEG is
be done through Competitive Bidding. ZTE’s argument neither a government nor a government agency. Northrail
that there is no provision in the executive agreement and CNMEG entered into the Contract Agreement as
between China and the Philippines for the conduct of entities with personalities distinct and separate from the
public bidding will only be tenable if executive agreements Philippine and Chinese governments, respectively. Neither
can amend or repeal a prior law. However, executive can it be said that CNMEG acted as agent of the Chinese
agreements cannot amend or repeal a prior law. government.
An executive agreement has the force and effect of law. It is not governed by international law. Since the Contract
But like implementing rules of executive agencies, Agreement explicitly provides that Philippine law shall be
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applicable, the parties have effectively conceded that their To settle the ambiguity, the Court made reference to the
rights and obligations thereunder are not governed by Draft Terms of Reference (TOR) relating to the exercises,
international law. It is merely an ordinary commercial which expressly prohibit US involvement in combat
contract that can be questioned before the local courts. operations without prejudice to self-defense. Hence, the
Therefore it is not an executive agreement and the case Balikatan cannot be said to have authorized US
can be tried by Philippine (local courts). involvement in combat operations.
The Court in effect introduced a fourth test to The ambiguity of the meaning of the word “activities” was
consider an agreement an executive agreement – the deliberately made that way to give both parties a certain
purpose of the contract. The contract must have been leeway in negotiation. Thus, visiting US forces may sojourn
undertaken for a purpose consistent with jus imperii in Philippine territory for purposes other than military. As
(i.e. that it must be for a sovereign purpose) conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the
In the instant case, it was a mere supply agreement. nation’s marine resources, sea search-and-rescue
Hence, it must be governed by Philippine law. operations to assist vessels in distress, disaster relief
CLASS NOTES operations, civic action projects such as the building of
school houses, medical and humanitarian missions, and
the like.
As part of the Global War on Terror, US Armed Forces, in Balikatan exercises were entered into in relation to
conjunction with the Philippine military, held the Balikatan the kidnapping of Burnham spouses in Dos Palmas.
exercises – a simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty (MDT) and the The Balikatan, if found to be a rescue mission, is
Visiting Forces Agreement (VFA). unconstitutional. But this is a question of fact which
the Court refused to rule on.
Petitioners argue that the VFA does not authorize US CLASS NOTES
forces to engage in combat operations in Philippine
territory. However, through the Balikatan exercises, US
forces were engaged in combat operations against the Abu BAYAN v. ZAMORA
Sayaff. As such, they charged that the exercises were G.R. No. 138570 (2000)
unconstitutional.
BAYAN challenges the constitutionality of the Visiting
The Balikatan Exercises fall under the umbrella of Forces Agreement (VFA).
sanctioned or allowable activities in the context of the
VFA. The VFA is constitutional.
The holding of the Balikatan Exercises must be viewed in The constitutional provision which governs the VFA is
line with the Mutual Defense Treaty and the Visiting Section 25, Article XVIII of the 1987 Constitution:
Forces Agreement. The VFA permits United States “After the expiration in 1991 of the Agreement
personnel to engage, on an impermanent basis, in between the Republic of the Philippines and the
“activities,” the exact meaning of which was left undefined. United States concerning Military Bases, foreign
Since the terminology used in the VFA is ambiguous, the military bases, troops, or facilities shall not be
Court referred to the Vienna Convention on the Law of allowed in the Philippines except 1) under a
Treaties which contains provisos governing interpretations treaty 2) duly concurred in by the Senate and,
of international agreements. It clearly provides that the when the Congress so requires, ratified by a
cardinal rule of interpretation must involve an majority of the votes cast by the people in a
examination of the text, which is presumed to verbalize national referendum held for that purpose, and
the parties’ intentions. The Convention also dictates what 3) recognized as a treaty by the other
may be used as aids to deduce the meaning of terms, Contracting State.”
which it refers to as the context of the treaty, as well as
other elements may be taken into account alongside the The VFA is constitutional because it has met all the
aforesaid context. requisites laid down by Section 25, Article XVIII.
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unless concurred in by at least two-thirds of all the agents and brought to the US Embassy. The VFA is being
Members of the Senate.” assailed for being void and unconstitutional.
The Executive Secretary and the DFA do not have the The VFA is constitutional.
ministerial duty to transmit to the Senate the signed copy
of the Rome Statute even without the signature of the In Bayan vs. Zamora, the SC upheld the constitutionality of
President. the VFA stating that the VFA was duly concurred in by the
Philippine senate and has been recognized as a treaty by
Pimentel et al erroneously interpreted Section 21 to mean the US. Though the VFA was not submitted for advice and
that the power to ratify treaties belongs to the Senate and consent of the US Senate, it is still a binding international
that the signing of the treaty at the United Nations agreement or treaty recognized by the US because:
headquarters meant that it was already ratified. The Only policymaking agreements are submitted to the
power to ratify belongs to the President, but this power is US Senate;
limited by the Senate. Signing a treaty is merely a mark of Those that carry out or further implement
authentication and a symbol of good faith. It is a different policymaking agreements are submitted to Congress
step from ratification. The Philippines is not bound by under the provisions of Case-Zablocki Act.
treaty law or international law to ratify the treaty it has Submission of this kind of agreement to the US
signed. The signature on the Rome Statute does not signify Senate is not necessary;
final consent. Ratification is what will bind the Philippines The RP-US Military Defense Treaty is the
to the Statute’s provisions. The Statute itself requires that policymaking agreement, while the VFA is its
the signature of the representatives of the states be implementing agreement. The RP-US Military
subject to ratification, acceptance or approval of the Defense Treaty has been ratified & concurred by
signatory states. There is no legal obligation to ratify a both Philippine & US senates.
treaty, but a refusal to ratify must be based on substantial
grounds. The VFA is different from Medellin vs. Texas because in
that case, the US Supreme Court held that treaties entered
The treaty-making process involves the following into by the US are not automatically part of their domestic
steps law unless these treaties are self-executing or there is an
Negotiation: submissions of proposals and implementing legislation to make them enforceable.
counter-proposals
Signature: authenticates the draft instrument Comparing the VFA with the Vienna Convention on
and symbolizes the good faith of the parties. Consular Relations & the Avena decision of the
However, this does not indicate final consent of International Court of Justice (which is subject matter of
the state the Medellin decision), the VFA is a (1) self- executing
Ratification: the formal act by which a state agreement because the parties intend its provisions to be
confirms and accepts the provisions of a treaty enforceable and (2) it is covered by implementing
concluded by its representatives. legislation which is the Case-Zablocki Act. These two
Exchange of the instruments of ratification: characteristics are absent in the subject matter of the
signifies the effectivity of the treaty. Medellin decision.
CLASS NOTES
Bayan Muna may be overturned due to change
of circumstances in Salonga, this is an actual
SALONGA et. al v. SMITH et. al case or controversy unlike in Zamora which
G.R. No. 176051 (2009) involves a declaratory relief
Salonga: Mutual Defense Treaty is no longer in
Daniel Smith was a member of the US Armed Forces who effect because of the UN Charter (against the
was charged for the rape of Suzette Nicolas. Pursuant to use of force)
the Visiting Forces Agreement, US was granted custody of SC:
Smith pending the proceedings. RTC found Smith guilty. the first ruling is that there is a treaty:
Pursuant to the VFA, he shall serve his sentence in a MDT is a treaty to which VFA depends
facility that shall be agreed upon by the Philippines and US (even if VFA is not treaty)
authorities. The Romulo-Kenney agreement was entered even if there is no treaty, it is still binding
into which provided that Smith will be detained at the 1st because of an implementing legislation
floor, Rowe (JUSMAG) Building, US Embassy. The (Case-Zablocki act) but it applies only to
Philippine police & jail authorities shall have access to the executive agreements
place of detention in order to ensure the compliance of There is no distinction between treaties
the US with the terms of the VFA. Therefore, Smith was and executive agreements
taken out of the Makati jail by Philippine law enforcement
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Dissent: Medellin v. Texas discussed that a decision will only affect the relationship between the
treaty does not automatically bind the US State making the reservation and the objecting State.
The treaty must be self-executory;
There must be a domestic enabling III. (a) an objection to a reservation made by a signatory
legislation. State which has not yet ratified the Convention can have
CLASS NOTES legal effect only upon ratification. Until that moment it
merely serves as a notice to the other State of the
eventual attitude of the signatory State
RESERVATIONS TO THE CONVENTION ON THE (b) an objection to a reservation made by a State which
PREVENTION AND PUNISHMENT OF THE is entitled to sign or accede but which has not yet done
CRIME OF GENOCIDE so, is without legal effect.
ICJ Reports1951, p 15 (1951)
1. In relation to WWII genocide; scenarios:
If the reservation is allowed and ALL
The General Assembly of the United Nations requested the
accept –it will be binding
International Court of Justice for an Advisory Opinion on
If the object of the treaty is subject of the
the following questions:
convention – not allowed
I. Can the reserving State be regarded as being a
In case of reservation, the other states can
party to the Convention while still maintaining its
reservation if the reservation is objected to by object – OPPOSABILITY
2. A jus cogens norm is a peremptory norm
one or more of the parties to the Convention but
not by others? 3. A country is bound even without ratification:
II. If the answer to Question I is in the affirmative, If it codifies CIL
what is the effect of the reservation as between If the agreement is entered a third state
the reserving State and: without that a third state gave its consent
(a) The parties which object to the to be bound thereto (not pour autrui
reservation? where benefits are involved and that the
(b) Those which accept it? third state accepts)
III. What would be the legal effect as regards the 4. It is the same with contract law:
answer to Question I if an objection to a Mutuality (only the parties are bound)
reservation is made: Autonomy (like pacta sunt servanda)
(a) By a signatory which has not yet ratified? 5. A party cannot automatically opt out of the
(b) By a State entitled to sign or accede but effect of treaty as in Nicaragua
which has not yet done so? 6. In traveaux preparatoires aid to
interpretation
I. YES. A State which has made and maintained a 7. When it can be declared void:
reservation which has been objected to by one or more Void due to jus cogens
of the parties to the Convention but not by others, can Fraud and inducement
be regarded as being a party to the Convention if the No full powers
reservation is compatible with the object and purpose Error in fact and situation
of the Convention; otherwise, that State cannot be Coercion
regarded as being a party to the Convention. Corruption
II. (a) if a party to the Convention objects to a reservation Rebus sic stantibus a legal doctrine allowing for a
which it considers to be incompatible with the object treaty to become inapplicable and not binding on a
and purpose of the Convention, it can in fact consider party because of fundamental changes in the
that the reserving State is not a party to the Convention; circumstances
CLASS NOTES
(b) if, on the other hand, a party accepts the
reservation as being compatible with the object and
purpose of the Convention, it can in fact consider that CASE CONCERNING MILITARY AND
the reserving State is a party to the Convention PARAMILITARY ACTIVITIES IN AND AGAINST
No State can be bound by a reservation to which it has NICARAGUA
not consented, therefore, it necessarily follows that (NICARAGUA v. USA)
each State objecting to it will or will not, on the basis of ICJ Reports 1986, p.14 (1986), supra.
its individual appraisal within the limits of the criterion
of the object and purpose stated above, consider the
The United States questions the jurisdiction of the ICJ since
reserving State to be a party to the Convention. Such a
Nicaragua had not yet ratified the instruments relating to
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the compulsory jurisdiction of the PCIJ (predecessor of the women for compensation had already been fully satisfied
ICJ). by Japan’s compliance with the Peace Treaty between the
Philippines and Japan.
There was a valid declaration on the part of Nicaragua of
its intent to ratify. The declaration had a certain potential The Supreme Court held in this case that the Executive
effect which could be maintained for many years. Having Department has the exclusive prerogative whether or not
been made unconditionally and being valid for an it is going to espouse the claims of the Malaya Lolas. Since
unlimited period, it had retained its potential effect at the the Executive Department has determined that taking up
moment when Nicaragua became a party to the Statute of comfort women’s cause would be inimical to our country’s
the new Court. The constant acquiescence of Nicaragua foreign policy interests, to overturn the Executive
constitutes a valid mode of manifestation of its intent to Department’s determination would mean an assessment
recognize the compulsory jurisdiction of the Court. of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has
been constitutionally committed.
AKBAYAN v. AQUINO
G.R. No. 170516 (2008) The conduct of the foreign relations of our government is
committed by the Constitution to the executive and
AKBAYAN et. al requested for the full text of the Japan- legislative – the political – departments of the government
Philippines Economic Partnership Agreement (JPEPA) and the propriety of what may be done in the exercise of
including the offers made by both parties during the this political power is not subject to judicial inquiry or
negotiation process and all pertinent attachments and decision.
annexes. Undersecretary Aquino did not grant this request.
Aquino said that they shall be provided with a copy once Also, when negotiating peace accords and settling
the negotiations are completed and as soon as thorough international claims, governments have dealt with private
legal review of the proposed agreement has been claims as their own, treating them as national assets, and
conducted. AKBAYAN et. al argues that the President as counters, chips, in international bargaining. Settlement
cannot exclude the Congress since whatever power and the agreements have lumped, or linked, claims deriving from
authority the President has now pertaining to negotiations private debts with others that were intergovernmental in
is only delegated by the Congress through the Constitution. origin, and concessions in regard to one category of claims
might be set off against concessions in the other, or
The treaty making power of is exclusive to the President, against larger political considerations unrelated to debts.
subject only to the concurrence of at least 2/3 of all Except as an agreement might otherwise provide,
Members of the Senate for the validity of the treaty. As international settlements generally wipe out the
head of the State it is constitutionally vested in the office underlying private claims, thereby terminating any
as well as inherent that the President is the sole organ and recourse under domestic law.
authority in the external affairs of the country.
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Functions. – The functions of a diplomatic mission are: The distinction is essential because they are the only ones
a) Representing the sending State in the receiving State; covered by diplomatic immunities and privileges.
b) Protecting in the receiving State the interests of the
sending State and of its nationals, within the limits Commencement of diplomatic functions. – The process
permitted by international law; with regard to heads of mission is as follows:
c) Negotiating with the Government of the receiving 1. Initiation of agréation [ah-gre-ya-shawn] –
State; sending state inquires with receiving state
d) Ascertaining by all lawful means conditions and regarding the acceptability of the head of
developments in the receiving State, and reporting mission proposed to be accredited.
thereon to the Government of the sending State; 2. Issuance of the agrément [ah-gre-mahnt] – if the
e) Promoting friendly relations between the sending receiving state finds the proposed head
State and the receiving State, and developing their acceptable, the receiving state issues an
economic, cultural and scientific relations. (DC, Art. agrément (i.e. approval given by the receiving
3 [1]) state to the proposed head.)
Diplomatic missions may also perform consular functions, The receiving state may refuse agrément, and is
(DC, Art. 3 [2]) which are regulated by the Vienna not obliged to give a reason therefor.
Convention on Consular Relations. (infra.) Consent of a
receiving state to the establishment of diplomatic relations Agrément may be withdrawn by the receiving
also implies the establishment of consular relations. (CC, state only when the head of mission is not yet
Art. 2 [2]) present in its territory. Once that threshold is
crossed, it may:
The primary function of the mission is basically Ask the receiving state of his
“legitimate espionage” – that is, to collect withdrawal; or
information on the receiving state. Declare him persona non grata.
CLASS NOTES 3. Formal nomination and public announcement –
the head of state presents his diplomatic
Duties of the diplomatic mission to the receiving state. – credentials (i.e. authorization from the sending
These include: state) to the head of state of the sending state in
1. Duty to respect the laws and regulations of the a ceremony.
receiving state;
2. Duty not to interfere in the internal affairs of As to members of the staff of the mission, the sending
that state. State may freely appoint them. (DC, Art. 7)
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Failing at this, the receiving state may Continues even if diplomatic ties are
refuse to recognize the person as a severed, and even in times of armed
member of the mission. conflict (DC, Art. 45 [a])
Extends to archives and documents of
3. Death of the diplomatic agent; and the mission, wherever they may be (DC,
4. Severance of diplomatic relations, resulting in Art. 24)
permanent or temporary recall of the mission. Extends to all official correspondence
relating to the diplomatic mission (DC,
No practice of professional/commercial activity. – A Art. 27 [2])
diplomatic agent shall not practice for personal profit any Extends to the private residences of
professional or commercial activity in the receiving state. diplomatic agents (DC, Art. 30 [1])
(DC, Art. 42)
It was this duty to protect the premises of the
Members of the family not agents. - Members of the diplomatic mission that the Government of Iran failed
family of a diplomatic agent forming part of his household to discharge in the Case Concerning United States
are not diplomatic agents themselves. However, they are Diplomatic and Consular Staff in Tehran (United
nonetheless entitled to the same personal rights of States Of America v. Iran), (infra.)
diplomatic agents. (DC, Art. 36 [1]) CLASS NOTES
Diplomatic Immunities and Privileges Personal privileges, at a glance. – Diplomatic agents and
Basis. – There are three theories that form the basis of the family members forming part of their household enjoy the
grant of diplomatic immunities and privileges: following rights:
1. Extraterritoriality theory – premises of the Personal inviolability; (Art. 29)
diplomatic mission represent an extension of the Immunity from jurisdiction; (Art. 31)
territory of the sending state; Exemption from social security provisions; (Art.
2. Representational theory – the mission 33)
personifies the sending state; and Exemption from dues and taxes; (Art. 34)
3. Functional necessity theory – it ensures the Exemption from personal services; (Art. 35)
efficient performance of its functions.
Exemption from customs duties and related
charges; (Art. 36)
Inviolability of the diplomatic premises. – The diplomatic
premises consist of:
Classes of immunities. – The application of the succeeding
Buildings or parts of buildings and the land ancillary immunities is qualified by the designation of the person
thereto, irrespective of ownership, used for the
concerned. To wit:
purposes of the mission; and
The residence of the head of the mission; (DC, Art. 1 Diplomatic Personal inviolability; (Art. 29)
[i]) Staff and their Immunity from jurisdiction; (Art.
Families 31)
The premises of the mission shall be inviolable. It consists
Criminal: FULL IMMUNITY
of three elements:
Civil: FULL IMMUNITY, with
1. The agents of the receiving state may not enter
exceptions (1-3)
them, except with the consent of the head of the
Exemption from social security
mission. (DC, Art. 22 [1])
provisions; (Art. 33)
No legal writ may be served inside
Exemption from dues and taxes;
without consent.
(Art. 34)
2. Special duty of the receiving state to take all
Exemption from personal services;
appropriate steps to protect the premises of the
(Art. 35)
mission against any intrusion or damage and to
Exemption from customs duties
prevent any disturbance of the peace of the
and related charges; (Art. 36)
mission or impairment of its dignity. (DC, Art. 22
[2])
3. The premises of the mission, their furnishings Administrative Personal inviolability; (Art. 29)
and other property thereon and the means of and Technical Immunity from jurisdiction; (Art.
transport of the mission shall be immune from Staff: 31)
search, requisition, attachment or execution. (DC, Criminal: FULL IMMUNITY
Art. 22 [3]) Civil: FUNCTIONAL IMMUNITY
Exemption from social security
provisions; (Art. 33)
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PUBLIC INTERNATIONAL LAW A2015
Exemption from dues and taxes; discharge of his duties, he may be held liable for the
(Art. 34) same.
Exemption from personal services;
(Art. 35) Q: If a diplomatic mission rents a lot for its
embassy, but the lot is subject to a deed of
Service Staff: Immunity in respect of acts restriction which was breached by the former,
performed in the course of their can the restriction be enforced against the
duties (FUNCTIONAL) (Art. 37 [3]) mission?
Exemption from dues and taxes on Theoretically, you can sue the lessor (i.e. owner of the
the emoluments they receive by lot) and receive judgment. However, it would not be
reason of their employment possible to enforce the judgment against the mission
Exemption from social security since the premises of the embassy, leased or
provisions; (Art. 33) otherwise, is inviolable and no legal writ may be
served therein.
