NOTE: PLEASE

REFER TO
SUPPLEMENT #1
PUBLIC
FOR SOME
CORRECTIONS
AND ADDITIONS
INTERNATIONAL
- ED.
LAW
UP LAW A2015 reviewer for the class of

Prof. H. Harry L. Roque

AFRICA, AMABEL KAY

AMORIN, DANNIEL ROY
ARCILLA, JOHN MARK
BELTEJAR, JAN ROBERT
DE LEON, CLAIRE
FABELLA, LINDSEY
JAVELOSA, RANULFO III
PEÑALBER, AMIRAH
IN GENERAL .................................................. 1 Vienna Convention on the Law of Treaties
............................................................ 98
SOURCES OF INTERNATIONAL LAW ............. 2
F. Vienna Conventions on Diplomatic
ACTORS IN INTERNATIONAL LAW .............. 20 Relations and Consular Relations, and
Optional Protocols ............................... 109
States ........................................................... 23
VIENNA CONVENTION ON DIPLOMATIC
A. Territorial Sovereignty ........................... 24
RELATIONS ................................................ 109
B. UNCLOS 35
VIENNA CONVENTION ON CONSULAR
BASELINES .................................................. 35 RELATIONS ................................................ 113
INTERNAL WATERS AND INNOCENT International Organizations ........................117
PASSAGE ..................................................... 38
A. The UN Charter and the Use of Force .. 117
TERRITORIAL SEA ........................................ 40
B. International Court of Justice............... 130
STRAITS AND TRANSIT PASSAGE................. 45
APPLICABLE LAW ...................................... 131
ARCHIPELAGOS ........................................... 48
JURISDICTION ........................................... 131
CONTIGUOUS ZONE .................................... 50
ADVISORY OPINIONS ................................ 131
CONTINENTAL SHELF .................................. 50
CASES ON JURISDICTION .......................... 133
EXCLUSIVE ECONOMIC ZONE ..................... 57
CASES ON PROVISIONAL MEASURES ........ 136
DELIMITATION OF MARITIME BOUNDARIES
CASES ON DISPUTE ................................... 136
.................................................................62
CASES ON ADVISORY OPINIONS ............... 138
HIGH SEAS................................................... 62
RIGHT OF ACCESS OF LAND-LOCKED STATES
The Individual .............................................141
TO AND FROM THE SEA AND FREEDOM OF A. Human Rights ....................................... 141
TRANSIT ...................................................... 63
B. International Criminal Law ................... 143
THE AREA .................................................... 64
C. Foreign Investments and Natural
NAVIGATION ............................................... 65 Resources............................................. 145
SETTLEMENT OF DISPUTES ......................... 68 WHEN LAWFUL ......................................... 154
PEACEFUL USE OF THE OCEANS ................. 68 WORLD TRADE ORGANIZATION ............... 162
C. Jurisdiction and Immunities ................... 69
JURISDICTION ............................................. 69
SOVEREIGN IMMUNITIES............................ 71
D. International Responsibility ................... 89
E.

UP LAW A2015 PUBLIC INTERNATIONAL LAW REVIEWER GROUP

JAVELOSA, RANULFO III AFRICA, AMABEL KAY BELTEJAR, JAN ROBERT

Head AMORIN, DANNIEL ROY DE LEON, CLAIRE
ARCILLA, JOHN MARK FABELLA, LINDSEY
PEÑALBER, AMIRAH
Members
 This reviewer contains information drawn from
various sources, including primary source materials
(e.g. cases, international law references), notes
from class discussions, as well as existing reviewers.
We in no way warrant the accuracy of the
information herein provided. Neither do we give any
assurance that it would suffice with respect to
whatever end you may have for it and in satiating
one’s thirst for knowledge of international law.