Personal inviolability of the diplomatic agent. – The
person of a diplomatic agent shall be inviolable. He shall This immunity from jurisdiction may be waived by the
not be liable to any form of arrest or detention. The sending state, by way of express waiver. But, this does
receiving State shall treat him with due respect and shall amount to waiver of immunity with respect to execution
take all appropriate steps to prevent any attack on his of judgment, for which a separate waiver shall be
person, freedom or dignity. (DC, Art. 29) necessary. (DC, Art. 32)
Immunity from jurisdiction. – A diplomatic agent enjoys Exemption from all dues and taxes. – A diplomatic agent
immunity from the following: shall be exempt from all dues and taxes, personal or real,
1. Criminal jurisdiction; national, regional or municipal, except:
2. Civil and administrative jurisdiction; a) Indirect taxes of a kind which are normally
Exceptions: incorporated in the price of goods or services;
i. A real action relating to private b) Dues and taxes on private immovable property
immovable property situated in the situated in the territory of the receiving State,
territory of the receiving State, unless unless he holds it on behalf of the sending State
he holds it on behalf of the sending for the purposes of the mission;
State for the purposes of the mission; c) Estate, succession or inheritance duties levied by
ii. An action relating to succession in which the receiving State;
the diplomatic agent is involved as d) Dues and taxes on private income having its
executor, administrator, heir or legatee source in the receiving State and capital taxes on
as a private person and not on behalf of investments made in commercial undertakings in
the sending State; the receiving State;
iii. An action relating to any professional or e) Charges levied for specific services rendered;
commercial activity exercised by the f) Registration, court or record fees, mortgage
diplomatic agent in the receiving State dues and stamp duty, with respect to immovable
outside his official functions. (DC, Art. property; (DC, Art. 34)
31 [1])
Exemption from personal services. – The receiving State
Q: If the secretary of the Ambassador were to be shall exempt diplomatic agents from all personal services,
charged administratively with sexual from all public service of any kind whatsoever, and from
harassment, would he be immune? military obligations such as those connected with
No. The secretary falls under “administrative and requisitioning, military contributions and billeting. (DC, Art.
technical staff,” and thus only has FUNCTIONAL civil 35)
and administrative immunity.
Exemption from customs duties and related charges. -
Since the sexual harassment was not part of the The receiving State shall, in accordance with such laws and
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Some diplomatic officers abuse this privilege by This makes the following possible:
importing local goods duty-free, then selling them in • Establishment of diplomatic relations without
their areas. “Maliit sweldo nila e. Pero at least may consular relations, by express declaration; and
natitirhan ako for free when I’m abroad.” (Roque, • Establishment of consular relations initially, ahead or
2013) as a preliminary step to diplomatic relations.
CLASS NOTES
Functions. – Consular functions consist in:
Period of enjoyment. – The privileges and immunities shall a) Protecting in the receiving State the interests of the
be enjoyed: sending State and of its nationals;
FROM the moment he enters the territory of the b) Furthering the development of commercial, economic,
receiving State on proceeding to take up his post cultural and scientific relations between the sending
or, if already in its territory, from the moment State and the receiving State and otherwise
when his appointment is notified to the Ministry promoting friendly relations between them;
for Foreign Affairs; c) Ascertaining by all lawful means conditions and
TO when he leaves the country after the basis developments in the commercial, economic, cultural
for his immunity ends. and scientific life of the receiving State, reporting
o It subsists for a reasonable time even thereon to the Government of the sending State;
after his functions end, up the time he d) Issuing passports and travel documents to nationals
leaves the receiving state. of the sending State, and visas or appropriate
o But, with respect to acts performed by documents to persons wishing to travel to the
such a person in the exercise of his sending State;
functions as a member of the mission, e) Helping and assisting nationals, both individuals and
immunity shall continue to subsist. bodies corporate, of the sending State;
f) Acting as notary and civil registrar, and performing
Immunity while in transit. - If a diplomatic agent passes certain functions of an administrative nature;
through or is in the territory of a third State in the process g) Safeguarding, within the limits imposed by the laws
of: and regulations of the receiving State, the interests of
proceeding to take up or to return to his post; or minors and other persons lacking full capacity who
when returning to his own country, are nationals of the sending State;
h) Representing or arranging appropriate representation
Such third State shall accord him inviolability and such for nationals of the sending State before the tribunals
other immunities as may be required to ensure his transit and other authorities of the receiving State;
or return. i) Transmitting judicial and extrajudicial documents or
executing letters rogatory or commissions to take
This does not include vacations to third states. evidence for the courts of the sending State;
CLASS NOTES j) Exercising rights of supervision and inspection in
respect of vessels having the nationality of the
This right also applies with regard to: sending State, and of aircraft registered in that State,
Any members of his family enjoying privileges or and in respect of their crews, and extending them
immunities who are accompanying the assistance;
diplomatic agent, or travelling separately to join k) Performing any other functions entrusted to a
him or to return to their country; consular post. (CC, Art. 5, paraphrased)
Official correspondence and communications;
Consular officers may also perform diplomatic functions or
acts granted these conditions:
• The sending state has no diplomatic mission in the
VIENNA CONVENTION ON CONSULAR receiving state;
RELATIONS • The sending state is not represented by a diplomatic
mission of a third state therein;
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• The receiving state consents to the arrangement. (CC, 2. Transmission of consular commission – The
Art. 17 [1]) consular commission is transmitted to the
receiving state for consideration. (CC, Art. 11 [2])
Note, however, that the performance of diplomatic acts 3. Issuance of exequatur – If the receiving state is in
does not alter the legal status of the consular officer and agreement, it shall issue an exequatur – an
does not confer upon him diplomatic privileges and authorization from the receiving state by which
immunities. (ibid.) the head of a consular post is admitted to the
exercise of consular functions. (CC, Art. 12 [1])
Consular Post.
It is a consulate-general, consulate, vice-consulate, or A receiving state may refuse to issue an
consular agency which exercises consular functions over a exequatur, and is under no obligation to explain
particular consular district. (CC, Art. 3) itself. (CC, Art. 12 [2])
Consular district. – It is a geographic area assigned or The exequatur covers the members of the
defined by the sending state for the exercise of consular consular staff working under the head’s orders
functions. (CC, 1 [1b]) and responsibility. But the receiving state may
nonetheless require an exequatur for consular
Establishment. – They may be established in the territory staff if it wishes. (CC, Art. 19 [1])
of the receiving State only with that State’s consent. In
particular, the following are subject to the approval of the A head is not allowed to exercise consular
sending state: functions without an exequatur. There are,
• Seat of the consular post, and subsequent changes however two exceptions to this rule:
thereto; • Admission on a provisional basis, pending
• Opening of a vice-consulate or consular agency in delivery of the exequatur; (CC, Art. 13)
different consular seat; • Appointment of an acting head of the
• Opening of an office forming part of an existing consular post, in the event that the head
consular post elsewhere than at the seat thereof. (CC, can no longer discharge his functions or in
Art. 4) case of vacancy. (CC, Art. 15)
Consular functions may also be undertaken by a Appointment of the consular staff. – The sending state
diplomatic mission. (CC, Art. 3) may freely appoint the members of the consular staff.
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6. Death of the consular staff member; and any national of the sending State who is in prison, custody
7. Severance of consular relations, resulting in or detention in their district in pursuance of a judgment.
permanent or temporary recall of the post. (CC, Art. 36)
Members of the family enjoy privileges. - Members of the It was this duty to inform the consular agents of
family of a member of a consular post forming part of his Mexico that the United States failed to discharge in
household shall enjoy the same privileges and immunities the Case Concerning Avena and other Mexican
accorded to him. (CC, Art. 53 [2]) Nationals (Mexico v. United States Of America), infra.
CLASS NOTES
Duties of the Receiving State
Freedom of movement. - The receiving State shall ensure Consular Immunities and Privileges
freedom of movement and travel in its territory to all Inviolability of the consular premises. – The consular
members of the consular post. (CC, Art. 34) premises are the buildings or parts of buildings and the
land ancillary thereto, irrespective of ownership, used
Freedom of information. – The receiving state shall permit exclusively for the purposes of the consular post. (CC, Art.
and protect freedom of information on the part of the 1 [1j])
consular post for all official purposes. (CC, Art. 35 [1])
Consular premises are inviolable to the extent of the
In communicating with the Government, the diplomatic following: (CC, Art. 33 [1])
missions and other consular posts, wherever situated, of 1. The authorities of the receiving State shall not
the sending State, the consular post may employ all enter that part of the consular premises which is
appropriate means, including diplomatic or consular used exclusively for the purpose of the work of
couriers, diplomatic or consular bags and messages in the consular post
code or cipher. (ibid.) • Except with the consent of the head of
the consular post or of his designee or
The official correspondence of the consular post shall be of the head of the diplomatic mission
inviolable. (CC, Art. 35 [2]) of the sending State.
• Such consent may be assumed in case
Give information on death, guardianship, shipwrecks and of fire or other disaster requiring
air crashes. - If the relevant information is available to the prompt protective action. (CC, Art. 33
receiving State, such authorities shall have the duty to [2])
inform the post without delay of the following: 2. The receiving State is under a special duty to
a) Death of a national of the sending State, to the take all appropriate steps to protect the consular
consular post in whose district the death premises against any intrusion or damage and to
occurred; prevent any disturbance of the peace of the
b) Any case where the appointment of a guardian consular post or impairment of its dignity; (CC,
or trustee appears to be in the interests of a Art. 33 [3])
minor or other person lacking full capacity who is • This extends to the consular archives
a national of the sending State; and documents, wherever they may be.
c) if a vessel, having the nationality of the sending (CC, Art. 33)
State, is wrecked or runs aground in the 3. The consular premises, their furnishings, the
territorial sea or internal waters of the receiving property of the consular post and its means of
State, or if an aircraft registered in the sending transport shall be immune from any form of
State suffers an accident on the territory of the requisition for purposes of national defense or
receiving State, to the consular post nearest to public utility.
the scene of the occurrence. (CC, Art. 37) • If expropriation is necessary for such
purposes, all possible steps shall be
Duties and rights with regard to nationals of the sending taken to avoid impeding the
state in the custody of the receiving state. - If the national performance of consular functions,
so requests, the competent authorities of the receiving and prompt, adequate and effective
State shall, without delay, inform the consular post of the compensation shall be paid to the
sending State if, within its consular district, a national of sending State. (CC, Art. 33[4])
that State is arrested or committed to prison or to custody
pending trial or is detained in any other manner. Exemption from taxation of consular premises. - Consular
premises and the residence of the career head of consular
Consular officers shall have the right to visit a national of post of which the sending State or any person acting on its
the sending State who is in prison, custody or detention, to behalf is the owner or lessee shall be exempt from all
converse and correspond with him and to arrange for his national, regional or municipal dues and taxes whatsoever,
legal representation. They shall also have the right to visit
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other than such as represent payment for specific services o Taxes on private income, including capital gains,
rendered. (CC, Art. 32) and investment income, and sourced from the
receiving state;
Personal inviolability of consular officers. – Consular o Charges on specific services rendered; and
officers enjoy the following rights as to their personal o Registration, court or record fees, mortgage
inviolability: dues, and stamp duties in private transactions.
1. They are not liable to arrest or detention • Customs duties and inspection;
pending trial; • All personal services, public services of any kind, and
• Except in case of grave crime and military obligations. (CC, Art. 52)
pursuant to a decision of a competent
judicial authority; (CC, Art. 41 [1]) The above exemptions do not apply to the following:
2. They shall not be committed to prison not be • Consular employees and members of the service staff
subject to any other form of restriction to who carry on private gainful occupation in the
personal freedom; receiving state; (CC, Art. 57 [2a])
• Except in case of grave crime and • Members of the family of said employees and staff
pursuant to a decision of a competent members; (CC, Art.57 [2b])
judicial authority, or in the execution • Members of the family of consular post members
of a final judicial decision. (CC, Art. 41 who themselves carry on private gainful occupation in
[2]) the receiving state; (CC, Art. 57 [2c])
• Members of the family of honorary consular officers;
Immunity from jurisdiction; Functional immunity. – (CC, Art. 58 [3])
Consular officers and employees are immune from the • Members of the family of consular employees in the
jurisdiction of administrative and judicial authorities with consular posts headed by honorary consular officers
respect to acts performed in the exercise of consular (CC,Art. 58 [3] )
functions. (CC, Art. 43)
CASE CONCERNING UNITED STATES
This exemption, however, does not apply in the following DIPLOMATIC AND CONSULAR STAFF IN
civil cases: TEHRAN (UNITED STATES OF AMERICA v. IRAN)
• Arising out of a contract concluded by a consular ICJ Reports 1980, p. 3 (1980)
officer or a consular employee in which he did not
contract expressly or impliedly as an agent of the The US instituted proceedings against Iran arising out of an
sending State; or armed attack at its Embassy and Consulates in Iran and the
• By a third party for damage arising from an accident seizure and detention as hostages of its diplomatic and
in the receiving State caused by a vehicle, vessel or consular staff and two more US citizens.
aircraft. (CC, Art.43)
Iran breached its obligations under the Vienna
This immunity from jurisdiction may be waived by the Conventions on Diplomatic Relations and Consular
sending state, by way of express waiver. (CC, Art. 45 [1]) Relations.
Exemption from certain requirements of the receiving Under the Vienna Convention on Diplomatic Relations and
state. – Members of the consular post are entitled to the Consular Relations, Iran was obligated to take appropriate
following exemptions: steps to protect the US Embassy and Consulates. However,
• Registration of aliens and residence permits; (CC, Art. it did nothing to prevent the attack, stop it before it
46 [1]) reached its completion or oblige the militants to withdraw
• Work permits for employment of foreign labor, with from the premises and release the hostages. This inaction
respect to services rendered by them for the sending is a clear and serious violation of Iran’s obligations under
state (CC, Art. 47 [1]) the said Conventions.
• Social security provisions, with respect to services
rendered by them for the sending state (CC, Art. 48 The obligations laid on States by the two Vienna
[1]) Conventions are of cardinal importance for the
• All dues and taxes, personal or real, national, regional maintenance of good relations between States in the
or municipal, except: (CC, Art. 49 [1]) interdependent world of today. There is no more
o Indirect taxes normally incorporated in the price; fundamental prerequisite for the conduct of relations
o Taxes or dues on private immovable property in between States than the inviolability of diplomatic envoys
the territory of the receiving state; and embassies, so that throughout history nations of all
o Estate succession or inheritance taxes and duties creeds and cultures have observed reciprocal obligations
on transfers; for that purpose. The institution of diplomacy has proved
to be an instrument essential for effective Cooperation in
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the international community, and for enabling States, authorities caused actual prejudice to the defendant in the
irrespective of their differing constitutional and social process of administration of criminal justice.
systems, to achieve mutual understanding and to resolve
their differences by peaceful means.
International Organizations
CASE CONCERNING AVENA AND OTHER
MEXICAN NATIONALS (MEXICO v. UNITED
STATES OF AMERICA)
ICJ Reports 2004, p. 12 (2004) A. The UN Charter and the Use
of Force
52 individuals were convicted and sentenced to death in
the United States. Mexico alleged that all 52 were Mexican UN Charter, Art. 2
nationals at the time of arrest and that these individuals
were not informed of their rights under Art 36 of the The Organization and its Members, in pursuit of
Vienna Convention on Consular Relations. Mexico the Purposes stated in Article 1, shall act in
instituted proceedings against the United States for accordance with the following Principles.
violations of the Vienna Convention on Consular Relations. xxx
Mexico asks the Court to declare that the United States, in (3) All Members shall settle their
arresting, detaining, trying, convicting and sentencing the international disputes by peaceful means
54 Mexican nationals on death row, violated its in such a manner that international peace
international legal obligations to Mexico, in its own right and security, and justice, are not
and in the exercise of its right of consular protection of its endangered.
nationals, as provided by Articles 5 and 36 of the Vienna (4) All Members shall refrain in their
Convention. international relations from the threat or
use of force against the territorial
The United States violated its obligation under Art 36 of integrity or political independence of any
the Vienna Convention. state, or in any other manner
inconsistent with the Purposes of the
The Court noted that the Vienna Convention did not United Nations.
provide a definition of the phrase “without delay.” By
looking at the object and purpose of the Convention, the Membership
phrase “without delay” means there is a duty upon the
arresting authorities to give to an arrested person
UN Charter, Art. 4
information of the rights under Article 36 as soon as it is
realized that the person is a foreign national, or once there
are grounds to think that the person is probably a foreign 1. Membership in the United Nations is open to
national. all other peace-loving states which accept the
obligations contained in the present Charter
and, in the judgment of the Organization, are
The three elements under Art 36, paragraph 1(b) are:
a) right of individual concerned to be informed without able and willing to carry out these obligations.
delay of his rights;
b) right of the consular post to be notified without 2. The admission of any such state to
membership in the United Nations will be
delay of the individual’s detention, if he so requests;
c) obligation of the receiving State to forward without effected by a decision of the General Assembly
delay any communication addressed to the consular upon the recommendation of the Security
post by the detained person. Council.
Mexican nationals have never been informed of their Requisites for Admission as UN Member:
rights under Art 36, par 1(b). Thus, in each of these 47 1) a State;
cases, the duty to inform “without delay” has been 2) peace-loving;
violated. Thus, the United States violated its obligation 3) must accept the obligations of the Charter;
under Art 36 par 1(b). In view of these violations, the US is 4) must be able to carry out these obligations;
under an obligation to permit review and reconsideration 5) must be willing to do so.
of the conviction and sentence of these nationals’ cases by
the US courts ascertaining whether in each case the This list is exclusive. No additional requirements may be
violation of Art 36 committed by the competent required by any state. (Competence of the General
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ally and to stop a mere critical resolution the US became relatively unsupportive and made
directed against an ally reservations about withholding funds for the UN.
• It was from these circumstances when the Security • Reforms in the UN
Council became increasingly impotent to act, either o Weighted voting system
militarily and politically The weighted voting in the General
• View of the US and the West on the UN's role in Assembly would represent an affront to an
peace keeping underlying principle on which the UN is
o Because of the failure of the Security Council to based - the sovereign equality of all its
agree on the establishment of the UN Force, member States
peace cannot be enforced nor could the UN The European Community was of the
members be compelled to offer troops opinion that the weighted voting system is
o As an alternative, they are of the view that if selective adherence to the principle 'pacta
peace could not be kept by enforcing it, it may sunt servanda' and such erodes the very
be done by policing a territory at the request of foundation of the international order
a State and if the UN members volunteered for Gives the states that contribute a greater
such force share to the UN coffers greater influence in
• View of the Soviet Union and its allies the determination of the budget
o The provisions for the use of force by the UN are o New agenda of achieving greater efficiency in
very specific and if those procedures could not the use of resources
be acted upon, alternatives not provided for in o A paralyzing contradiction in the UN affairs
the Charter were necessarily unlawful o States proclaim their desire for expansion in the
o Since the Charter contemplates on the control role of the UN in areas such as the maintenance
given to the intended Military Staff Committee of international peace and UN peace-keeping,
(by virtue of the veto power), a police force and on the other hand, the lack of provision of
acting outside the Charter would consequently finances to achieve the greater possibilities that
then be beyond the control by veto. In effect, now exist is accepted as a reality of international
the Secretary-General would then be forced to politics.
control in a day-to-day basis – something which
is contrary to the intentions of the founding Political Bodies and Quasi-Judicial Activities
instrument All the routine political activities of the UN must comply
• There is also an idea that a UN police force could be not only with the specific requirements of the Charter, but
ordered not only by the Security Council, but even by with general international law decisions of the political
the General Assembly in cases where the veto power organs of the UN, in the context of dispute resolution,
make it impossible for the Security Council to act often make determinations of international law
o This view is acceptable to the West but not to
the Soviet Union Example: the Security Council has passed resolutions
o It was against this background that the first UN claiming some independent government as having no
peace-keeping force, the UN Emergency Force validity or as illegal regimes
(UNEF) was established in 1956 to oversee the
cease-fire and to monitor the withdrawal of the It is desirable that the Security Council upholds and
British, French, and Israeli forces from Egyptian invokes international law. However, some considerations
territory. The Soviet Union & its allies, as well as shall be made:
France, refused to pay contributions for the 1. When determinations that purport to pronounce
costs of the UNEF. From then on, the Soviet authoritatively on international law are made
Union has always refused to pay its share. The Must be made with an understanding of the
other States took advantage of this situation and issues
refused to pay as well. From the outset, the Higgins is of the opinion that there is little
financing of UN peace-keeping was insecure and evidence in the debates that the Security
problematic. Despite of these circumstances, the Council reached its determinations by
UN forces were successfully established. careful legal analysis
• Even if, because of the veto, the UN could not control 2. The extent to which quasi-judicial determination
the use of force by the Big Powers, it seemed that it by the Security Council is in fact appropriate
had a constructive role to play in controlling force by Quasi-judicial determination occurs when
smaller states the Security Council does not merely point
• It was only in the 1980s when the Soviet Union the parties towards the various options
started to see the advantages of the UN. Its payment open to them for the political settlement of
of its past and present dues is a clear indication that disputes, but makes its own proposals for
there was a legal obligation to pay. On the other hand, the substance of the solution. Hence, some
claims on which is right or wrong are
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implicitly passed on in the context of Security Council retains its responsibility to take
decisions and are subsequently deemed as such action as it deems fit
international law Article 2(4) explains what is prohibited, Article 51
what is permitted
Conclusion Issue: Can there be a use of force that is not against
• The UN Charter is an extraordinary instrument the territorial integrity or political independence of a
• Peace-keeping is not fully envisaged by the state (not violative of Art 2) but is also not individual
Charter but is now an important reality or collective self-defense (permitted under Article
• There are various indications that the Security 51)
Council is setting out on other new paths, o It is unlikely because most uses of force violate a
however, such paths significantly risk legal state’s territorial integrity
incoherence o Applicable case: Corfu Channel Case
• Peace-keeping will not go away, together with Self-help – use of force to obtain legal
more orthodox international cooperation even rights improperly denied. It is unlawful
further variations of the intentions of Chapter VII under the Charter.
o the responsibilities of the UN will only be Reprisals
realized if the states want to do so o Reprisals consist of action in response to a prior
unlawful military attack, aimed not at defending
oneself against an attack as it happens, but
HIGGINS, CHAPTER 14: rather at delivering a message of deterrence
THE INDIVIDUAL USE OF FORCE IN against the initial attack being repeated.
INTERNATIONAL LAW o Under customary international law, reprisals
were lawful if certain criteria were met
History o Reprisals would necessarily involve a violation of
o Grotius insisted that the law of nations limited Article 2(4), however, and, not being self-
defense, are not brought within the permissive
the use of force to three justifiable causes:
defense, recovery of property, and punishment use of force in Article 51.
o Covenant of the League of Nations sought o The texts of articles 2(4) and 51 clearly do not
further to control and contain the use of force, allow reprisals; and the study of other
without prohibiting it instruments and practices and judicial decisions
o After World War II, the UN Charter limited does not allow one to conclude that there has
permitted uses of force to self-defense or the been any de facto amendment of the Charter on
collective enforcement action this point- notwithstanding the fact that, in the
absence of effective means of self-protection,
The UN was given powers which were intended to
reprisals may be expected to continue.
allow states to avoid unilateral reliance on the
military instrument to guarantee their own security
Anticipatory Self-Defense
Problem: the Charter was formulated to address the
Article 51 allows self-defense only when an armed
problem of military hostilities between states and
attack has occurred
before the development of the atomic bomb. Its
Under customary international law, self-defense
provisions were not only predicated upon a
must be tested in the criteria laid down in the
collective security system that was never a reality,
Caroline Case of 1842
they did not envisage the new types of violence, and
o Caroline Case doctrine: that anticipatory self-
the social conditions that were their origin and their
defense must be restricted to those cases where
consequence.
the necessity is instant, overwhelming, and
The Relationship between Article 2(4) and Article leaving no choice of means, and no moment for
51 deliberation
Article 2(4): All members shall refrain in their o While the UN Charter have its own procedure for
international relations from the threat or use of dealing with international threats to peace, one
force against the territorial integrity or political that may be contained or turned aside through
independence of any state, or in any other manner calling an emergency meeting of the Security
inconsistent with the purposes of the UN Council consequently does not pass the Caroline
Case doctrine
Article 51: indicates that there are certain uses of
o The Caroline Case doctrine, according to Higgins,
force that will not contravene the prohibitions in
provides the required balance between allowing
Article 2(4)
a state to be obliterated and encouraging
o On one hand, a state may act in self-defense
abusive claims of self-defense; also, it has a great
without first securing the permission of the
operational relevance
Security Council, while on the other hand, the
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The nuclear age made it impossible that an imminent, if there was a failure or
ambiguous provision be interpreted in a way that inability on the part of the
requires a state passively to accept its fate before it territorial sovereignty to protect
can defend itself them, and if the measures of
Because of the decentralized legal order, abusive protection were strictly confined
claims may always be made by states claiming to act to the object of protecting them
in anticipatory self-defense against injury
A claim on humanitarian
What Constitutes „the State‟ for Purposes of Self- intervention based on self-
Determination defense could only be advanced
By virtue of Article 2(4), the use of force is in respect of nationals, because it
prohibited against a state’s dependent territories is predicated on the argument
overseas, as much as against the metropolitan state that the state is being harmed
itself through injury to its nationals,
On use of force against one’s nationals abroad and can therefore respond in self-
o It may only be justified as self-defense if there defense
has been an attack upon ‘the state’ Given our decentralized legal order, claims may
o Professor Bowett, invoking the General either be made in good faith or abusively. Norms will
Assembly’s 1970 Declaration of Principle on never be able to remove the possibility of abusive
Friendly Relations, suggested that use of force claims; they (norms) are only for the achievement of
against one’s nationals abroad may be justified values for the common good.
on the ground that population is an essential To determine the validity of claims, contextual
ingredient of the state analysis by appropriate decision makers is always
o Justification in customary international law: the required. Claims determined to be valid should not a
right to humanitarian intervention on behalf of priori be allowed or disallowed because they may be
threatened citizens abroad unjustly invoked.
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prohibitions, and while also denouncing the UN Action for, or Authorization of, enforcement
legality of the action of the other in lending such Measures for Humanitarian Purposes
assistance Article 2(7) provides that the UN may not intervene
An armed attack could take place directly, through in matters which are essentially within the domestic
the use of one’s own forces, or indirectly, through jurisdiction of any state. Also, Article 2(7) itself says
armed bands or irregulars that its provisions do not prejudice the application
o Key: scale of the activity of enforcement measures under Chapter VII
If it is not very substantial, it may still be an Articles 41 and 42 are for the maintenance or
unlawful use of force, but it will not be an restoring of international peace and security. It is
armed attack- and hence no self-defense clear that measures under these Articles depend
may be used against it upon there having been a finding under Article 29 of
o Higgins observes two points: the existence of any threat to the peace, breach of
The Court was purporting to deal with the peace, or act of aggression. The only way in
customary international law rather than the which economic or military sanctions for human-
Charter rights purposes could lawfully be mounted under
The Court in terms avoided pronouncing the Charter is by the legal fiction that human-rights
upon the implications of all this for the violations are causing a threat to international peace.
question of whether there exists a right of Higgins is of the opinion that we may say that there
anticipatory self-defense may be an increasing tendency for the Security
Council to characterize humanitarian concerns as
The Doctrinal Debates threats to international peace- and thus bring them
Issue: whether the failure of the international within the potential reach of Chapter VII of the
system, coupled with fundamentally changed Charter. However, it is too early to say that a norm
circumstances since the time when the relevant about it has clearly emerged.
texts were agreed, makes preferable unilateral It is clear that opening the door to military
action for the common good even if it is at variance intervention for humanitarian purposes around the
with the norms articulated in the Charter and world will place an unbearable burden on the UN
elsewhere enforcement mechanisms, whether through direct
o Answered in the affirmative by Professor UN action or through UN-authorized action.
Reisman
o Professor Reisman: norms are instruments The Use of Force to Support UN Resolutions
devised by human beings to precipitate desired Issue: whether the Security Council can call for the
social consequences. One should not seek a use of force to compel compliance with its own
point-for-point conformity to a rule without resolutions
constant regard for the policy for principle that Applicable provision: Article 41
animated its prescription, with appropriate Implication: force could be authorized to implement
regard for the factual constellation in the minds economic sanctions without that use of force being
of the drafters viewed as military sanctions under Article 42
o Higgins: there is a distinction between non- o Just as a minimal use of force by UN peace-
compliance and interpretation infra legem to keeping operations may be authorized by
achieve certain outcomes reference to article 41 of the Charter, so limited
For Higgins, the application of Article 2(4) and Article force may apparently be authorized by reference
51 has been very unsatisfactory. However, he is not to Article 41 – even though neither article
convinced that they have no useful purpose to envisages that possibility
perform or that unilateral outcome-directed action There is no entitlement in the hands of individual
without reference to common norms is not members of the UN to enforce prior Security Council
dangerous. resolutions by the use of force
o The use of indirect force is prohibited by the
relevant legal instruments, and that the common The Relationship of Military Sanctions under
good is best served by terming the indirect use Article 42 of the Charter to Self-Defense under
of force unlawful, regardless of the objectives in Article 51
a particular case 2 circumstances in which the use of force is
envisaged in Chapter VII
o Use of force through the Security Council under
HIGGINS, CHAPTER 15: Article 42
THE USE OF FORCE BY THE UNITED NATIONS o Use of force not by the Security Council, but by
individual members or members acting
collectively
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Action under Article 42 will only take place when Left open: whether enforcement action under
measures provided in article 41 are proven to be Article 42 could, as a matter of Charter law, occur in
inadequate. Article 42 actions would require a the absence of agreements under Article 43
further resolution of the Security Council, and, as o Applicable case: ICJ advisory opinion in 1962 to
such, would be subject to the veto of any Permanent address certain legal problems concerning the
Member financing of UN peace-keeping
As regards Article 51, action in self-defense could be o On the question on whether peace-keeping
taken without prior authorization of the Security action was permissible in the absence of Article
Council, thus avoiding a possible veto. 43 agreements, the Court answered in the
Action under Article 41 would bind the UN affirmative. It cannot be said that the Charter
membership as a whole but it would be subject to has left the Security Council impotent in the face
the veto of an emergency situation when agreements
Action 51 provides that self-defense may be relied under Article 43 have not been concluded. It
on until the Security Council has taken measures must lie within the power of the Security Council
necessary to maintain international peace and to police a situation even though it does not
security. resort to enforcement action against a State.
We could say that Article 51 does not speak of Higgins is of the opinion that it would remain a
measures effective to restore international peace, matter of political judgment for the Security Council
but of measures necessary to do so. In this light, to decide if it was preferable to provide for peace-
economic sanctions may find justification as they are keeping or for military enforcement under Article 42.
clearly necessary. In the absence of Article 42 agreements, no UN
o However, the intention was that, members member can be compelled to provide military forces
should be free to act in collective self-defense or assistance; but action under Article 42, by those
until the Security Council was in a position to who are willing to participate, can properly be
take over the task and secure the common authorized by the UN and carried out under UN
objective. Nonetheless, such idea is faced with command. It is also possible for such action to be
difficulties: authorized by the Security Council as an
It may be argued that if economic sanctions enforcement action under Article 42, even if it was
have been ordered, but not yet military to be carried out by UN members not under a
sanctions, and an armed attack has not yet unified UN command.
been repelled, that not all action necessary
has yet been taken and Article 51 remains
available. “THE SECURITY COUNCIL UNDER CHAPTER VII
States may act both as Security Council OF THE UN CHARTER: PROBLEMS UNDER THE
members and as members who respond to RULE OF LAW”
a request for collective self-defense. by H. Harry Roque
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agreement/s, armed forces, assistance and o The ICJ upheld the assessments on the ground
facilities necessary for the purpose of that the Security Council had only primary and
maintaining international peace and security. not exclusive responsibility for the maintenance
Article 47 of international peace and security
o the maintenance of international peace shall be o Did not give actual ruling that the volunteer
under the command of the Military Staff forces were constitutional under the UN Charter
Committee consisting of the Chief of Staff of the o Emphasized that since the General Assembly is
permanent members of the Security Council or authorized under Article 14 to recommend
their representatives measures for the peaceful adjustment of any
o the Committee will be responsible for the situation that it deems likely to impair the
strategic direction of any armed forces placed at general welfare, it is also authorized to organize
the disposal of the Security Council peacekeeping operations at the request and
Article 27 (3) consent of the States concerned. Article 35 may
o Provides for the veto power of the permanent be the applicable provision in such cases.
member states of the Council o The only form of action within the jurisdiction of
o The exercise of collective security is made the Security Council were those which were
subject to the condition that such measure must indicated in the title of Chapter 7 itself – actions
bear the unanimous vote of all the permanent with respect to threats to peace, breaches of
members of the Council peace and acts of aggression
Peacekeeping forces is also distinct from Chapter 7 in
Implementation terms of who shall comprise the peace-keeping force
Chapter VII was implemented only once when the and of whose command the force shall be under
Security Council authorized the deployment of a UN The creation of peacekeeping forces is justified on the
military force in Korea ground that it was directed towards a charter-
Higgins: international law is not just a body of rules objective which is the attainment of peace
that governs relations between states, but a dynamic
process of identifying normative conduct by Sanctions
competent authorities when power and authority Issue: some Resolutions passed by the Security
coincide Council seem to violate the municipal law concept of
Formation by the UN General Assembly of peace- undue delegation of power
keeping forces, while analogous to the provisions of Nicaragua vs. US case
Chapter 7, were in fact different and distinct from it o Qualified that collective self-defense may not be
The United Nations Emergency Force (UNEF) invoked except if:
o Example of peacekeeping forces that were There exists a valid exercise of the right to
created in lieu of Chapter 7 self-defense; and
o Its presence was expressly requested by both If there is request from the alleged victim
the governments of Egypt and United Arab state
Republic. If there was not such request, the o In addition to the requirement that there by a
presence of the UNEF would constitute a breach request made by the alleged victim state, the
of the territorial sovereignty of at least two pre-requisites for an act of self-defense must
member nations first be shown to exist
o Had the same purpose as the collective security Conventional public international law requires an
measures provided for under Chapter VII actual armed attack as a pre-requisite for self-defense
o Difference from Chapter VII
It was not authorized by the Security Humanitarian Intervention
Council but by the General Assembly Issue: how does one determine if a prevailing
It was not participated in by the forces or situation warrants intervention on grounds of
members of the UN whose composition humanitarian reasons
needed to be provided for by a special The Security Council justified the use of enforcement
agreement measures under Chapter 7 as valid exercises of
It was not under the Council or the Military humanitarian intervention
Staff Committee. Instead, it was composed o Example: in the recent cases of Rhodesia,
of volunteers from the member nations of Somalia and Iraq
the UN o The use of gross human misery, be it man-made
Advisory Opinion regarding the expenses incurred as or otherwise, are threats to international peace
a result of the UN involvement in Congo and the o Legal basis: interventions of these nature so
UNEF in the Suez Canal authorized by the Security Council, does not
violate the UN Charter’s domestic jurisdiction
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clause because human rights, of which the right But, one cannot expect US to do nothing
to life is paramount, is an issue not confined to while its citizens are being held captive for
the domestic jurisdiction of any state ransom and possibly raped by bandits
o Applicable provision: Article 2 (7)
Issue: in cases where the unilateral use of force Prospects
without the authority of the Security Council The end of Cold War has ushered the beginnings of
o Applicable case: the NATO bombing of Kosovo increased cooperation at least among the permanent
which were justified on the basis that NATO members of the Security Council
countries could not stand idly as thousands of o Effect
human beings were being killed The enforcement measures against Iraq
o Brownlie & Henkin argue against the lawfulness The peacekeeping forces in East Timor
of humanitarian intervention because the past Creation of War Crimes tribunals in
has widely abused this right Yugoslavia and Rwanda
o Those who argue in favor of humanitarian The Security Council has committed its
intervention do so on the basis that norms are involvement on issues such as women and
instruments devised by human beings to AIDS
precipitate desired social consequences
Reisman: One should not seek a point for Conclusion
point conformity to a rule without constant Challenges on the enforcement of the measures
regard for the policy or principle that provided under Chapter 7
animated its presumption o Conflict between international practice and the
o Higgins literal provision of the Charter
in a decentralized legal order, facts must be o The effectiveness of non-military sanctions given
looked at legal views applied in context its history of being failures
Each claim of a valid exercise of o The validity of measures provided under Chapter
humanitarian intervention, be it made in 7 for humanitarian purposes
good faith, or otherwise, should require o Question of the unilateral use of force on the
individual and contextual analysis ground of humanitarian purposes
International law is capable of deciding on o Unless this dynamic process of International Law
the facts at disposal, which interventions is translated in terms of amendments in written
were bona fide, and which, were not for obligations, the definition of what the law is
reasons of humanitarian necessity would be obscured in a cobweb of uncertainty
o Murase and ambiguity
There are circumstances where the
unilateral use of force is not only permitted
but also perhaps required in order to
prevent the worse conceivable situation CASE CONERNING MILITARY AND
from taking place PARAMILITARY ACTIVITIES IN AND AGAINST
We should try to make every effort for NICARAGUA (NICARAGUA v. UNITED STATES)
accommodating the ethical consideration ICJ Reports 1986, p.14 (1986), supra.
for necessity and legitimacy, as well as the
normative elements reflecting the actual (This discussion deals with the aspect of self-defense as a
power relations, into the practice of justification of US use of force in Nicaragua)
international law
Despite the prohibition on the use of force in the United US argues that its use of force is justified
conduct of international relations under Article 2(4), States: as it was a collective self-defense in
countries continue to unilaterally use force either for behalf of El Salvador.
alleged humanitarian purposes, or in order to protect
their nationals
The US is in breach of, among others, its obligations
o Relation to current events: 2 Americans under customary international law not to use force
kidnapped by the Abu Sayaff
against another State.
o Effect: RP government allowed US forces in the
territory
General rule: use of force is prohibited
Two theoretical violations of such presence
Requirements to be exempted from the general
Of territorial sovereignty
rule (requirements for a valid use of force):
Of the proscription against the use of o Armed attack
force under Article 2(4) o Necessity
o Proportionality
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This request for an advisory opinion was made by the UN Doctrine: the elements of necessity & proportionality
General Assembly. It principally asked: “Is the threat or use should always be taken into consideration
of nuclear weapons in any circumstance permitted under
International Law?” The main substantive issues regarded
sources of international legal obligation and the CASE CONCERNING THE LEGALITY OF THE
interaction of various branches of international law, USE OF FORCE (YUGOSLAVIA v. UNITED
particularly the norms of international humanitarian STATES OF AMERICA), REQUEST FOR
law (jus in bello) and the rules governing the use of force PROVISIONAL MEASURES
(jus ad bellum). ICJ Reports 1996, p. 226 (1996)
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Yugoslavia applied for provisional measures to stop the US Milosevic engineers changes in the Serbian constitution
from using force against it. The US, along with other that vastly reduce the provincial autonomy of Kosovo.
NATO-member countries bombed various targets in Other measures put tens of thousands of Kosovar
Yugoslavia affecting both the military and the civilians. Albanians out of work and restrict the activities of their
Furthermore, there were destructions in properties, cultural organizations. As Western alarm over treatment of
including oil refineries and chemical plants resulting in the Albanians in Kosovo grew, the US envoy was sent to
serious environmental issues. Also, the use of weapons try to negotiate peace. President Clinton ordered him to
containing depleted uranium is having far-reaching leave, after President Milosevic refused to accept an
consequences for human life. autonomy plan for Kosovo's Albanians secured by NATO
troops. NATO Secretary-General Javier Solana ordered air
Yugoslavia: The acts of US are deliberately creating strikes after the failure of the diplomatic efforts.
conditions calculated at the physical
destruction of an ethnic group, in whole Lecture
or in part. And that the US is taking part Murase believes there are circumstances where the
in the training, arming, etc. of the Kosovo unilateral use of force is not only permitted but also
Liberation Army, in violation of its perhaps required in order to prevent the worst
obligation on non-intervention in the conceivable situations from taking place. Under such
internal affairs of another State. circumstances, international lawyers, cannot and should
Yugoslavia asks the court to grant them not merely say that the actions were illegal but were
provisional measures, particularly the necessary and legitimate. Murase believes that we should
cessation of US’ use of force. It made use try to make every effort for accommodating the ethical
of Art. IX of the Genocide Convention and considerations for necessity and legitimacy, as well as the
Art. 38 as the bases for the ICJ normative elements reflecting the actual power relations,
Jurisdiction in the case at bar into the province of international law
United 1. The ICJ has no jurisdiction pursuant to
States: the reservation made by the US to Art. IX Important points
2. Yugoslavia failed to provide sufficient
proof required by the Genocide The elements of opposability
Convention that the US has the intent to 1. Effectiveness
destroy the ethnic group. US claimed that Factor of power needed to guarantee realization
such intent cannot be inferred from the of a measure in question. If a measure is not
conduct of conventional military implemented effectively, it is simply non-
operations against another State. opposable.