While useful for purposes of review, this is in no way

intended to substitute actual classroom learning and
exhaustive study of primary materials. We exhort
users to continue to study the subject matter
consistent with the (extraordinary) diligence
expected of a student of law.
PUBLIC INTERNATIONAL LAW
IN GENERAL
International Law, Defined
It is a body of legal principles, norms, and processess, which
regulates the relations of States and other international
persons, and governs their conduct affecting the interests
of the international community as a whole. (Higgins,
Chapter 1)
Shortcomings of Traditional Rules-Based Definition
Traditionally, it was defined as “rules applicable to states
with their relationship with one another”. There are two
limitations to this definition:
1) When there are no existing rules; and
2) Who sets the rules.
The Southwest Africa Cases (infra.) is an example of
the limitation of defining international law as a rules-
based system. In that case, the International Criminal
Court (ICJ) refused to exercise jurisdiction over the
question of whether or not the system of apartheid
was in accord with international law. The Court ruled
that,
“(Despite) the various considerations of a
non-judicial character, social, humanitarian
and other…these are matters for the political
rather than for the legal arena.”
By referring strictly to international law as a corpus of
rules, it effectively deemed the moral and ethical
issues surrounding systematic racial segregation as
non-legal matters that the Court could not take
cognizance of.
This development rendered the ICJ (then) a useless
body, and has led to a push for the creation of other
tribunals (e.g. International Tribunal on the Law of
the Sea [ITLOS].)
CLASS NOTES
International Law as a Normative System
It should be viewed as a normative system, not merely as a
set of rules. It is the process of authoritative decision-
making part of a normative system taking into consideration
important elements that are not rules or jurisprudence.
(Higgins, Chapter 1)
Making judments on the basis of international law goes
beyond simply “finding the rule” and applying it. Neither
should the accumulated trend of past decisions be applied
indiscriminately.
Policy and extra-legal considerations, though different from
rules, are an integral part of that decision-making process.
It involves interest in claims and counterclaims,
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state practice, and decisions by a variety of authorized
decision makers. (ibid.)
Hersch Lauterpacht, an eminent expert in international law,
agrees with the position that international law is not the
mere application of rules; instead, it is a choice between
competing or conflicting claims on the basis of superiority.
Q: Why is international law “law”?
States consider them law because:
1. It upholds and embodies their values;
2. It is in their national interest;
3. They consider as law that ought to be
followed
Basis of International Law
Higgins (ibid.) outlines three bases which explain
international law’s binding nature:
1. Natural Law
Some writers suggest that it is in the natural order
of things that certain matters should be regulated
in compulsory manner. An obligatory foundation
to the basic precept of justice is to be found in
natural law, which gives rise to ibligations
consisting in what is essentially necessary for
subsistence and self-preservation.
2. Consent
This is based on the sovereignty of state, which in
turn emphasizes their freedom to act unilateraly
save to the extent they agreed upon to be
constrained. This advances the view that the
obligatory character of international law is made
by the concordance of the wills of states.
3. Reciprocity
States perceive a reciprocal advantage in
cautioning self-restraint in terms of committing
violations of international law norms.
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PUBLIC INTERNATIONAL LAW A2015

A treaty contrary to a custom or a general principle part of

SOURCES OF jus cogens would be void or voidable. (Brownlie, Chapter 1)

INTERNATIONAL LAW While a treaty is principally binding only on parties, in some

cases its provisions may produce a strong, law- creating
effect at least as great as the general practice considered
sufficient to support a customary rule, given the:
ICJ Statute, Article 38.  number of parties;
 explicit acceptance of rules of law; and
1. The Court, whose function is to decide in  declaratory nature of the provisions. (Brownlie,
accordance with international law such disputes as Chapter 1)
are submitted to it, shall apply:
a. international conventions, whether Q: Can the resolutions of the UN General Assembly
general or particular, establishing rules be considered as a source of international law?
expressly recognized by the contesting
states; In general, UN GA resoultions are non-binding.
b. international custom, as evidence of a However, when they are concertned with general
general practice accepted as law; norms of international law, an acceptance by a
c. the general principles of law recognized majority vote constitutes evidence of the opinions of
by civilized nations; governments in the widest forum of expression of such
d. subject to the provisions of Article 59, opinions. (ibid.)
judicial decisions and the teachings of the
most highly qualified publicists of the They are also considered as a first step in the proces of
various nations, as subsidiary means for law creation, and may be evidence of developing trends
the determination of rules of law. of customary law. (Higgins, Chapter 2)