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situation where large-scale human rights violations were The use of force must be necessary because the
being committed, and the UN Security Council measures threat is imminent and thus pursuing peaceful
had no effect. alternatives is not an option
The Caroline Test As Reisman observed, the rules of the game/war has
always been a regime of mutually assured destruction and
“…necessity of self-defense, instant, system of minimum world order. However, such regime
overwhelming, leaving no choice of means, and creates a context of intense suspicion and distrust.
no moment for deliberation. It will be for it to
show, also, that the local authorities of As a challenge to the prevailing rule is the Antiballistic
Canada,- even supposing the necessity of the missile (ABM) weapon. Reisman claimed that a
moment authorized them to enter the comprehensive and effective ABM system in one
territories of the United States at all,- did nothing superpower would have defeated the deterrence
unreasonable or excessive; since the act justified mechanism by tempting that state to strike first and then
by the necessity of self-defense, must be hunker down behind its shield, which would cause the
limited by that necessity, and kept clearly second striker’s nuclear missiles to bounce off harmlessly.
within it.” Consequently, ABM enhances the ability of the major
nuclear and other potentially targeted states to protect
1. Necessity themselves from limited nuclear attack by other states.
“Instant, overwhelming, leaving no choice of
means, and no moment for deliberation.” On the other hand, there is also the preemptive self-
defense as brought about by the proliferation of atomic,
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Reisman favors the ABM system as it is an entirely passive The International Court of Justice shall be the
self-defense to combat states likely to be targets of principal judicial organ of the United Nations. It
surprise ABC missile attacks. shall function in accordance with the annexed
Statute, which is based upon the Statute of the
On Regime Change Permanent Court of International Justice and
Reisman says that because the context has changed – forms an integral part of the present Charter.
wherein necessity, proportionality, and discrimination are
no longer the sole factors to be considered – the legal
arrangements to implement policies of international law UN Charter, Art. 93
must change as well.
All Members of the United Nations are ipso
facto parties to the Statute of the International
CASE CONCERNING OIL PLATFORMS (ISLAMIC Court of Justice.
REPUBLIC OF IRAN v. UNITED STATES OF
A state which is not a Member of the United
AMERICA)
ICJ Reports 1996, p. 803 (1996)
Nations may become a party to the Statute of the
International Court of Justice on conditions to be
determined in each case by the General Assembly
Great By destroying Iranian oil platforms, the US upon the recommendation of the Security Council.
Britain: breached its obligations under the Treaty of
Amity, Economic Relations and Consular
Rights regarding ‘freedom of commerce’ UN Charter, Art. 94
between the territories of the two States
United Iranian attacks on naval and commercial Each Member of the United Nations undertakes to
States: vessels in the Persian Gulf constituted a comply with the decision of the International Court
breach of the Treaty’s provisions on of Justice in any case to which it is a party.
‘freedom of commerce’ and ‘freedom of
navigation’. All the acts of the US are If any party to a case fails to perform the
reasonable and not excessive, since their obligations incumbent upon it under a judgment
acts are justified by the necessity of self- rendered by the Court, the other party may have
defense, must be limited by that necessity, recourse to the Security Council, which may, if it
and kept clearly within it deems necessary, make recommendations or
decide upon measures to be taken to give effect to
the judgment.
The US did not violate the Treaty.
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the Charter of the United Nations as the principal which the parties refer to it and all matters
judicial organ of the United Nations shall be specially provided for in the Charter of the
constituted and shall function in accordance with United Nations or in treaties and conventions in
the provisions of the present Statute. force.
2. The states parties to the present Statute may at
ICJ Statute, Art. 34 any time declare that they recognize as
compulsory ipso facto and without special
1. Only states may be parties in cases before the agreement, in relation to any other state
Court. accepting the same obligation, the jurisdiction
xxxx of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
ICJ Statute, Art. 35
c. the existence of any fact which, if
established, would constitute a breach of
1. The Court shall be open to the states parties to
an international obligation;
the present Statute.
d. The nature or extent of the reparation to
xxxx
be made for the breach of an
international obligation.
3. The declarations referred to above may be made
APPLICABLE LAW unconditionally or on condition of reciprocity on
the part of several or certain states, or for a
ICJ Statute, Art. 38, supra. certain time.
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the Court can deal with any question of international law. states (e.g. I accept, on condition States A and B accept
Article 38 of the ICJ Statute stipulates its function (to also to settle disputes with me), or for a certain time (e.g. I
decide in accordance with international law such disputes accept, for the next five years). The Optional Clause has
as are submitted to it) and what it will apply to fulfil it also been treated as a treaty engagement, which led to the
(sources of international law). There is thus an enormous possibility of reservations as a matter of general treaty law.
potential for the use of the Court as to parties and subject- In Nicaragua vs. US the Court said that if it were
matter. acceptance under the Optional Clause were considered
treaties, a declaration of acceptance could not be
Actual Use of the Court withdrawn without reasonable notice of termination.
Article 36 (1) provides that the jurisdiction of the ICJ
comprises cases which the parties refer to it and all Reservations are permitted. In the Rights of Passage Case,
matters specially provided for in the UN Charter or in the Portuguese reserved the possibility of terminating
treaties or conventions in force. Parties can bring before acceptance immediately on notification. Normally, a
the Court a case ad hoc and on the basis of agreement (e.g. reservation to a treaty can only be made upon ratification
ELSI Case). Since 1983 it has been increasingly used in of or accession to a treaty. But some states, such as Malta,
several cases (Gulf of Maine, Libya vs. Malta, Denmark v. have made a reservation which purports to allow them to
Norway, etc.). make further reservations. The legality of this has yet to be
tested.
Article 36 (1) also provides treaties as basis of jurisdiction.
Any treaty, bilateral or multilateral, can include a clause Three types of reservations are usually acceptable:
which stipulates that disputes that arise about the 1. relating to other parties / ratione personae (e.g.
interpretation and application of the treaty are to be I accept the Court's jurisdiction, but I will not
referred for judicial resolution. One example is the Vienna agree to litigation of disputes with States Y and Z)
Convention on Diplomatic Relations. The tendency to 2. relating to time / ratione temporis; (e.g. I accept
include jurisdiction clauses in either multilateral or in 1990 the jurisdiction of the Court except those
bilateral treaties is markedly declining. This may partly concerning 1985 events) and
reflect a growing variety of alternative dispute-settlement 3. As to subject-matter / ratione materiae (e.g. I
procedures. accept the Court's jurisdiction, but not for the
settlement of aviation disputes) –> of doubtful
Article 36 (2) provides for the 'Optional Clause' jurisdiction, legal status, because the Court must determine
stipulating that a state party to the Statute may at any its own jurisdiction.
time declare that it recognizes as compulsory ipso facto
and without special agreement, in relation to any other The jurisdiction of the Court exists only in respect of what
state accepting the same obligation, the jurisdiction of the is common between the two states, taking into account
Court in legal dispute. This is like signing a blank cheque. each state's reservations and conditions. Thus, the Court
The acceptance may be indefinite, or upon notification of spends a lot of time in determining its jurisdiction, as
termination, or for a fixed period of years. Although there controversies about it often arise in litigation. The
is a declining emphasis on the Optional Clause, the increased tendency to ad hoc reference to the Court will
participation of third-world countries is increasing. hopefully reduce the time spent by the Court on its own
jurisdiction.
The Subject-Matter of Litigation before the Court
The Court can deal with any legal dispute, but there is Legal Disputes
nothing in the Statute that requires the Court not to Article 36 (2) provides that the matter brought before it is
accept jurisdiction if the parties agreed to use alternative a 'legal dispute'. The Court has said that the only
dispute-resolution procedures. Although several countries, requirement is that there are issues that involve any of the
by their statements, have welcomed the jurisdiction of the matters listed in Article 36 (2). It also said that it is
ICJ on various legal issues, including those involving human irrelevant if the matters arose in a politically charged
rights, a problem arises because these countries are context. The South West Africa cases, where the Court said
parties to the International Covenant of Human Rights, that the issues brought were 'really' political and better
which treaty has its own quasi-judicial procedures for the determined by the Security Council, is out of line with this
settlement of legal disputes concerning human rights. consistent attitude of the Court.
There is also a suggestion that only a range of pre-
identified/defined categories of dispute should be issued The issue often arises as to whether or not there is a
by the Court. But these issues are at a standstill. 'dispute' between them (i.e. one exists starts litigation
under the Optional Clause, and the other insists there is no
The Question of Reservations 'dispute'), The ICJ has adhered to the definition first held in
Article 36 (3) states that declarations of acceptance under the Mavrommatis Case that 'A dispute is a disagreement
the Optional Clause may be made unconditionally or on on a point of law or fact, a conflict of legal view or
condition of reciprocity, on the part of several or certain interests between two persons'. The differing views of the
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parties regarding the existence of a dispute between them the stage of the merits. As to the last issue, the Court has
are not determinative, and it is for the Court to decide found an application at the jurisdictional stage 'premature'.
based on the facts of the case. In advisory jurisdiction, a
state may claim that the advice should not be given In several cases such as Certain Expenses of the UN and
because there actually exists a 'dispute', and that it is not the Western Sahara Case, the Court, despite the claims of
appropriate to give advice to a UN body that would entail a State-party that giving an advisory opinion would be
the determination of a dispute between states. In the UN equivalent to settling a dispute, gave an opinion
Headquarters Case, the Court held that neither the fact nonetheless. In the Western Sahara Case, the Court agreed
that different views existed within the US administration, that there was a legal dispute between Morocco and Spain
nor the fact that the PLO office, which was subject for at the time of the request for advisory opinion, but it still
closing based on a US law that was passed, had not proceeded with the opinion but allowed Morocco an ad
actually been closed down, meant that a dispute did not hoc judge on the Bench, as there was already a Spanish
exist between the UN and the US. judge. The Court also distinguished the Eastern Carelia
Case, noting that in that case one of the key states was
Some Issues Relating to Advisory Opinions neither a party to the Statute, nor a member of the League,
Article 65 of the Statute provides that the Court may give while in the case of Spain and Morocco they were both
an advisory opinion on any legal question at the request of members of the UN.
whatever body may be authorized by or in accordance
with the UN Charter to make such a request. There are no The issue of third-party rights has arisen not bilaterally but
adversarial proceedings and there will be no judgment in the context of the work of the requesting organ. The ICJ
binding on the parties, but only advice as to the state of has shown that it will rather robustly preserve its right to
the law. But Article 68 of the Statute provides that the provide advice to authorized requesting organs.
Court shall apply the same procedures as in contentious
cases 'to the extent to which it recognises them to be Dispute Settlement and Law Development
applicable'. State parties to the Statute get notified under The determination of specific disputes and the provision of
Article 66 of the request and can present their views even specific advice by the ICJ develop international law. It is
though they are not parties to the case. hard to point to a case where the Court has just applied
rules to facts. Although decisions of the Court are said to
The principle of audiatur et altera pars, which states that be a subsidiary source of international law (Article 38 (1) (c)
the Court will not determine in their absence the rights of of the Statute) and any judicial determination is only
third parties, applies to advisory opinions, and it underlies binding upon the parties before it (Article 59), in reality,
consent as basis for the Court's jurisdiction. This has been the judgments and opinions of the Court are treaty as
applied to contentious jurisdiction in the Monetary Gold authoritative pronouncements upon the current state of
Case and also applied in the Phosphates Case. The test international law.
used by the Court in that case is whether the legal
interests of the third party that was not before the Court Even advisory opinions have a role of great importance.
was 'the very subject matter of the decision'. Very often, the organ requesting an advisory opinion will
then pass a resolution 'appreciating' or 'accepting' that
In the Eastern Carelia Case, the Permanent Court declined opinion. This was done in the Reservations Case an in Legal
to give an advisory opinion because the issue is related the Expenses of the United Nations. It does not give rise to a
main point of a pending dispute between the two states, legal obligation, but it is a public affirmation of the advice's
such that answering the question means deciding the authoritative quality. Many resolutions of disputes have
dispute. As far as contentious litigation is concerned, been assisted by advisory opinions (e.g. Admissions Cases).
Article 62 of the Statute allows a state not party to a
litigation in the Court to intervene should it consider that Higgins opines that the Court, even though it is necessarily
'it has an interest of a legal nature which may be affected choosing, explaining, and refining rules, should still do so
by the decision in the case'. In cases under Article 63 in respect of the particular issue it is required to decide or
which entails the construction of a Convention to which upon which it is asked to advise.
other states are parties, these states are to be notified,
and have the right to intervene. However, the Court often
points to Article 59 whereby a judgment only binds the
CASES ON JURISDICTION
parties to a case to deny the applicant's legal interest
which could be affected by the case. Intervention under
Articles 62 to 63 presents new problems such as new
elements to the case, the issue about the right to
CASE CONERNING MILITARY AND
intervene when the state has no jurisdictional connection PARAMILITARY ACTIVITIES IN AND AGAINST
to the subject-matter or the other states, whether the NICARAGUA (NICARAGUA v. UNITED STATES)
ICJ Reports 1986, p.14 (1986), supra.
proper stage to intervene is at the jurisdictional stage or at
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(This discussion deals with the jurisdictional aspect of the the airplane. The US Grand Jury brought murder charges
case.) for murder against two Libyan nationals suspected of
having caused the bomb to be placed aboard the aircraft.
Nicaragua: The Court had jurisdiction over its US requested the extradition of the two alleged offender.
application because both Nicaragua and the
US had accepted the compulsory Libya: The Montreal Convention (on Hijacking),
jurisdiction of the Court under the Optional under which Libya has the right to
Clause. investigate the alleged offense and exercise
United Nicaragua's acceptance of the domestic jurisdiction, is applicable to this
States: compulsory jurisdiction of the PCIJ was dispute.
not in force in 1945, because it failed to United the Court lacks jurisdiction because:
ratify the Statute of the PCIJ, such that States: o Libya failed to show that
Art. 36 (5) of the ICJ Statute did not apply there exists a legal dispute
to it; between the Parties; and
Three days before the application had that
been filed, the US filed a notification, to Such dispute, if any,
take effect immediately, stating that the concerns the interpretation
compulsory jurisdiction shall not apply to or application of the
disputes with any Central American Montreal Convention.
State; and Even if a dispute existed, the UN Security
US made a reservation in its Optional Council (UN SC) Resolutions which
Clause whereby disputes arising under a required Libya to surrender the two
multilateral treaty, which could affect accused prevailed over the provisions of
third states which are parties to the the Montreal Convention.
treaty but are not participating in the
proceedings before the Court, were The ICJ held that it had jurisdiction.
excluded from the jurisdiction of the
Court. A dispute is defined as 'a disagreement on a point of law
or fact, a conflict of legal views or of interest between two
The ICJ held that it had jurisdiction. persons'. The parties in this case differed on the question
of whether the destruction of the aircraft was governed by
Nicaragua's ratification of the ICJ Statute gave its previous the Montreal Convention. The UN SC Resolutions were
declaration under the PCIJ Statute the binding force which adopted after Libya filed its application. In accordance to
it previously lacked. jurisprudence, “if the Court had jurisdiction on that date, it
continues to do so; the subsequent coming into existence
The US declaration could only be terminated upon of the above-mentioned resolutions cannot affect its
reasonable notice. Although a declaration under the jurisdiction once established.”
Optional Clause was a unilateral and voluntary act, once
made, it creates a legal obligation binding upon the State
which made it. It would be impossible for a ruling not to CASE CONCERNING ELETTRONICA SICULA
affect third parties such as El Salvador. Therefore, the S.P.A. (ELSI) (UNITED STATES OF AMERICA v.
reservation of the US prevented the Court from ITALY)
entertaining the claims based on violations of multilateral ICJ Reports 1989, p. 15 (1989)
treaties such as the UN Charter and the OAS Charter.
However, the effect of the reservation did not exclude the The US claimed in its diplomatic claim against Italy that the
application of principles of international customary law latter violated the provisions of the Friendship, Commerce
enshrined in treaty law provisions. and Navigation (FCN) Treaty between the two when Italian
authorities seized and requisitioned the assets of ELSI, an
American-owned corporation stationed in Palermo Italy,
CASE CONCERNING QUESTIONS OF which was under liquidation.
INTERPRETATION AND APPLICATION OF THE
1971 MONTREAL CONVENTION ARISING Italy: The ICJ has no jurisdiction because of the
FROM THE AERIAL INCIDENT AT LOCKERBIE failure of the US to exhaust local remedies.
(LIBYA v. UNITED STATES) The claims should have been brought
ICJ Reports 1998, p. 115 (1998) before Italian municipal courts.
United The FCN Treaty did not categorically refer
Pan Am flight 103, while flying over Lockerbie, Scotland, States: to the local remedies rule in cases of
was destroyed by an explosion due to a bomb placed inside diplomatic protection.
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THE MAVROMMATIS PALESTINE CONCESSIONS The Court held that the phrase “the international
PCIJ, Ser. A, No. 2, (1924), supra. obligations accepted by the Mandatory” includes the
obligations arising out of Protocol XII of the Lausanne
(For an exhaustive discussion on the merits, refer to p. 22) Treaty. This Protocol concerns concessionary contracts
duly entered into before Oct 29, 1914. Since the Jerusalem
Whether or not the Court has jurisdiction to entertain the Concessions were dated from before the Protocol, they fall
case in accordance with Art. 26 of the Mandate under Art. 2 of the Mandate. However, the Jaffa
Concessions, although dated January 17 and March 6,
YES TO THE JERUSALEM CONCESSIONS; NO TO THE JAFFA 1914, were not confirmed by the Imperial Firman.
CONCESSIONS Therefore, they do not fall under the Protocol. In sum, the
Court held that it had jurisdiction to entertain the claim
The Court first looked at the conditions laid down by Art. relating to Jerusalem only.
26 to determine whether it had jurisdiction or not. It found
that: 1) there was a dispute between the Mandatory
(Britain) and another Member of the League of Nations APPLICABILITY OF THE OBLIGATION TO
(Greece); 2) the dispute cannot be settled by negotiation; ARBITRATE UNDER SECTION 21 OF THE
and 3) the dispute related to the interpretation or the UNITED NATIONS HEADQUARTERS
application of the provisions of the Mandate. AGREEMENT OF 26 JUNE 1947
PCIJ, Ser. A, No. 2, (1924), supra.
The Court found that there was a dispute or a
disagreement on a point of law or fact, a conflict of legal The UN GA adopted a resolution on 2 March 1988 to
views or of interests between two persons. The dispute in request the Court for an advisory opinion. The question
this case was first between a private person and a State. was: “In the light of facts reflected in the reports of the
When the Greek government took up the case, the dispute Secretary-General, is the United States of America, as a
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party to the Agreement between the United Nations and fundamental principle of international law that
the United States of America regarding the Headquarters international law prevailed over domestic law, a principle
of the United Nations, under an obligation to enter into long endorsed by judicial decisions.
arbitration in accordance with section 21 of the
Agreement?”
CASES ON ADVISORY OPINIONS
In order to answer the question put to it, the Court first
considered whether there existed between the United
Nations and the United States a dispute as contemplated
by section 21 of the Headquarters Agreement, which
LEGALITY OF THE THREAT OR USE OF
provided: “(a) Any dispute between the United Nations NUCLEAR WEAPONS (ADVISORY OPINION)
ICJ Reports 1996, p. 226 (1996), supra.
and the United States concerning the interpretation or
application of this agreement or of any supplemental
agreement, which is not settled by negotiation or other (This section deals with the jurisdictional aspect of the case.
agreed mode of settlement, shall be referred for final For a discussion on the merits of the case, refer to p. 12)
decision to a tribunal of three arbitrators, one to be
named by the Secretary-General, one to be named by the Jurisdictional issue: Whether or not the Court had
Secretary of State of the United States, and the third to be jurisdiction to entertain this request for an advisory opinion
chosen by the two, or, if they should fail to agree upon a submitted by the WHO, a specialized agency.
third, then by the President of the International Court of
Justice.” If there was a dispute, the Court had to The WHO failed to satisfy the requisites for asking an
determine whether that dispute concerned the advisory opinion.
interpretation or application of the Headquarters
Agreement and had not been settled by negotiation or There are three conditions that must be satisfied for the
other agreed mode of settlement. Court to acquire jurisdiction to entertain a request for an
advisory opinion submitted by a specialized agency.
A dispute is disagreement on a point of law or a conflict of 1. First, the agency requesting the opinion must be
legal views or interests is a matter for objective duly authorized under the UN Charter to request
determination and cannot depend upon the mere opinions from the Court.
assertions or denials of parties. The Court found the 2. Second, the opinion requested must be on a
opposing attitudes of the UN and the USA showed the legal question.
existence of a dispute. 3. Third, the question must be one arising within
the scope of the activities of the requesting
The Court then considered whether the dispute was one agency.
"not settled by negotiation or other agreed mode of
settlement", in the terms of section 21 (a). The Court The first two conditions were met; however, the Court
found that, taking into account the United States' attitude, found that “although according to its Constitution the
the Secretary-General had in the circumstances exhausted World Health Organization (WHO) is authorized to deal
such possibilities of negotiation as were open to him, nor with the effects on health of the use of nuclear weapons,
had any "other agreed mode of settlement" been or of any other hazardous activity, and to take preventive
contemplated by the United Nations and the United States. measures aimed at protecting the health of populations in
In particular, the current proceedings before the United the event of such weapons being used or such activities
States courts could not constitute and "agreed method of engaged in, the question put to the Court in the present
settlement" within the meaning of section 21, considering case relates not to the effects of the use of nuclear
that their purpose was the enforcement of the Anti- weapons on health, but to the legality of the use of' such
Terrorism Act and not the Agreement. Furthermore, the weapons in view of their health and environmental effects.”
United Nations had never agreed to a settlement in the The Court pointed out that whatever these effects may be,
domestic courts. the competence of WHO to deal with them is not
dependent on the legality of the acts that caused them.
The Court held that the United States was bound to
respect the obligation to enter into arbitration. That The Court also held that the responsibilities of WHO are
conclusion would remain intact even if it were necessary necessarily restricted to the sphere of public “health” and
to interpret the settlement that the measures against the cannot encroach on the responsibilities of other parts of
Mission were taken "irrespective of any obligations" of the the UN system, and that there is no doubt that questions
United States under the Headquarters Agreement as concerning the use of force, the regulation of armaments
intended to refer not only to any substantive obligations and disarmament are within the competence of the UN
under sections 11-13 but also to the obligation to arbitrate and lie outside that of the specialize agencies like the WHO.
provided for in section 21. It was sufficient to recall the
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Therefore, the request for an advisory opinion submitted entitled to the gold in accordance with the Washington
by WHO thus does not relate to a question which arises Statement.
"within the scope of [the] activities" of that Organization.
Court has no jurisdiction to adjudicate the issue based on
Italy’s application.
CASE OF THE MONETARY GOLD REMOVED
FROM ROME IN 1943 (ITALY v. FRANCE, UNITED The Court held that Italy’s first submission (that the gold
KINGDOM OF GREAT BRITAIN AND must be delivered to her) required the determination of
NORTHERN IRELAND AND UNITED STATES OF whether Albania has committed any international wrong
AMERICA) against Italy and whether Albania is under an obligation to
ICJ Reports 1954, p. 19 (1954) pay compensation. Going into the merits of the case
without Albania’s consent would violate the well-
established principle of international law that the Court
France, UK, USA, Albania and other states signed the
could not exercise its jurisdiction over a State without the
Agreement on Reparation from Germany (14 January
latter’s consent. In the present case, Albania’s legal
1946), on the Establishment of an Inter-Allied Reparation
interests would not merely be affected but would form the
Agency and on the Restitution of Monetary Gold in Paris in
very subject matter of the decision. Hence, any decision of
1946. Italy adhered to its provisions by a Protocol in 1947.
the Court would not be binding upon any party (even upon
The Agreement provided that the monetary gold found in
States which submitted to its jurisdiction i.e., France, UK,
Germany should-be pooled for distribution among the
USA, Italy). Likewise, Italy’s second submission (that
countries which can establish that a definite amount of
priority should be given to her over the UK) cannot be
monetary gold belonging to them “was looted by Germany
resolved by the Court as it is predicated on the
or, at any time after 12th March, 1938, was wrongfully
determination that as between Albania and Italy, the gold
removed into German territory”. The implementation of
should go to Italy.
the Agreement was entrusted to France, UK, and the USA,
which formed a Tripartite Commission.
Albania and Italy claimed that the gold belonged to them CERTAIN EXPENSES OF THE UNITED NATIONS
thus the Tripartite Commission, by signing the Washington (ARTICLE 17, PARAGRAPH 2, OF THE CHARTER)
Statement in 1951, decided to submit to an arbitrator the (ADVISORY OPINION)
issue of whether the gold belonged to Albania or to Italy or ICJ Reports 1962, p. 151 (1962), supra.
to neither. The Arbitrator opined that the gold in question
belonged to Albania and the opinion was communicated to (This section deals with the jurisdictional aspect of the case.
the Commission and to Italy and Albania. However, For a discussion on the merits of the case, refer to p. 22)
Albania made no application. Therefore, Italy, within the
ninety-day period, made an Application to the ICJ Jurisdictional issue: Whether or not the Court had
instituting proceedings against France, UK and USA, jurisdiction to entertain this request for an advisory opinion.
submitting that: 1) the Governments of France, UK and
USA should deliver to Italy any share of monetary Gold The Court agreed to give an advisory opinion. It held that
that may be due to Albania in partial satisfaction for the its power to give advisory opinions is derived from Art. 65
damage caused to Italy by the Albanian Law of 1945; and 2) of the Statute. It is of a discretionary character. However,
it’s right to receive the gold must have priority over the the Court can only give an advisory opinion on a legal
claim of UK. question.
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“The Court may give an advisory opinion on any authorized to do so by Article 96, paragraph 1, of the
legal question at the request of whatever body Charter, which provides:
may be authorized by or in accordance with the “The General Assembly or the Security Council
Charter of the United Nations to make such a may request the International Court of Justice to
request.” give an advisory opinion on any legal question.”
The Court noted that the UN GA is suitably authorized by It observed that Article 10 of the Charter has conferred
Art. 96, Par. 1 of the Charter. The Court also found that the upon the General Assembly a competence relating to “any
two questions submitted are framed in terms of law and questions or any matters” within the scope of the Charter,
raise problems of international law. They are in principle and that Article 11, paragraph 2, has specifically provided
questions of a legal character, even if they also embody it with competence on “questions relating to the
questions of fact, and even if they do not call upon the maintenance of international peace and security brought
Court to pronounce on existing rights and obligations. The before it by any Member of the United Nations . . .” and to
Court is accordingly competent to entertain the request. make recommendations under certain conditions fixed by
those Articles.
On the objection of Spain that the question involved a
historical question, the Court found that there was nothing Israel contended that the GA acted ultra vires under the
in the UN Charter or the Statute to limit either the Charter because its request was not in accordance with
competence of the GA to request an advisory opinion, or Article 12, Paragraph 1. The Court first observed that a
the competence of the Court to give one, to legal request for an advisory opinion is not a “recommendation”
questions relating to existing rights or obligations. by the General Assembly “with regard to *a+ dispute or
situation”, within the meaning of Article 12, but considers
As to the objection of Spain that it had not given its it appropriate to examine the significance of that Article,
consent to the submission of the case, the Court said that having regard to the practice of the United Nations. It
Spain is a Member of the UN and has accepted the notes that, under Article 24 of the Charter, the Security
provisions of the Charter and the Statute by virtue of Council has “primary responsibility for the maintenance of
which it has, in general, given its consent to the exercise international peace and security” and that both the
by the Court of its advisory jurisdiction. The Court also Security Council and the General Assembly initially
deemed it fit to construe the principle of consent as interpreted and applied Article 12 to the effect that the
permissive rather than directive in that the Court still Assembly could not make a recommendation on a
recognized that the lack of consent might constitute a question concerning the maintenance of international
ground for declining to give the opinion requested if, in peace and security while the matter remained on the
the circumstances of a given case, considerations of Council’s agenda, but that this interpretation of Article 12
judicial propriety should oblige the Court to refuse an has evolved subsequently. The Court held that the GA did
opinion. In short, the consent of the State continues to be not exceed its competence by submitting the request.
relevant, not for the Court’s competence, but for the
appreciation of the propriety of giving an opinion. The Court also emphasized that, in the course of the
Emergency Special Session in which the resolution to make
the request was made, the General Assembly could adopt
LEGAL CONSEQUENCES OF THE any resolution falling within the subject-matter for which
CONSTRUCTION OF A WALL IN THE the Session had been convened, and otherwise within its
OCCUPIED PALESTINIAN TERRITORY powers, including a resolution seeking the Court’s opinion.
(ADVISORY OPINION) It was contended that the request for advisory opinion did
ICJ Reports 2004, p. 176 (2004), supra not raise a legal question within the meaning of Article 96,
Paragraph 1 of the Charter and Article 65, Paragraph 1 of
the Statute. The Court observed that this question is
(This section deals with the jurisdictional aspect of the case.
directed to the legal consequences arising from a given
For a discussion on the merits of the case, refer to p. 95)
factual situation considering the rules and principles of
international law, including the Geneva Convention
The Court has the competence to render an advisory
relative to the Protection of Civilian Persons in Time of
opinion in this case.
War of 12 August 1949 (hereinafter the “Fourth Geneva
The Court noted first that its competence in this regard is Convention”) and relevant Security Council and General
Assembly resolutions. The Court further pointed out that
based on Article 65, paragraph 1, of its Statute, according
lack of clarity in the drafting of a question does not
to which the Court “may give an advisory opinion on any
deprive the Court of jurisdiction. Rather, such uncertainty
legal question at the request of whatever body may be
will require clarification in interpretation, and such
authorized by or in accordance with the Charter of the
necessary clarifications of interpretation have frequently
United Nations to make such a request”, and secondly that
been given by the Court. Therefore, the Court would, as it
the General Assembly, which seeks the advisory opinion, is
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has done often in the past, “identify the existing principles matters falling essentially within domestic jurisdiction, and
and rules, interpret them and apply them . . ., thus offering unreviewable by the international community.
a reply to the question posed based on law” (Legality of
the Threat or Use of Nuclear Weapons, supra). Obligations are owed directly to individuals, because they
have human rights. Human Rights are rights held simply by
It was also contended that the abstract nature of the virtue of being a human person. They are part of the
question raised an issue of jurisdiction. The Court held that integrity and dignity of the human being. They cannot be
“to contend that it should not deal with a question given or withdrawn at will by any domestic legal system.
couched in abstract terms is ‘a mere affirmation devoid of Although they may most effectively be implemented by
any justification’ and that ‘the Court may give an advisory the domestic legal system, that system is not the source of
opinion on any legal question, abstract or otherwise’” the right. International human rights law is the source of
(Legality of the Threat or Use of Nuclear Weapons). the obligation, albeit reflected in the content of the
domestic law. It follows that the right will be the same in
The Court also rejected the argument that it had no all jurisdictions.
jurisdiction due to the political character of the question
involved. As is clear from its long-standing jurisprudence Argument: There can be no fully universal concept of
on this point, the Court considered that the fact that a human rights, taking into account the diverse cultures
legal question also has political aspects, “does not suffice and political systems of the world.
to deprive it of its character as a ‘legal question’ and to
‘deprive the Court of a competence expressly conferred on This is a point advanced by states and liberal scholars.
it by its Statute’, and the Court cannot refuse to admit the This is rarely advanced by the oppressed. The non-
legal character of a question which invites it to discharge universal, relativist view of human rights is in fact a
an essentially judicial task” (Legality of the Threat or Use very state-centered view and loses sight of the
of Nuclear Weapons). human aspect of human rights, which is not
dependent on how states may behave differently
from each other in politics, economic policy, and
culture. The universality of human spirit dictates that
The Individual individuals everywhere want the same essential
things. There is nothing in these that is dependent
International Law is a system that provides normative upon culture, religion, or stage of development. This
indications for states in their relations with each other. has been a debate over the political and cultural
Although there is no reason to exclude individuals from its relativism in human rights. The International
reach, the main participants are sovereign states. However, Covenant on Civil and Political Rights has now
how can it be guaranteed that the needs of individuals provided for an international monitoring mechanism,
who comprise the states are not ignored? The classical through the Committee on Human Rights.
international law has relatively little to offer in this regard.
The individual is left with no direct access to a forum, no Argument: It is to be expected that the manner of
legal right that he can call his own, no redress against his implementation would vary according to the particular
own state. (Higgins, Chapter 6) political system.
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whatever rights they contain and designate as human Rights, has stated that these are present rights, not long-
rights are thereby human rights, at least for the ratifying term aspirations. States are under immediate obligation to
parties. They may in time be reflected in customary do what they can to provide these rights.
international law, and thus become human rights more
generally. Others say that human rights are vehicle for Collective Rights
expressing the obligation and providing the detail about There is no reason why an entitlement held by a group
the way in which the human right is to be guaranteed. It is cannot be termed a human right. However, not all
an interaction of demands by various actors, and the state collective or third-generation rights are in fact rights. The
practice in relation thereto, which leads to the generation right of peoples to peace seems indeterminate. The
of norms and the expectation of compliance in relation to holders of the rights are identifiable, but it is not clear
them. upon whom the obligation lies and what duties are owed.
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The Committee has the right to call for further reports. The establishment of the International Tribunal falls
State parties attend an examination of their reports. The squarely within the powers of the Security Council under
examination proves to be a useful means of monitoring Chapter VII, Article 41 of the UN Charter. The International
compliance and encouraging progress. Committee Tribunal has been established in accordance with the rule
members will prove as to what is said in the reports, what of law. The fair trial guarantees in Article 14 of the
is missing, and what is known from other sources. At the International Covenant on Civil and Political Rights have
end of the examination, Committee members will offer been adopted almost verbatim in Article 21 of the Statute.
comments on how they find the state of human rights in Other fair trial guarantees appear in the Statute and the
the country concerned. Rules of Procedure and Evidence. The International
Tribunal has primacy over national courts. The
The Committee has also considerable jurisprudence under International Tribunal has subject-matter jurisdiction over
its case law. It has also recently introduced certain the current case.
procedures in order to better follow-up on compliance
with its case law.
DIZON v. COMMANDING GENERAL
81 Phil. 286 (1948)
B. International Criminal Law
An Agreement was concluded between the Philippines and
the US whereby the US was authorized to occupy and use
certain Philippine territory as military bases and to exercise
LEGALITY OF THE THREAT OR USE OF jurisdiction over certain offenses committed within and
NUCLEAR WEAPONS (ADVISORY OPINION) outside the bases. Dizon allegedly committed an offense at
ICJ Reports 1996, p.226 (1996), supra. the main storage area at one of the bases. He was
prosecuted in and convicted by a General Court Martial
(For an exhaustive discussion, refer to p. 12) appointed by the Commanding General of the Philippine
Ryukus Command of the U.S. Army, and accordingly
sentenced to confinement and hard labor for five years.
PROSECUTOR v. TADIĆ (IN THE APPEALS
CHAMBER) Dizon filed a petition for habeas corpus, contending that
ICTY Judgment of 15 July 1999 the General Court Martial had no jurisdiction over the
alleged offense, as it was committed not in a U.S. base, as
(*Note: this judgment was rendered four years after the defined by the Agreement. Alternatively, even if the
from the 1995 Prosecutor v. Tadid decision *supra., p. 17].) offense was committed in a base, the Agreement is
unconstitutional because it deprives the Philippine courts
Tadid was the first to be tried by the International Criminal of jurisdiction over all offenses exclusively vested in them
Tribunal for the Former Yugoslavia (ICTY). He was tried for by the Constitution.
war crimes and was accused of committing atrocities at
the Serb-run Omarska concentration camp in Bosnia- Art. XIII of the Agreement stipulates that the Philippines
Herzegovina in 1992. Trial Chamber II of the ICTY denied consents that the United States shall have the right to
Appellant's motion challenging its jurisdiction. Appellant exercise jurisdiction over any offense committed by any
had launched a three-pronged attack: (a) illegal person within any base except where the offender and
foundation of the International Tribunal; (b) wrongful offended parties are both Philippine citizens (not members
primacy of the International Tribunal over national courts; of the armed forces of the United States on active duty) or
and (c) lack of jurisdiction ratione materiae. the offense is against the security of the Philippines." The
case not falling under any of the two exceptions, the
The ICTY was duly constituted under Chapter VII of the offense falls under the jurisdiction of the U.S.
UN Charter.
Generally accepted principles of international law are
The important consideration in determining whether a adopted as part of Philippine law. A foreign army allowed
tribunal has been “established by law” is not whether it to march through a friendly country or to be stationed in it,
was pre-established or established for a specific purpose by permission of its government or sovereign, is exempt
or situation. What is important is that it be set up by a from the civil and criminal jurisdiction of the place.
competent organ in keeping with the relevant legal Likewise, if bases may be validly granted to the U.S. under
procedures, and should that it observes the requirements the Constitution, there is no plausible reason while the
of procedural fairness. The International Tribunal is lesser attribute of the jurisdiction cannot be waived.
empowered to pronounce upon the plea challenging the
legality of the establishment of the International Tribunal.
GUANTANAMO DETAINEES CASES
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The following cases revolve around the question of the The response of the Bush administration to this ruling
eligibility of detainees to avail themselves of US habeas was to pass the Detainee Treatment Act of 2005 – a
corpus statutes in their attempt of seeking a review of law divesting federal courts of jurisdiction to hear
their status as detainees. challenges by Guantanamo detainees based on their
treatment or living conditions, and eliminated federal
(These cases are chronologically arranged, and are meant courts’ jurisdiction to consider habeas corpus claims
to be understood as a line of decisions following a singular by aliens challenging their detention at Guantanamo.
sequence of events. These represent a tit-for-tat CLASS NOTES
interaction between the US Government and the US
Supreme Court with respect to the rights of detainees.)
HAMDI v. RUMSFELD
542 U.S. 507 (2004)
RASUL v. BUSH
542 U.S. 466 (2004) Petitioner Hamdi, an American citizen whom the
Government has classified as an “enemy combatant”, for
Four individuals, British and Australian nationals, were allegedly taking up arms with the Taliban during the
detained by the US military in Pakistan and Afghanistan as conflict, was captured in Afghanistan and was detained.
a result of the War on Terror. The detainees were taken to Hamdi filed for a writ of habeas corpus. He asserted that
Guantanamo Bay military base in Cuba. Their families sued he went to Afghanistan to do “relief work” less than two
the government in federal district court seeking a writ of months before September 11 and could not have received
habeas corpus that would invalidate their detention. They military training.
argued that the denial of the rights was tantamount to
violation of the Due Process Clause. The government In an opinion backed by a four-justice plurality and partly
argued that the federal courts lacked jurisdiction to hear joined by two additional justices, Justice O'Connor wrote
the matter because the prisoners were not American that although Congress authorized Hamdi's detention
citizens, and they were not being held in the United States, through its Authorization for use of Military Force (AUMF)
but in Cuba, where the U.S. did not maintain sovereignty. in response to the 9/11 attacks, Fifth Amendment due
process guarantees give a citizen held in the United States
The District Court has jurisdiction to hear petitioners’ as an enemy combatant the right to contest that detention
habeas challenges, which authorizes district courts, within before a neutral decision-maker.
their respective jurisdictions, to entertain habeas
applications by persons claiming to be held in custody in The plurality also rejected the government's argument
violation of the laws of the United States. Such jurisdiction that the separation-of-powers prevents the judiciary from
extends to aliens held in a territory over which the United hearing Hamdi's challenge.
States exercises plenary and exclusive jurisdiction, but not
“ultimate sovereignty.”