2. This provision shall not prejudice the power of Nonetheless, resolutions cannot be a substitute for
the Court to decide a case ex aequo et bono, if the ascertaining custom. Each resilution must be assessed
parties agree thereto. in the light of all the sircumstances and also by
reference to toher evidence of opinions of states on
The ICJ statute provides an enumeration of sources that the the point in issue. (Brownlie, Chapter 1)
Court shall apply with respect to controversies.
International Custom; Elements
(Brownlie, Chapter 2)
*Note that this is not an enumeration of sources of
1. Duration
international law; it is only a list of things that the court can
No particular duration is required. While passage
consider in arriving at decisions.
of time can be considered as part of the evidence
of generality and consistency, a long practice is
A. International conventions
not necessary.
B. International custom Primary Sources
2. Consistent state practice
C. General principles of law
In invoking custom, it must be proven that there is
a constant and uniform usage of a custom practised
D. Judicial decisions and Secondary Source
by the states in question. (Asylum Case, infra.)
teachings of publicists
Complete uniformity is not required; substantial
uniformity is enough.
There exists a hierarchy among the sources. A, B and C are
3. Generality of practice
primary sources, while D is a secondary source.
4. Opinio juris sive necessitatis
This refers to a recognition by states that a certain
The Court is not constrained to consider only one source. Its
practice is “obligatory,” and a belief that such
decisions may arise as a result of a combination of sources.
practice is required by, or consistent with
international law. They do so for the reason that
International Conventions; Treaties
the practice is required by law, and not merely
International conventions and treaties are sources of
because of courtesy or political expediency.
obligations in the nature of domestic contracts. These call
into operation the principle of pacta sunt servanda, literally,
This exists when states must have behaved in
agreements must be kept. These, tribunals will merely
such a way that their conduct is “evidence of a
interpret.
belief that practice is rendered obligatory by the

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PUBLIC INTERNATIONAL LAW
existence of a rule of law requiring it.” (North
Sea Continental Shelf Cases, infra.)
A new norm cannot emerge without both practice and
opinio juris; and an existing norm does not die without the
great majority of states engaging in a contrary practice and
withdrawing their opinio juris. (Higgins, Chapter 2)
In order for a practice to crystallize into a customary
norm, class discussions and Higgins (ibid.) only point to
the following essential elements:
1. Consistent state practice; and
2. Opinio juris
CLASS NOTES
Q: What is the effect of a breach of a customary
international norm?
Generally, a breach of a customary norm can give rise
to the birth or creation of a new norm. There would
thus be instances where state conduct inconsistent
with established rules can be an indication of the
recognition of a new rule.
However, “if a state acts in a way prima facie
incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications
contained within the rule itself,…the significance of
that attitude is to confirm rather than to weaken the
rule.” (Case Concerning Military and Paramilitary
Activities in and against Nicaragua [Nicaragua v. USA],
supra.)
General Principles of Law
This refers to analogies derived from general principles of
municipal law. According to Brownlie (Chapter 1), the
rationale for its inclusion is to authorize the Court to apply
municipal law principles, legal reasoning and private law
analogies insofar as they are applicable to relations
between states in order to make the law of nations a viable
system for application.
This category also contemplates principles traced to state
practice regarded as such by civilized nations. These include
principles of consent, reciprocity, equality among states,
finality of awards and settlements, legaility of agreements,
good faith, and domestic jurisdiction. (ibid.)
Judicial Decisions
Decisions of the ICJ are merely “subsidiary means for the
determination of rules of law,” and consitute only an
evidence of the law. The ICJ applies the law and does not
make it. However, it may be contended that a unanimous
or almost unanmous decision has a role in the progressice
development of law.
ICJ Statute, Article 59.
The decision of the Court has no binding force
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except between the parties and in respect of that
particular case.
Moreover, the ICJ does not observe stare decisis or the
principle of judicial precedent, though it strives to maintain
judicial consistency.
Decisions of national tribunals also have evidential value.
They provide indirect evidene of the practice of the state of
the forum on the question involved. Writers also make
frequent reference to municipal decisions. (ibid.)
Teachings of Publicists
Teachings of publicists are also only evidence of law.
Nonetheless, they are used widely in arbitral tribunals,
national courts, and the ICJ itself, and there are cases where
writers have had a formative influence on international law.
(ibid.)
Jus Cogens Norm
A jus cogens or peremptory norm is a norm which States
cannot derogate or deviate from in their agreements. It
owes its status from the fact that the community as a whole
regards these norms as of critical importance, such that
particular states cannot “contract-out” of them. It is
mandatory and cannot be set aside or modified by
agreement. (Higgins, Chapter 2)
Q: Is a jus cogens norm the same as an erga omnes
obligation?
No. A jus cogens norm is a peremptory norm which
states consider as one from which no derogation is
permitted.
An erga omnes obligation, on the other hand, refers to
obligations that a state owes to the international
community as a whole. Given the importance of the
rights involved, all states can be held to have a legal
interest in their protection. (Case Concerning The
Barcelona Traction, Light and Power Company,
Limited) As such, it is used as a remedial law principle
that allows all states to have standing with respect to
its breach.
“The notion of erga omnes is concerned with standing;
that of jus cogens with the non-derogable quality of a
norm.” (Higgins, Chapter 9)
In the Case Concerning East Timor (Portugal v.
Australia) (infra.), Portugal invoked the erga omnes
obligation of right to self-determination in order to
press a claim against Australia in its actvities in East
Timor, though it in itself was not directly affected by
Austalia’s acts.
Formal v. Material Sources
1. Formal Sources – consist of the methods and
procedures by which norms are created. For
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PUBLIC INTERNATIONAL LAW
example, the constitutional machinery of law
making in municipal law.
The ICJ cannot be considered as a formal source
because it does not have the concept of stare decisis.
UN GA Resolutions also cannot be formal sources
because they are merely restatements of customs.
CLASS NOTES
2. Material Source – they are the substantive
evidence of the existence of norms. They supply
the substance of the rule to which the formal
sources gives the force and nature of law. In other
words, they are evidence that the norm in fact
exists. For example, RA in printed form.
ICJ Statute, Article 53.
1. Whenever one of the parties does not appear
before the Court, or fails to defend its case, the
other party may call upon the Court to decide in
favor of its claim.
2. The Court must, before doing so, satisfy itself, not
only that it has jurisdiction in accordance with
Articles 36 and 37, but also that the claim is well
founded in fact and law.
Q: Does repetition play a role in the development
of international law?
Repetition is necessary because a customary
international norm arises out of repeated state action.
It is therefore basic to the formation of a rule of
conduct. Norms of international law are created by
States through definite norm-creating methods
accepted or recognized by them as a means of
expressing consent as to their binding effect. In other
words, international law is based on their normative
consent.
KURODA v. JALANDONI
83 Phil 171 (1949)