HAMDAN v. RUMSFELD
The presumption, that legislation is presumed not to have 548 U.S. 557 (2006)
extraterritorial application, is not applicable to habeas
statute with respect to persons detained within the US In this ruling, the Court interpreted the provisions of
territorial jurisdiction. By the express terms of its the Detainee Treatment Act of 2005 as being
agreements with Cuba, the United States exercises inapplicable to habeas cases pending at the time the
complete jurisdiction and control over the Guantanamo DTA was enacted.
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approach was evidenced by the text of a negotiated treaty rapidly becoming a permissive rule under customary
which was supported by a great majority of UN members international law and adopted in the 1958 Geneva
many of which are of industrialized governments. Still, the Convention on the Continental Shelf).
issues revolving the ‘common-heritage approach’ are still
far from being resolved. These key issues largely concern It is important to note that petroleum reserves beneath
questions of jurisdiction and law development. the continental shelf are different from those beneath a
desert in the interior of a state. While there is clear
Water as a Resource sovereignty over all of one’s land mass, the coastal state
International rivers carry water – the most important of all has sovereign jurisdiction over the continental shelf only
resources, providing the basis for life and sustenance, as for purposes of the exploration and exploitation of
well as sources of energy – through the territories of two resources. In short, it merely exercises functional
or more states. Essential as the aforementioned resource sovereignty as can be gleaned from the Continental Shelf
is, it has also been the topic of many controversies Conventions of 1958 and 1982. The legal implications of
especially relating to who exercises control over rivers that this distinction are as follows:
pass through several state jurisdictions. States have had to take care that any legislation
they pass which purports to have an application
While the issues surrounding control over international on the shelf (criminal legislation, civil legislation,
rivers have remained complicated, certain key principles and tax legislation) is limited to matters relating
have emerged: to the exploration and exploitation of shelf
A state does indeed have sovereignty over the resources.
water resource in its own territory – but within While on-shore mineral resources have been
the limits of what is permitted by international vested in the state (making it clear that it owns
law. them), there is no right of ownership in the
International law requires that, in the exercise of resources in situ in the continental shelf. The
sovereignty, regard must be had to legitimate state may grant licenses for the purpose of
interests of other users of the water, exploring and exploiting resources in the
Legitimate interest is defined as an equitable continental shelf, but it does not itself own the
share in the beneficial use of the resource. petroleum. Since the government that grants
In identifying ‘beneficial use’ reference may be the licenses do not have title to the petroleum, it
had on various international instruments which follows that the license grantee also does not
will lead to the following questions that must be have title. It gets, instead, an entitlement to
answered: explore and exploit (which action would
o What is the purpose of the use? Is it to otherwise be illegal) and to reduce into
provide drinking water; or irrigation; or possession. It is the actual reduction to
an energy source; or is it recreational? possession that gives the licensee title.
o Is the particular use to be provided for
in a wasteful or conserving way? Has There are also problems that have emerged in relation to
there been past waste of this precious state intervention. From the perspective of the foreign
resource? investor, it can be summarized as follows:
o Are there alternative water resources How can he be sure that, given the vast
elsewhere in the country, or is said investment he will be required to make, he will
country solely or primarily dependent be allowed to reap the benefits of his investment
on the proposed use of the particular and work effort, and that the rewards will not be
stretch of the international river. taken from his just as his fulfillment of the
Accordingly, the answers to all the aforementioned contract terms begins to bear fruit?
questions will have to be compared, in a given case, with From the perspective of the host government, the
the same questions asked of a competing user of the problem can be summarized as follows:
resource. How can any arrangement entered into with a
foreign oil company in respect of what is, all said
Petroleum Deposits and done, one’s own natural resource, remain
The context of international law in relation to petroleum is flexible enough so that one is not locked into
also different. Although there may well be petroleum terms that over a long period turn out to bear
deposits beneath the deep sea-bed, it has so far proved little relationship to changing market conditions?
neither necessary nor attractive to seek to recover these. How can one ensure that, notwithstanding
Virtually all known commercial petroleum deposits are contractual arrangements with the foreign
either on-shore or under territorial waters (and clearly investor, concerns for health, safety, regulatory
within state territory), or in the continental shelf (asserted standards, etc. of the government are met?
jurisdiction for the purpose of resources exploitation is
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However, the author once again points out that there is no may be guided by the following principles which, to date,
easy way to resolve these questions. As a preliminary may be said to govern foreign investment law:
matter, it is important first to determine WON
international law or national law will be applicable in 1. The norm remains to be the harmonization of all
answering these questions. A survey of various arbitral sources of legal obligations. One party to an investment
cases while varied in results, provide the following views: contract cannot therefore renege on the duties it
whether there is only a domestic-law-proper law clause; or voluntarily assumed on the pretext of complying with a
whether there is a ‘mixed’ international law and domestic duty or exercising a right if the source of such duty or right
law clause, international arbitrators are very likely to find comes into conflict with the obligations laid down in the
international law relevant. investment contract and/ or customary law. The home
state is therefore not allowed to unilaterally revoke
If international law will be applied, several considerations investment agreements on the basis of its absolute
should be emphasized: first, states have a very special sovereignty over its natural resources, because such
position in regard to their own resources; second, exercise of sovereignty must as much as possible be
nationalizations (of exploitation and exploration etc.) do consonant with the duty to comply with obligations validly
require compensation, and will only be lawful if they are entered into.
not discriminatory and serve a public purpose; and third,
the concept of permanent sovereignty over natural 2. If harmonization is not possible, the norm remains to be
resources does not leave a state free to ignore contracts it the expropriability of every property. Although investment
has voluntarily entered into. contracts must be complied with in good faith, all states
recognize the validity of the exercise of a home state of its
prerogative to expropriate. The home state can therefore
KARICHI REVIEWER (2010): take foreign property, and there are no established
BASIC FOREIGN INVESTMENTS LAW absolute exceptions to this rule (meaning there are no
cases wherein the home state can be said to be absolutely
barred or precluded from expropriating). The only
(Note: This section has been lifted in toto from the Karichi
difference lies in the legal consequence of every act of
Reviewer [2010] since the subject matter of this subsection
taking, which would depend on whether the taking was
was no longer discussed in class. – Ed.)
lawful or not, or whether the parties expressly provided in
Expropriation Law the investment contract for the processes to be complied
with during such expropriatory acts.
As one of the most dynamic fields of international
commercial law today, foreign investment law has
3. For every act of expropriation, the norm remains to be
undergone a rapid evolution in state practice within the
the compensability of every act of taking. If the home state
recent past. There are many centers of controversy within
takes, it is bound to pay. This is the prevailing rule in
the larger field of foreign investment law, but arguably the
current state practice and opinion juris. The home state
most contentious issue remains that of expropriation. The
may exercise its prerogative to expropriate, but it cannot
context of international expropriation rules is: the home
state (where the investment is located) expropriates the do so without compensating the investor state or at least
reinstating the status quo ante (meaning the
rights of ownership of the investor state (who introduced
considerations paid for and benefits received under the
the investment and to whom such investment belongs)
contract would be restored to the respective parties). The
who, as an alien, may rely on international law for the
duty to pay compensation may take various forms. It may
standard of treatment that should be accorded to it. We
be (1) a necessary legal consequence of the expropriatory
must remember that expropriation, although recognized
act, as provided expressly in the investment contract (2) a
as one of the inherent attributes of sovereignty, assumes
necessary legal consequence of the expropriatory act, in
an international and therefore more complex dimension
accordance with customary law (3) an alternative form of
when exercised against foreign property because (1) the
investor state, being a subject of a foreign state, cannot be extinguishment of a legal obligation (instead of performing
the obligations under the contract, the home state
deemed to have been completely subsumed under the
chooses to reinstate the status quo ante by giving back, as
authority and sovereignty of the home state by virtue
compensation, the consideration for the contract plus
merely of their contractual relations (2) the relationship of
home and investor states are clearly defined under an other incidental adjustments), or (4) in the form of
investment contract which, according to its verbiage, may punitive damages, where the taking was adjudged to be
unlawful, in which case the contract may be enforced or, if
or may not make reference to international law in cases of
performance is already impossible, the home state may be
conflict, in the former case the ideally absolute exercise of
required to pay compensation in an amount that would
the home state’s sovereignty becomes limited to a certain
approximate the value of the property taken and the
extent by the standards of international law. In navigating
damage caused by the unlawful taking. The fact that
through the turbulent waters of expropriation rules, one
compensation must be paid is generally accepted as a
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norm; the only point of contention is the QUANTUM of sovereignty of peoples and nations over their natural
such compensation. How much should be paid is often a wealth and resources in accordance with the Charter
subject of debate and there is as yet no fixed rule in and the principles set forth in the present resolution.
determining the value of compensation that must be paid.
In practice, however, what the home state pays the
investor would usually be a matter of negotiation and ---United Nations Resolution on Permanent Sovereignty
conditioned upon the financial circumstances of the home over Natural Resources Adopted by the United Nations
state. There are some cases where the norm of General Assembly, 14 December 1962
compensability is believed to be inapplicable, although
such exemptions are found in the writings of publicists and ARTICLE 2, Par. 2, Subpar. C
no authoritative decision has yet been rendered To nationalize, expropriate or transfer ownership of
recognizing these exemptions as such. The examples are foreign property, in which case appropriate
the taxing power of the state, regulatory takings, and compensation should be paid by the State adopting
police powers. such measures, taking into account its relevant laws
and regulations and all circumstances that the State
4. In any case, the norm remains to be enforceability of considers pertinent. In any case where the question
every international legal obligation, regardless of the of compensation gives rise to a controversy, it shall
source. The investment contract may be primarily the law be settled under the domestic law of the nationalizing
between the parties. However, by virtue of the fact that State and by its tribunals, unless it is freely and
investment agreements are often concluded between mutually agreed by all States concerned that other
states or between private entities pursuant to a trade peaceful means be sought on the basis of the
agreement concluded by their respective states, sovereign equality of States and in accordance with
international legal obligations would inevitably come into the principle of free choice of means.
play. As such, from the time the investor state introduces
the foreign property into the home state’s territory, both ---Charter of Economic Rights and Duties of States GA Res.
would have to be guided by the obligations which both are 3281(xxix), UN GAOR, 29th Sess., Supp. No. 31 (1974) 50
bound to under international law. As a consequence, the
home state cannot be permitted to undertake an As Harris notes, the Charter has not attained the status of
expropriation in such manner as to be violative of other custom because developed states have effectively
international legal obligations like (1) the duty to observe mounted a resistance to the clause which does not require
pacta sunt servanda under customary law (2) the duty to a public purpose precondition to expropriation. The same
accord foreign investors with the international minimum is true with the Declaration on the Establishment of the
standard of treatment under customary law(3) the duty to New International Economic Order, another UN GA
expropriate for a public purpose, on a non-discriminatory Resolution backed by developing countries, which was
basis, and with4payment of just compensation under overridden, according to Walde, by the historical
customary law, or (4) the duty to observe elementary rules inclination towards market liberalism. The formula of
of contractual relations as embodied in general principles developing states, according to him, was simply
of law relating to contracts. incompatible with the tendency towards promotion of
foreign investment, the latter requiring adequate and
In dealing with the issue of expropriation, one must be stable protections as an inducement to risk-averse foreign
guided by basic UN texts touching on expropriation: investors. The following survey of case law on
expropriation represents the views taken by international
ARTICLE 4 tribunals in interpreting the different operative terms of
Nationalization, expropriation or requisitioning shall the aforequoted texts.
be based on grounds or reasons of public utility, ---
security or the national interest which are recognized
as overriding purely individual or private interests,
both domestic and foreign. In such cases the owner TEXACO v. LIBYA
shall be paid appropriate compensation, in 53 ILR 389 (1978), supra.
accordance with the rules in force in the State taking
such measures in the exercise of its sovereignty and In 1973 and 1974, the Libyan government pursuant to
in accordance with international law. several legislations decided to nationalize the properties of
two American companies which were granted concession
ARTICLE 8 contracts to exploit and extract oil. As a result, the
Foreign investment agreements freely entered into by properties, rights, and assets of the oil companies were
or between sovereign States shall be observed in appropriated by the Libyan Government and were to be
good faith; States and international organizations transferred to the Libyan National Oil Company. The two
shall strictly and conscientiously respect the oil companies, Topco and Calasiatic, wanted to submit the
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matter to international arbitration which the Libyan which is international in character and burdened with
Government opposed. However, the ICJ, upon the request stabilization clauses, such state is deemed to have waived
of the oil companies, appointed a sole arbitrator to resolve its prerogative to expropriate contrary to the terms of
the matter. The contention centers on the following such contract. In this case, since the expropriation was
clauses in the concession contracts: deemed to have been contrary to the stabilization clause
(1) STABILIZATION CLAUSE – provides that the of an internationalized contract, it was set aside and the
contractual rights expressly created by the concession oil companies were awarded a remedy of restituto in
shall not be altered except by mutual consent of the interregnum (restoration to the original state) which called
parties, and for a performance of the terms of the deeds of concession
(2 GOVERNING LAW CLAUSE - provides that the (to allow the oil companies to extract oil, etc.).
concession shall be governed and interpreted in
accordance with the principles of the law of Libya
common to the principles of international law, and in BRITISH PETROLEUM v. LIBYA
the absence of such common principles, then by and 53 ILR 297 (1978), supra.
in accordance with the general principles of law
including those which have been applied by British Petroleum Exploration had a contract with the
international tribunals. Libyan Government to extract, process and export oil in an
area called Concession 65 in the heart of the Sarir desert.
In sum, the appointed sole arbitrator Dupuy had to However, in 1971, Libya passed the BP Nationalization Law
determine whether Libya failed to perform its obligations which restored ownership of all properties, rights, assets
under the concession contracts entered into with the oil and shares to the state and transferred them to the
companies by pursuing its nationalization measures and Arabian Gulf Exploration Company. Accordingly, the
which law to apply in determining the various rights and nationalization was undertaken by Libya as a reaction to
obligations of the parties. the British Government’s failure to react to Iran’s
occupation of three islands in the Gulf which were under
Libya failed to perform its obligations under the Deeds of British protection. The Libyan government apparently
Concession by adopting nationalization measures. blamed Britain for the loss of the islands.
The arbitrator first determined that the standards of Under the nationalization law passed by Libya, the State
international law applied in this case. He found that that should pay compensation to BP Exploration which was to
the very fact that there was to be international arbitration be determined by a committee established by the Minister
‘internationalized’ the contract, making it inevitable that of Petroleum. However, due to delays in the determination
international law would have a role to play. This also of the matter of compensation, the nationalization law
meant that the case would be taken out of the ambit of already took effect without the issue being resolved. As a
domestic law. Dupuy reasoned that this had to be the result, BP Exploration’s were brought to a complete halt
case because a foreign investor would be nervous to put and their staff were immediately excluded from the
himself solely at the mercy of a domestic law, which premises as Arabian Gulf Exploration Company took over
definitionally a government would be able to change; and Concession 65.
that sole reliance on domestic law was avoided by
ensuring that the case went to international arbitration. Similar to the Texaco case, the concession contract in this
Internationalization of contracts therefore results in the case also contained a governing law clause which says that
protection of investors against the risks of contractual Libyan law would be applicable only to the extent that it
modification or abrogation resulting from changes in coincides with international law.
municipal laws or governmental measures.
The arbitrator in this case had to determine:
Dupuy then ruled that by unilaterally nationalizing the 1. WON the injured party to a concession
assets of the oil companies, Libya has breached its agreement has the right to deem the contract as
obligations under the concession contracts which logically valid and enforceable even after the alleged
gave rise to a cause of action in favor of the oil companies. wrongful exploration, and
According to him, although the right of the State to 2. WON the injured party may claim reparations in
nationalize is recognized as an expression of the State’s the form of specific performance or restitutio in
sovereignty, the same is not an absolute recognition. interregnum.
There are limits to such sovereignty, such as when a
contract is internationalized which meant that the Libya breached its obligation to BP Exploration by
agreement will also carry international consequences. The expropriating the latter’s properties. However, BP
arbitrator found that there is no established state practice Exploration was entitled only to damages and to specific
of disregarding international commitments in favor of performance and restitutio in interregnum.
nationalization. Thus, if a state bound itself to a contract
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According to the arbitrator, as a general rule under interpretation of juridical acts is not made according to the
international law, the wrongful breach of contract would same methods as the interpretation of statutes, for it does
entitle the injured party to terminate the contract at its not aim merely at specifying the meaning of general and
option. This means that until and unless such injured abstract principles laid down by the legislator, but
party elects to do so, the contract should be deemed as ascertaining what was the common intention of the
valid and binding and it can compel the other party to parties at the time the agreement was signed. The
continue performing its obligations under it. However, tribunal rejected Saudi Arabia’s claim that ARAMCO’s right
this is not applicable, as in this case, where the other to transport only included that from the site of extraction
(expropriating party) is a sovereign state. Thus, the right to the refinery. According to it, the parties cannot have
to deem the contract as continuing to be binding and the intended such a limited meaning of the word ‘transport’.
consequent right to demand restitutio in interegnum is not One of the modalities of oil development consists in
available to BP exploration under international law. This sending crude oil abroad, to consuming countries, where it
recognizes the almost plenary power of the home state to is refined outside of Saudi Arabia; in such a case, the term
expropriate and that the home state cannot be precluded ‘transport’ necessarily implies sending oil abroad, wither
under international law to expropriate when it wishes to. by land or by sea. The terms in the agreement must be
Thus, the home state may expropriate when it desires to, understood in their plain, ordinary, and usual sense, which
and even if it does so in breach of contract, the home state is the sense accepted by the oil industry. The tribunal
cannot be compelled to reinstate the operability of the further explained that this right to transport extended to
contract (restitutio in interegnum), at most, it can only be maritime transportation.
compelled to pay damages. In the end, the arbitrator did
indeed order the Libyan government to pay damages. The arbitral tribunal also rejected Saudi Arabia’s
contention that for the sole reason that a State is a party
Note: The circumstances under which the expropriation to a contract with a private person, the rights of the latter
took place in this case constitute one of the first instances must be interpreted restrictively. The rights of the parties
where an arbitral court classified state actions as (1) in must be evaluated in a spirit of complete equality. This is
breach of obligations, (2) discriminatory, and (3) because the rights of one party are increased as a result of
confiscatory. This is because the expropriation was restrictive interpretation to the extent that the rights of
apparently motivated by extraneous political reasons and the other party are restricted. It is only when the exact
BP Exploration’s Concession 65 was singled out. The meaning of such a contract is impossible to determine that
wrongfulness of the expropriatory act is important to the interpretation most favorable to the freedom of the
establish because this would determine the quantum of State may be adopted. Restrictive interpretation may only
compensation that would be awarded to the injured party. be justified when the sovereign rights invoked by the State
concern interests of a general nature which cannot be
defended otherwise than by disregarding the doubtful
SAUDI ARABIA v. ARABIAN AMERICAN OIL clauses of a contract. In relation to the conflict of rights
COMPANY (ARAMCO) between ARAMCO and Mr. Onassis, the tribunal said that
27 ILR 117, supra. the principle of respect for acquired rights is one of the
fundamental principles both of public international law
This case involved the arbitration relating to the and of the municipal law of most civilized States. Valid
interpretation of a concession agreement made in 1933 contracts bind both parties and must be performed, for
between the Government of the State of Saudi Arabia and rights resulting from agreements concluded for due
the Arabian American Oil Company (ARAMCO). The consideration are absolutely secure; when one party has
controversy arose when the Government of Saudi Arabia granted certain rights to the other contracting party, it can
concluded another concession agreement with Mr. Onassis no longer dispose of the same rights, totally or partially, in
and his company Saudi Arabian Maritime Tankers Ltd. in favor of another party.
1954 wherein the aforementioned company was given a 30
year “right of priority” for the transport of Saudi oil. This
right came into conflict with the agreement with ARAMCO THE FACTORY AT CHORZOW (GERMANY v.
wherein it was also given the exclusive right to transport POLAND)
oil which it had extracted from its concession in Saudi 1928 PCIJ (ser. A) No. 17 (1928)
Arabia.
This was a suit for reparation against Poland by Germany
ARAMCO was justified in resisting any infringement of instituted before the PCIJ for Poland’s taking possession of
the rights granted to it under the concession as the a nitrate factory in Chorzow, Upper Silesia which resulted
agreement revealed its exclusive right to transport oil. in damage to two German-controlled companies. The
taking was done in violation of Article 6 of the Geneva
In interpreting the concession agreement, the arbitrator Convention which was a convention entered into by the
did not rely on Saudi Arabian law alone. Accordingly, the two states. Germany brought action in behalf of the
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companies against Poland for the taking of the companies remedial award, as in the BP Exploration v. Libya
in violation of the Geneva Conventions. case. The continuing validity of this assertion is still a
matter of debate, and of course, although investor
Poland’s acts were made in violation of a treaty (Geneva states do settle in time to mere payment of
Convention between the parties) and were therefore compensation, it never hurts to have the Chorzow
wrongful under international law entitling Germany to Standard as the starting point of every negotiation as
compensation. far as the investor state is concerned.” (Karichi Notes,
2010)
In this case, it was held that the reparation of a wrong may CLASS NOTES
consist in an indemnity corresponding to damages which
the nationals of the injured state have suffered as a result
of the act which is contrary to international law (Germany LIAMCO v. LIBYAN ARAB REPUBLIC
in this case). Reparation is the indispensible complement 62 ILR 140
of a failure to apply a convention. Also, the taking of
property requires compensation. The ruling of the court in In 1973 and 1974, Libya nationalized both LIAMCO’s rights
this case also provided for the quantum of compensation under their concession agreements and the latter’s oil
required to be paid in cases of wrongful takings by the drilling equipment. Due to unsuccessful negotiations
home state, also known as the CHORZOW STANDARD in regarding compensation, LIAMCO rejected the terms of the
international law. The Chorzow Standard provides that nationalization and initiated proceedings under the
the essential principle contained in the actual notion of an arbitration clause. The sole arbitrator Mahmassani was
illegal act is that reparation must, as far as possible, wipe- appointed and he was tasked to determine whether Libya
out all the consequences of the illegal act and re-establish was in breach of its obligation by pursuing its
the situation which would, in all probability, have existed if nationalization program and consequently, damages etc.
that act had not been committed. were due to LIAMCO.
The principles which should serve to determine the Libya acted lawfully acted when it nationalized LIAMCO’s
amount of compensation due for an act contrary to concession rights before the expiration of the term.
international law are as follows: However, compensation must be duly paid to LIAMCO.
1. Restitution in kind, or if this is not possible,
payment of a sum corresponding to the value The arbitrator made it clear that the concessions were
which a restitution in kind would bear; both contractual obligations and incorporeal property. On
2. Award of damages for loss sustained which the one hand, sanctity of contract is an integral part both
would not be covered by restitution in kind or of international law and Islamic law. On the other hand,
payment in place of it. the dominant trend of international opinion allowed states
substantial rights over their natural resources.
General principle of law: reparation for the taking of
property requires compensation. Reparation is due Unlike in the cases above (Texaco v. Libya, etc.),
when there is a breach of obligation. Mahmassani took separately the remedies for premature
termination of contract and for the taking of property by
Where an expropriation is legal, the amount of the nationalization. In fully accepting that the nationalization
reparation is the logistical value of the property taken required compensation, he readily found that the damages
at the time of the expropriation. However, where should include, as a minimum, the damnum emergens,
there is an unlawful taking, the amount of reparation which he described as ‘the value of the nationalized
includes the intangible assets (loss of profits). (Karichi corporeal property including all assets, installations, and
Notes, citing Prof. Roque, 2010) various expenses incurred.
“The Chorzow Standard is often invoked by investor As to the more controversial question of whether the
states to justify their claims of compensation because compensation due should also include lucrum cessans or
it is sufficiently vague as to evade exact quantification the loss of profits, he felt that the answer would depend
but sufficiently liberal and inclined towards investors’ on whether the taking was lawful or not, and that lucrum
interests as to be adequately justificatory of claims of cessans might be payable if the nationalization was
full compensation (“full” meaning nearly everything - unlawful. However, since the evolution of international
the value of the property, forgone profits, future law meant that states had the sovereign right to
profits, incidental expenses, committed profits, and nationalize their natural resources, he concluded that it is
damages). However, the Chorzow Standard does lawful for Libya to nationalize concession rights before the
contemplate restitutio in interegnum as a remedy for expiry of the concession term, provided that the measure
unlawful expropriations, contrary to subsequent be not discriminatory nor in breach of treaty, and provided
arbitral decisions precluding the propriety of any such that compensation be duly paid.
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Kuwait’s expropriation was not unlawful. However, distinguished 2 periods: the PROSPECTING PERIOD
Aminoil must be compensated by Kuwait. wherein Sapphire would act through IRCAN in which case
it would be reimbursed for its expenses and the WORKING,
Unlike arbitrator Dupuy’s ruling in the Texaco v. Libya case, EXTRACTION and SALE OF THE OIL period wherein IRCAN
the arbitral court here expressly reiterated that there is no would act for both parties.
rule in international law that absolutely precludes a home
state from expropriating. The only limitations (and not After the first period, NIOC refused to reimburse Sapphire
absolute exceptions) to this rule are three-fold: and as a consequence, the latter refused to proceed to the
a. It is for a serious undertaking; second period of the contract. Sapphire wrote the Shah of
b. It is expressly stipulated for; Iran requesting for a refund of their losses however the
c. It covers a limited period. Prime Minister of Iran replied that the former had not
In short, a home state may validly waive its expropriatory fulfilled its obligation under the contract and as a result,
prerogative only for a limited period of time such that it NIOC was entitled to refuse the refund.
cannot be perpetual, only upon serious undertakings
(other investments of a smaller scale may be expropriated Sapphire initiated arbitration proceedings requesting the
more expeditiously), and in any case such limitations must following as damages:
be embodied in a contract. The expropriatory power of 1. Compensation for expenses incurred before the
the state is the general rule, and therefore any limitations contract plus interest;
to its exercise cannot be implied. 2. Compensation for expenses incurred after the
contract plus interest;
In considering legal consequences of an expropriatory act, 3. Loss of profit;
consideration must be given to whether the investor has 4. Refund of the $350,000 indemnity.
been adequately protected by express provisions of the
contract relating to compensation. The compensability of Federal Judge Pierre Cavin of Lausanne was appointed as
an expropriatory act strongly militates against the sole arbitrator.
presumption that the home state can take property
without necessary legal consequences in the exercise of its NIOC breached its obligations under its contract with
sovereignty. In interpreting Articles 17 and 11 (B) of the Sapphire entitling the latter to damages.
contract, the tribunal said that these do not absolutely
forbid nationalization because it impliedly requires that The arbitrator first determined that general principles of
nationalization shall not have a confiscatory character. law were applicable in this case. The choice of applicable
law was not explicit in the contract, but the characteristics
The arbitral tribunal also credited the fact that the act of of the contract were such that they excluded the
Kuwait was in pursuance of a legitimate state policy. It application of the traditional rules of private international
considered the undertaking (the extraction of oil) of law and reduced the likelihood that Iranian law would be
Kuwait directed to narrow patrimonial ends in the applied to the interpretation and performance of the
beginning as it was a financial venture entered into by the contract. Also, the contract contained an arbitral clause
government for its purposes. However later, it became an which entrusted the task of arbitrating any possible
essential instrument in the economic and social progress dispute to an arbitrator chosen by the President of the
of the state as evidenced by the progressive development Supreme Court of Switzerland, Denmark, Sweden or Brazil
of Kuwaiti law with a view of taking an active role in the from which it could be drawn specifically that the clause
development of its own resources within its territory. rejected the exclusive application of Iranian law.
As such, the expropriation was deemed not unlawful and According to the arbitrator, it was NIOC and not Sapphire
the tribunal merely awarded Aminoil compensation. who failed to fulfil its obligations when it refused to
reimburse the latter. The arbitrator also observed that
there was a general rule of private law that the failure of
SAPPHIRE INTERNATIONAL PETROLEUMS LTD. one party to a synallagmatic contract to perform its
v. NATIONAL IRANIAN OIL CO. obligations releases the other party from its obligations
35 ILR 136 (1967). and gives rise to a right to pecuniary compensation in the
form of damages. This rule could not be set aside even in
The National Iranian Oil Company (NIOC) and Sapphire the case where the contract contained elements which
Petroleums Ltd (Canadian Company), entered into a had their origin in administrative law (public law).
contract to expand the production and exportation of Accordingly, the deliberate failure of NIOC to carry out its
Iranian oil. The parties set up the Iranian Canada Oil obligations in breach of contract, and having particular
Company (IRCAN), a “joint stock company and non-profit regard to the circumstances in which the refusal was made,
corporation”, to carry out the operations under the justified Sapphire’s non-performance of the contract.
contract on behalf of the two parties. Their contract
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manner and within such time as to satisfy the investor. case that in a lawful expropriation only ‘the just price
According to the ruling in this case, what would make an of what was expropriated’, representing the ‘value at
act of taking unlawful under international law would be the moment of dispossession’ should be paid. Thus
the absence of any provision for compensation. there would be damnum emergens (actual loss) but
no lucrum cessans (loss of profits).
This case is also instructive in relation to the issue of
discriminatory takings. In comparison to the BP Note however that Higgins herself does not agree
Exploration v. Libya case, there it was held that there was with Professor Virally’s view. According to her, a
discriminatory expropriation because it was undertaken by state may still engage in what it sees as actions in the
Libya only against BP Exploration and not against other public good that violate contracts; but there is no
similar ventures of other nationalities. However, in this reason why the foreign investor should underwrite
case of Amoco, the tribunal held that an expropriation is this exercise in state sovereignty.
not per se unlawful just because it is directed only against CLASS NOTES
a particular entity within a larger industry. According to
the arbitration tribunal, the act of expropriation is the
prerogative of the home state and may be undertaken in PHILLIPS PETROLEUM COMPANY IRAN v.
such manner as to be determined by the home state in ISLAMIC REPUBLIC OF IRAN
pursuance of its policies. The non-expropriation of an 21 Iran-US Claims Report
entire branch of economic activity is not in itself
discrimination, absent any evidence of patent bad faith or Phillips entered into a Joint Structure Agreement with Iran
discriminatory designs. It explained that reasons specific to exploit oil. In 1978, Imam Khomeini sparked a revolution,
to the non-expropriated enterprise, or to the expropriated which succeeded in toppling the former regime. The
one, or to both, may justify such a difference of treatment. revolutionary government decided to withdraw all oil
Furthermore, a coherent policy of nationalization could contracts with foreign companies under the guise of
anyway be reasonably operated gradually in successive nationalization. The foreign companies asked for just
stages. compensation, citing the deprivation of their contractual
rights. Iran countered this by invoking the defense of force
The tribunal also held in this case that stabilization clauses majeure and that the workers’ refusal to work for
must be clear in demanding from the home state foreigners.
obligations which the investor state can enforce against it.
Absent such unequivocal stipulation in the contract, the The court held that due to the lack of proof that workers
home state cannot be deemed to have been a party to the refused to follow the orders of Iranian authorities (which
contract and cannot therefore be held liable under its refusal forms the basis of Iran’s defense of force majeure),
terms. In this case, no clear obligation was imposed by the the foreign companies’ rights were not obliterated by
concession contract on the Iranian government. There force majeure. As regards expropriation, the court held
was no showing that the contract contained a that an expropriation does not need to be in a specific
“stabilization clause” that would have obligated Iran to form (by a law or de facto). It must be noted that the
insulate the contract from any change in domestic law that control over property by a government does not
would affect the contract’s operation. As such, the Iranian automatically justify a conclusion that the property has
government cannot be said to have expropriated Amoco’s been taken by the government. However, such a
property in breach of its obligations because no obligation conclusion of a take-over by the government is warranted
exists on its part. The tribunal concluded that Iran’s when events demonstrate that the owner was deprived of
expropriation was a lawful on under international law fundamental rights of ownership and that the deprivation
which meant that only compensation and not damages is not merely ephemeral. According to the court, “the
would be the consequence of its actions. intent of the government is less important than the effects
of the measures on the owner, and the form of the
Professor Virally of the Anglo-Iranian Tribunal in this measures of control or interference is less important than
case took the analysis several stages further from the the reality of their impact.”
LIAMCO case. Whereas Mahmassani, like every
arbitrator before him, had emphasized the sanctity of Because the court recognized that the foreign companies
contracts and had accepted that a nationalization were deprived of their contractual rights, it ruled that Iran
required compensation from a prematurely ended must pay just compensation from the point of deprivation
contract, Professor Virally simply rejected that (i.e., the date when it was said/declared that there was no
sovereign states are bound by contracts with private reasonable prospect of a return and that the Joint
parties as, in his view, this would allow ‘private Structure Agreement must be regarded as terminated).
interests to prevail over duly established public Note that the point of deprivation or taking, when the
interest, making impossible actions required for the taking is through a chain of events, is “when the
public good. Professor virally also concluded in this interference has deprived the claimant of fundamental
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rights of ownership and such deprivation is not merely Legal and Social Property (Ackerman‟s
ephemeral or when it becomes an irreversible deprivation.” classification)
Regarding the compensation due, it must be in an - Social Property: A person’s right to control the
“effectively realizable form” which represents “the full use of his property is generally recognized in his
equivalent of the property taken.” The compensation may dealings with individuals
not be for less than the full value, despite Iran’s invocation
- Legal Property: An appeal to the opinion of a
of the dynamic nature of customary international law and legal specialist is necessary for a person to
recent trades, since the court ruled that this fact cannot
believe himself justified in claiming something as
prevail over specific terms of the treaty. (Remember, lex
his.
specialis).
On Assessing Compensation for Loss of Choses in
On Iran’s argument that, based on the Chorzow case, the Action
amount of the compensation must be mitigated since the There is a difficulty in classifying bundles of rights and
expropriation is lawful, the court said that the legality of assessing compensation for loss of choses in action, as
the taking is of no moment since the treaty in this case shown by the treatment of the legal nature of petroleum
does not distinguish between lawful and unlawful taking. concessions (as to whether they are property rights or
Chorzow does not provide any basis for the assertion that contractual rights). This classification affects the right of
a lawful taking requires less compensation than an the state to interfere with the said right. Some new
unlawful taking. property theorists, with an aim to broaden the matters
covered as property, argue that “property” should include
non-proprietary rights that fulfill the same economic and
“THE TAKING OF PROPERTY BY THE STATE: social functions as rights of property.
RECENT DEVELOPMENTS IN INTERNATIONAL
LAW” Entitlement to Property
by Rosalyn Higgins Katzarov describes two fundamental instincts in man – the
drive to appropriate and the instinct, which drives him to
Some important definitions: seek the company of his fellows. The two instincts have
Indirect takings – deprivation of property rights taken form in the social institutions of property and State.
through acts of the State other than outright
takings [Form: nationalization, expropriation, Social Function of Property
confiscation, requisition, or sequestration] Higgins mentioned the following with respect to the social
Property rights as human rights – jurisprudence function of property
in this area is not in line with international law - property is a particular freedom the owner is
on the taking of property enjoying in his activities, which ultimately
depends on the assistance that a claimant
The Concept of Property receives from the community
Property is defined by the municipal legal system. The - Property is subject to overriding powers of the
concept of property provides the owner with the state
protection of the law in certain key respects. In “The
Theory of Nationalization”, Katzarov identified the positive - International law affirms that property rights be
and negative aspect of property. exercised in a manner that is not dangerous and
does not harm others.
Positive: Right of disposal which is both
absolute and unlimited in point of time - Private property may be used by the state for
Negative: Exclusive; the holder of the property authorized punitive purposes. (notion accepted
has the power to prevent another person from both at municipal and international level)These
performing an act of disposal takings are for purposes of state authority widely
perceived as legitimate and do not enrich society
Property includes chattels and land, as well as contractual as a whole. It is required that the taking only be
rights (as a species of property), if the said rights can be for a public purpose, and with compensation.
transferred from one person to another. In English, they
are referred to as things, and in French, as “choses in On Public Use and Compensation Requirements
action”. Aside from these, property may also consist of Compensation measures must be interpreted to
abstract things such as debts, shares, patents and encourage the even distribution of benefits and burdens
copyrights. International law cases accept that property is over the long run.
both choses and choses of action; tangibles and
intangibles. Tolerated Takings
There exists a basic prohibition with respect to
interference by one state in the property of another.
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Relations between States and Private Parties in Compensation due to developing states was for
respect of Property Matters “exploitation and depletion of and damages to their
Whether or not a State is entitled to interfere with foreign natural resources and all other resources.” International
property rights by virtue of its territorial sovereignty legal standards are deemed irrelevant on the ground that
depends on the nature of the property and attendant they are preferential. It is said that if domestic law chooses
circumstances. not to compensate nationals for a taking of property, then
foreign investment shall also not be entitled to
Acquired rights compensation, a point to which Higgins does not agree. It
Acquired rights are protected by international law. was also said that not all takings of property are in the
Acquired rights include: form of nationalizations or expropriations.
a) those acquired under municipal and
international law,; Act of State doctrine
b) Historic rights or historic title; The courts of the forum may be party to a deprivation of
c) In the context of intertemporal law: property that may or may not have been lawful, but it is
International tribunals have sought to identify incorrect for an international tribunal to offer as a reason
whether at a critical time sovereignty has been for rejecting restitution the fact that nationalization is
acquired [a juridical fact must be appreciated in qualified as an Act of State immune from control.
light of contemporary law]; AND Deference given by some courts to nationalization of
d) In context of succession of States: successor foreign states does not equate to immunity of
States must respect rights acquired under its nationalization in general to judicial or other control at the
predecessor international level.
Permanent Sovereignty over Natural Resources Recent trends in the international law of
General Assembly Resolution 1803 (XVII): International law petroleum concession and licenses
and the national legislation in force shall govern capital A State may in principle take the property of a foreign
imported to exploit and develop natural resources, as well private person within its own jurisdiction, provided:
as the earnings on that capital. Profit-sharing shall be in - That it does so for a public purpose and in the
accordance with the agreement of the investors and the absence of discrimination
recipient state, and the state’s sovereignty over its natural - That compensation is paid
wealth and resources must not be impaired. Par. 4 of this Deeds of concession often have the appearance of a
resolution states, among others, that nationalization, contract, in which there is an agreed identification of
expropriation or requisitioning shall be based on grounds mutual benefits and obligations between the State and the
or reasons of public utility, security or the national interest, concession holder. Essential features of a concession are
both domestic and foreign. that
a) it is a state act, and
International law requires that taking be for a public b) It is a vesting of property rights in the
purpose – public utility or otherwise. concessionaire.
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found that the measures taken by a state with Higgins said it is difficult for an international tribunal to say
respect to the property of its own nationals are that a proposal is NOT in the public interest if a parliament
NOT subject to the general principles of elected by the people, operating within democratic
international law in the absence of a particular principles of accountability decides on the said proposal
treaty clause specifically so providing, and that after careful debate.
the records of the preparatory work as to the
drafting and adoption of Article 1 of the Protocol On the Control of the Use of Property
confirm that the contracting parties in the said The right of a State to enforce laws to control the use of
protocol had no intention of extending the property (as stated in par. 2 of Art. 1 of the Protocol) in
application of these principles to the case of accordance with the general interest is not impaired by
taking the property of nationals. the proscription of Art. 1 of the Protocol against
Higgins said that none of the subsequent case deprivation of possession of property. The difficulty as
law on Article 1 of the Protocol indicates a regards this matter of control is that it can at times be so
change of heart from the pronouncement substantial as to amount to a taking of property. As
quoted above. regards the requirement of par. 2 of Art. 1 of “general
In the Handyside case, it was held that Art. 1 of interest” as distinguished from the “public interest” in par.
the Protocol requires member States to respect 1, there is yet no authoritative pronouncement, but a
the property of every natural or legal person suggestion exists that public interest is contrasted with
within their jurisdiction, which includes nationals. private, personal interests while general interest, is
There is no statement of an express departure contrasted with sectional group interests. But based on
from the holding in Gudmundsson but an case-law, matters are still unclear as there is unexplained
affirmation that national and non-national alike cross-referring with respect to the 2 terms.
are entitled to protection from the arbitrary
confiscation of their property. Conclusion
Property rights as human rights are still in a very formative
stage. The European Convention is likely to provide the
- In the case of Sporrong, the Court, interpreting
major focus for developments. Questions of permanent
Art. 1 of the Protocol, held that interferences
sovereignty over natural resources, compensation, public
with property may occur that are neither
interest, concessions, regulatory controls, and human
deprivations nor control for a public purpose;
rights are all intertwined. If we isolate them, we exclude
the test to see whether such an interference
relevant factors from consideration.
violates the right to property is a determination
as to whether a fair balance was struck between
the demands of the general interest of the
community and the requirements of the “STATE RESPONSIBILITY FOR THE
protection of the individual’s fundamental rights NATIONALIZATION OF FOREIGN-OWNED
(Balancing Test) PROPERTY”
o According to Higgins, the effect of this by Eduardo Jimenez De Arechaga
is that the State is permitted to
interfere with property rights beyond Contemporary international law recognizes the right of
the limits expressed in Art. 1, every state to nationalize foreign-owned property as a
contingent upon a further balancing corollary of the permanent sovereignty which the state
test the content of which is uncertain. possesses even if a predecessor state or previous
government engaged itself by treaty or contract not to do
On the Public Purpose Requirement so.
A public purpose is an objective test. This requirement has - Sovereignty as permanent: state never loses its
been understood as a means of differentiating takings for legal capacity to change the status or method of
purely private gain on the part of the ruler from those for exploitation of those resources, despite any
reasons related to the economic preferences of the arrangements which may have been made.
country. With respect to international law, the controversy
as to the meaning or scope of takings for a public purpose Traditional international law view: nationalization as
is as to whether it includes retaliatory takings. According unlawful and as violative of acquired rights which are
to Higgins, in the case brought against the UK with respect internationally protected; in the event of such a
to its nationalization of the Iron and Steel Industry in 1967, nationalization, the state must make restitution or pay a
the pronouncement of the court was very close to saying sum of money with damages. The compensation must be
that what the democratically elected Parliament decides is just or adequate and prompt and effective.
needed is definitionally in the public interest.
On Unjust Enrichment
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What must be taken into account is the beneficial gain international law to solutions like the one
obtained by the nationalizing state and not the loss sponsored by the World Bank.
suffered by the owner of the expropriated property. There
are thus instances where there is no duty to compensate, Result of this disagreement: A dispute whether a
as when nothing is gained by the nationalizing state, like in compensation is appropriate is to be settled in an
the suppression of a detrimental industrial activity. arbitration which places the private company and the
developing States on the same level of adversary
Compensation under the UN Charter proceedings rather than in litigation between interested
Art. 2, par. 2: Each State has the right: (c) To States
nationalize, expropriate or transfer ownership of
foreign property, in which case appropriate Anglo-Iranian Oil Co. case: Investment agreements cannot
compensation should be paid by the State be considered international treaties. The cancellation of
adopting such measures, taking into account its such agreements by the nationalizing state is not a breach
relevant laws and regulations and all of international obligation, but it is subject appropriate
circumstances that the State considers pertinent. compensation.
In any case where the question of compensation
gives rise to a controversy, it shall be settled On Stabilization Clauses
under the domestic law of the nationalizing State A stabilization clause is a clause which states that the
and by its tribunals, unless it is freely and agreement will not be altered during its term w/o the
mutually agreed by all States concerned that consent of both parties. According to the author, despite
other peaceful means be sought on the basis of such clauses, the state still has the right to nationalize due
the sovereign equality of States and in to its permanent sovereignty. The only consequence is
accordance with the principle of free choice of that such nationalization must have been paid with special
means. compensation.
According to the author, Art. 2, par. 2 does not mention On Calvo Clauses
“prompt, adequate and effective compensation” nor is it Calvo Clauses are those which state that “commercial
based on a position which denies the existence of any companies, national or foreign, are subject, without
obligation to pay compensation. Rather, it is rooted in restrictions, to the laws of the Republic. In every state
equitable considerations. Appropriate compensation contract with foreigners or in the concession contracts
under the UN charter allows a domestic or international granted in their favor, it must be expressly stated that they
decision-maker to consider elements of unjust enrichment will submit to the laws and courts of the republic and
in the background of investment to determine what renounce all diplomatic claims.” In effect, the private party
constitutes appropriate compensation. As such, the UN agrees not to call on his state of nationality in any issues
charter cannot be said to have utterly rejected arising out of the said clauses. Industrialized states have
international law. Doctrine of “prompt, adequate and disputed the validity of these clauses, saying they
effective compensation” was simply replaced by the constitute a waiver by a private party f a state’s inalienable
equitable principle. right to protect its citizens abroad. However, the author
said that as a governmental party is expected to comply
On Investment Agreement between States and with an arbitration or stabilization clause of a contract, a
Private Persons Calvo clause must be observed on the basis of the
There was a disagreement as to the legal status of principle of good faith.
investment agreements between States and private
companies. Industrialized States’ view: agreements As such, the equitable balancing nature of the provision
concluded by a state with private foreign companies are and the concept of good faith as applied to international
on the same footing as inter-state agreements obligations must be considered in interpreting the rights
and duties of States under Art. 2, par. 2 of the UN Charter.
Countries of the Group of 77 view: Agreements between Absence of an express reference to the principle of good
states and private foreign companies are not international faith in the said Article does not mean the duty to perform
agreements and because they were not concluded contractual obligations in good faith has been excluded
between states, they are governed by the domestic law of from the Charter. International law may act as a factor to
the state concerned; such agreements did not have limit the freedom of a state when an alien’s interest is
international status because private companies are not affected, even if Art. 2 of the Charter does not expressly
subjects of international law. say so.
- Reason behind this view: fear that giving such
agreements the status of international
agreements might give the character of general “ISSUES OF COMPENSATION AND
NATONALITY IN THE TAKING OF ENERGY
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ELSI case – treaty involved did not contain an express Development in recent years: International tribunals have
clause providing for protection of the corporations wholly shown willingness to appreciate that the value of an asset
owned by foreign corporations, with the closest form of is not something separable from its revenue-generating
protection being a substantive provision which permits capacity. In the case of the Iran-US Claims Tribunal, it has
corporations of one party to organize, control and manage adopted this view through the Discounted Cash Flow (DCF),
corporations of the other party. where the earning capacity of an asset during its
- Judge Oda: it was possible that ELSI could’ve productive life is determined, deducting from such the
suffered wrongs that did not necessarily affect cost of its doing so then using an appropriate discount rate
Raytheon (ELSI’s parent company; Raytheon is a to produce a capital sum representing the present value of
US company) and thus, the US and Raytheon the future flow of earnings.
couldn’t have lodged an international claim.
Aside from these, Lauterpacht noted that there is
In sum, the wide power shareholders of one nationality to inclination to introduce equity as an element in the
bring claims on behalf of companies of another nationality calculation of compensation. Lauterpacht pointed out that
must be expressly spelled out, as was done in the Claims despite the attractiveness of the concept of equity, t it is
Settlement Declaration in the Iran-US Claims Tribunal not a concept that “can be sprinkled like salt on every part
where the claims of nationals were characterized as being of the law”, particularly in situations where the law
“owned indirectly by such nationals through ownership of prescribes absolute rules not qualified by equitable
capital stock or other proprietary interests in juridical requirements. He said that qualifications that an absolute
persons, provided that the ownership interests of such rule is subject to equity or equitable considerations must
nationals were sufficient at the time the claim arose to be expressly stated, lest these weaken the legal effect of
control the corporation or other entity.” clear rules.
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- When must equitable principles be taken into is required to pay full, adequate and complete
account? compensation for the losses suffered by
o In converting the established value of Americans
an asset into a specific sum to be Goldenberg case – based on the Treaty of
awarded as compensation or damages Versailles, full compensation should be made
even in case of lawful taking (not 1/5 of its value,
otherwise, there will be wrongful compensation
M. MEDELSON – WHAT PRICE EXPROPRIATION? for the unpaid 5/6)
COMPENSATION FOR EXPROPRIATION: THE De Sabla case – taking by the government of an
CASE LAW alien’s property constitutes an international
by M. Medelson (1985) responsibility and the state should pay full
compensation
Thesis: The formula used by international case law for
Postwar cases:
lawful expropriations by the government of an alien’s
property, is the Hull formula or the “prompt, adequate, LIAMCO cases (in relation to Libya’s
effective compensation” nationalization decrees confiscating foreign-
owned oil concessions in Libya as also discussed
The paper is in response to an Editorial
in Texaco v. Libya, BP v. Libya) – the nationalizing
Comment written by Professor Schachter that
state should pay full compensation for the loss
the use of the Hull formula is questionable and
sustained based on the fair market value of the
that the case law actually uses a flexible
plant and properties. The Court also awarded an
standard that is not necessary full compensation,
equitable compensation with some elements of
so long as it is “just”.
compensation for loss profits due to the
confiscation of the concession.
In analyzing the case law, Medelson first examined the
prewar cases (also cited by Schachter in his Comment): AMINOIL case – taking for nationalization
purposes is not per se unlawful but the former
Chorzow Factory case – contrary to Schachter’s
owner is entitled to full compensation or the
claims that the Court only required payment of
depreciated replacement value of its assets
“fair compensation”, a perusal of the decision
shows that the court required, as a matter of American International Group v. Iran – the
Tribunal did not decide on the applicability of
obiter dicta, that Poland should pay the “just
the Treaty of 1955 to decide the amount of
price of what was expropriated and the value of
the undertaking at the moment of the compensation but held that customary law
undertaking at the moment of dispossession provides for the standard of prompt, adequate
o (consistent with the full compensation and effective compensation. The Tribunal
required Iran to pay the fair market value of the
standard)
shares at the time of nationalization, including
o The Court here also differentiated the
pecuniary obligations in a lawful and loss of future profitability and good will.
unlawful taking
o if the payment is unlawful, if
restitution in integrum is impossible, WORLD TRADE ORGANIZATION
then compensation for consequential
loss is also necessary
Norwegian Shipowner’s Claims (1922) – “THE PHILIPPINES AND THE WTO: SURVEY OF
applicable standard used here is “just CURRENT PRACTICES WITH EMPHASIS ON
compensation” but Medelson stressed that this ANTI-DUMPING, COUNTERVAILING DUTIES
just compensation is based on the notion of just AND SAFEGUARD MEASURES”
compensation as used in the US. Based on the by H. Harry Roque
Fifth Amendment of the US constitution, just
compensation is the fair valuation of the Constitutional Framework
property based on what a willing buyer is willing The Philippines is the only World Trade Organization (WTO)
to pay a willing seller. Again, this is full member whose Supreme Court has pronounced on the
compensation. constitutionality of the country’s entry into the WTO.
Tañada v. Angara: Petitioners contended that
In addition to these cases, Medelson also listed some
the WTO provisions, such as the most-favored-
international cases that used the standard of full
nation (MFN) clause, the national treatment
compensation:
principle and the Agreement on Trade-Related
Administrative Decision No. 2 decided by US- Investment Measures (TRIMS Agreement)
Germany Mixed Claims Commission – Germany
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o An anti-dumping duty was levied on The difference in the 2 cases was in the issue of the
CRC’s from Malaysia only by reason of existence of increase imports of the relevant
default since both the Malaysian commodities and in the elements of serious injury
exporter and the Malaysian Embassy and causal relationship:
refused to participate in the Ceramic tile case: There was a dramatic increase
investigation in imports and increase relative to domestic
- Resins from Korea case: collection of the duty production from 17% to 68%. Also noted was the
was suspended, in response to consultations decline in market share of the domestic industry
against the duty requested by Korea in Geneva and an erosion of its competitive position (which
pursuant to the WTO dispute resolution equates to serious impairment of the overall
mechanism. market position for domestically produced like
products)
In the other cases, the Tariff Commission refused to
impose the duty even if Protestants in all instances were Portland Cement case: The Tariff Commission
able to prove dumping and even material injury, because determined the existence of a surge in imports
the Protestants failed to prove the required causal from 1996 to 2000 but concluded there was no
connection between dumping and the material injury. serious injury or a threat of injury to the
domestic industry and thus, no need to prove a
Safeguard Measures causal relationship. The Commission noted that
Requirement by the WTO for safeguard measures = proof the decline in domestic consumption and not the
of a surge of imports either because of unforeseen entry of imports caused the decline in domestic
circumstances OR the implementation of the provisions of sales of local products, that there was no
the WTO (e.g., tariff reduction), a serious injury or threat significant decline in production and total goods
to domestic industry. The threshold for safeguards is lower sold, no underutilization of capacity and no
than dumping duties and countervailing duties (only a uniformity in the financial performance of
serious injury or a threat of it and not material injury may domestic producers (as only the complainants in
resort to safeguards temporarily, and solely to give them this case suffered losses, according to the
the chance to compete against the sudden surge of commission). The decision not to impose
imports) safeguard measures was based on positive
evidence that one of the elements required for
2 Factors Which Tempers the Resort to Safeguard the imposition of the measures was lacking.
Measures:
1. Measures are applied on commodities regardless DTI Sec. Mar Roxas described the decision as
of origin wrong and declared he would impose
2. Stringent reportorial requirements where permanent safeguard measures or extend the
member nations have to report even the start of provisional duty on cement. Under the law, he
a safeguard investigation couldn’t do either because such power is
granted to the Tariff Commission. Prof. Roque
Safeguard measures, by way of a case study on the said this episode demonstrates the need to
Philippines’ compliance with the WTO, are illustrative of educate our highest ranking competent
Philippine State Practice and how much our competent authorities not only on the issue of compliance
authorities know about the WTO. but also with respect to our treaty obligations
under the WTO. Roxas ended up promulgating a
- Portland cement investigation finding: safeguard
decision stating that he was bound by the
measures were not imposed
negative finding of the Tariff Commission and
- Cement tile investigation finding: imposed has no alternative but to abide by the Tariff
safeguards Commission’s recommendations. The application
of safeguard measures was thus denied. The CA
Criteria for the two findings: a) existence of a surge in ruled that the DTI Secretary was not bound by
imports as result of unforeseen developments, b) that recommendations of the Tariff Commission, but
product in consideration was being imported in such the SC overturned this ruling. This case shows
increased quantities as to cause or threaten to cause the independence of the Tariff Commission and
a serious injury, c) domestic product is a like product the fact that its factual findings constitute the
(relative or absolute likeness), d) presence and extent final determination as to whether 1) a product is
of serious injury or threat to the domestic industry of being imported into the country in increase
the like product, and e) existence of a causal quantities [whether the product is absolute or
relationship between increased imports and the relative to domestic production, and 2) whether
serious injury or threat thereof.
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the importation in increased quantities causes just a hortatory provision which cannot be legally enforced
serious injury or threat to domestic industry. as a matter of right without any supporting legislation.
The Philippines and the WTO Dispute Settlement The signing of the WTO Agreement should not be viewed
Mechanism as a limitation on economic sovereignty. The WTO
The Philippines has been a complainant once, in the remains as the only viable structure for multilateral trading
desiccated coconut case against Brazil. The case was filed and a forum for the development of international trade
by a Philippine delegation shortly after a Filipino, Justice law. Its alternative is isolation, stagnation or economic
Feliciano, was elected to be the first ever President of the self-destruction. The Philippines accommodates
Appellate Body of the WTO. The complaint arose from a international trade agreements anchored on the policy of
121.5% countervailing duty levied on Philippine desiccated equality and reciprocity.
coconut, despite the minimal amounts of coconut
exported by the country to Brazil, which incidentally, is Amicus Curiae Memo of Lilia Bautista
another coconut producing country.
The Philippines lost after Brazil pointed out that
the proper venue for the Philippine action was AMICUS CURIAE MEMORANDUM OF AMB.
not the WTO but the GATT95 dispute settlement LINDA R. BAUSTISTA
mechanism since the levy was imposed under In Tañada v. Angara, G.R. No. 118295 (1997)
the GATT.
Lilia Bautista, the Permanent Representative to the UN,
Since 1995, the Philippines has preferred to settle all WTO, and other International Organizations in Geneva,
claims against itself Switzerland, was requested by the Court to prepare and
In the Korean resins case, the collection of the submit a paper
anti-dumping duty imposed on the resins was a) providing a historical background of the WTO
suspended) agreements; and
In the case of American import restraints against b) summarizing said agreements
shrimp and shrimp products, the Philippines has
abandoned its challenge to the said import Historical Background of the WTO Agreements
restraints The Havana Charter
The idea of setting up an international organization on
Conclusion trade was conceived when the United Nations Economic
Our actual participation in the dispute settlement and Social Council set up a Preparatory Committee to draft
mechanism of the WTO has been a case of non-exercise of the charter of an International Trade Organization. The ITO
treaty rights since we have resorted to this mechanism was meant to set a code of principles on fair trade and
only once, despite the fact that case law seem to be in our related economic transactions designed to remove
favor in some other controversies confronting us. protectionist measures for a freer trade environment. It
was also intended to be the organizational structure to
oversee adherence to the principles.
TANADA v. ANGARA
G.R. No. 118295 (1997) The negotiations for the ITO were concluded in 1948 in
Havana. However, the charter did not materialize.
Petitioners sought to nullify the Philippine ratification of Nonetheless, 23 countries exchanged tariff reductions in
the World Trade Organization (WTO) Agreement on the 1947 and took out the Commercial Policy Chapter of the
ground that it limits, restricts and impairs Philippine Havana Charter, and recast it into the General Agreement
economic sovereignty and legislative power and does not on Tariffs and Trade (GATT), before the conclusion of the
take into consideration the Constitution’s Filipino First negotiations on the charter of the ITO.
policy since it gives foreign trading intervention.
GATT 1947
The Court ruled that the Philippine Constitution adopts the GATT is premised on the recognition that trade and
generally accepted principles of international law as part economic endeavor should be conducted with a view to
of the law of the land as stated in the Declaration of raising the standards of living, ensuring full employment,
Principles and State Policies and by the doctrine of allowing optimal use of the world’s resources, and
incorporation, the country is bound by generally accepted expanding the production and exchange of goods. GATT
principles of international law which are automatically was meant to create order and predictability in
considered part of the Philippines’ laws. As it is an international trade relations. The function of GATT was to
international agreement, it must be performed in good prevent such policies and put order in the system. It
faith (pacta sunt servanda). A treaty creates a legally resolves not only conflict of interest between nations, but
binding obligation on the parties. The Filipino First policy is also conflicts of interest within.
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In the area of services, only those services actually offered Each member shall ensure the conformity of its laws,
by a party were treated as bound commitments. The regulations, and administrative procedures with its
system of offers in the area of services allowed obligations as provided in the covered agreements.
impositions of conditions on market access and national
treatment. We have offered only four sectors in the area
of services: telecommunications, transport, financial JAPAN – TAXES ON ALCOHOLIC BEVERAGES
services, and tourism. (1996)
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Gasoline Rule (because it prevented imported gasoline applied where there is data on administrative, selling and
from benefitting from the same favorable sales conditions general costs and profits for only 1 other exporter or
given to domestic gasoline with respect to how baseline is producer, and that a state may exclude sales by other
established) resulted in a less favorable treatment exporters or producers not made in the ordinary course of
accorded to imported gasoline without any concern for trade to calculate the amount for profits under the Anti-
the air quality effect and the enforcement of such a rule. Dumping Agreement.
The baseline establishment rules fall within the terms of
Art. XX(g) of the GATT, which article allows countries an
exemption from compliance with certain GATT provisions
if a measure passed by a state relates to the conservation
of exhaustible natural resources AND if such measures are
made effective in conjunction with restrictions on
domestic production or consumption. The baseline
establishment rules in this case fail to meet the
requirements of the said GATT article.
The panel in this case held that the EC did not comply with
articles of the Anti-Dumping Agreement when it
considered all imports from India, Egypt, and Pakistan as
dumped in its analysis of injury caused by dumped imports,
in determining the existence of margins of dumping on the
basis of a methodology incorporating the practice of
zeroing, in failing to evaluate all relevant factors having a
bearing on the state of the domestic industry, in
considering information for producers not part of the
domestic industry as defined by the investigating authority
in analyzing the state of the industry, and in failing to
explore possibilities of constructive remedies before
applying anti-dumping duties.
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