Shigenori Kuroda was formerly a Lieutenant-General of the
Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in the Philippines (1943-1944). He
was charged before a Military Commission convened by the
Chief of Staff of the Armed Forces of the Philippines for the
atrocities committed by Japanese Forces against civilians
and other conduct during the war.
Kuroda: The Military Commission has no jurisdiction
to try him.
 No jurisdiction to try him for acts
committed in violation of the Hague
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Convention and the Geneva Convention
because the Philippines is not a signatory
thereto at the time of the commission of
the acts.
The Commission had jurisdiction to try him.
The Military Commission had jurisdiction to try Petitioner
because even if the Philippines was not a signatory to the
Conventions, which both US and Japan were signatories to,
the rules and regulations of the Hague and Geneva
conventions form part of and are wholly based on the
generally accepted principles of international law. Such rules
and principles form part of the law of our nation .
Moreover, when the crimes charged against petitioner
were allegedly committed, the Philippines was under the
sovereignty of United States and thus we were equally
bound together with the United States and with Japan to
the right and obligation contained in the treaties between
the belligerent countries. These rights and obligation were
not erased by our assumption of full sovereignty. As held in
Laurel v. Misa, “The change of our form government from
Commonwealth to Republic does not affect the prosecution
of those charged with the crime of treason committed
during the Commonwealth because it is an offense against
the same sovereign people.”
This case illustrates the relationship between
customary law and treaty law.
On the one hand, if a treaty provides conventional law,
only the parties thereto are bound. On the other hand,
if a treaty provides customary law, all states,
signatories thereto or not, are bound.
This decision finds support in the Incorporation Clause
in Article II, Section 2 of the Philippine Constitution.
However, this case shows that even without the said
clause, general principles of international law
continue to be binding by virtue of
our membership in the community of nations,
CLASS NOTES
YAMASHITA v. STYER
75 Phil 563 (1945)
Tomoyuki Yamashita is a commanding general in the
Japanese Imperial Army in the Philippines. From being a
prisoner of war after his surrender, his status was changed
to that of an accused war criminal and was charged before
an American Military Commission for having allowed
members under his command to commit massacre of
thousands of unarmed non-combatant civilians.
Yamashita: The Military Commission has no jurisdiction
to try him.
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PUBLIC INTERNATIONAL LAW
 Commission was not duly constituted;
 The Philippines is not a US-occupied
territory, hence an American military
commission does not have jurisdiction
therein;
 He did commit any offense against the
laws of war.
The Commission had jurisdiction to try him.
SC cannot exercise jurisdiction over the acts of the Military
Commission. Citing Raquiza v Bradford, the Court held that
any attempt of our courts to exercise jurisdiction over the
US Army before the end of a state of war would amount to
a violation of the Philippines’ faith. The state of war did not
end with the cessation of hostilities; incidents of war (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.
The Commission was duly constituted in accordance with
the authority of General MacArthur as commander of US
Forces and the Joint Chiefs of Staff. Per the Articles of War,
a military commander has an implied power to covene a
Military Commission for the purpose of trying offenders or
offenses against the laws of war in appropriate cases as it is
an aspect of waging war.
Jurisdiction over Yamashita was acquired by virtue of his
capture by US forces. And the charges against him – brutal
atroities against unarmed civilians and other high crimes,
among others – are offenses against the laws of war over
which the Commission ahs jurisdiction.
During the liberation, the Philippines was occupied by US
forces for the purpose of removing Japanese forces. The
formation of the Commission is an incident of such
liberation, and this has jurisdiction.
Perfecto, J., concurring and dissenting.:
The Philippines is bound to treat Yamashita in accord with
established rules of treating war criminals.
“Impelled by irrepressible endeavors aimed towards the
ideal, by the unconquerable natural urge for improvement,
by the unquenchable thirstiness of perfection in all orders of
life, humanity has been struggling during the last two dozen
centuries to develop an international law which could
answer more and more faithfully the demands of right and
justice as expressed in principles which, weakly enunciated
at first in the rudimentary juristic sense of peoples of
antiquity, by the inherent power of their universal appeal to
human conscience, at last, were accepted, recognized, and
consecrated by all the civilized nations of the world.”
“Yamashita is entitled to be accorded all the guarantees,
protections, and defenses that all prisoners should have
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according to the customs and usages, convention and
treaties, judicial decisions and executive pronouncements,
and generally accepted opinions of thinkers, legal
philosophers and other expounders of just rules and
principles of international law.”
Justice Perfecto’s separate opinion is perhaps the best
statement regarding the binding nature of
international humanitarian law and customary norms.
The excerpted paragraphs show that humanitarian law
is customary in nature by its “universal appeal to
human conscience, …recognized, by all civilized nations
of the world.”
His disquisition predates that of the Nuremberg trials.
CLASS NOTES
KOOKOORITCHKIN v. SOLICITOR GENERAL
81 Phil 435 (1949)
Eremes Kookoorithckin is a Russian applying for
naturalization in the Philippines. He was a member of the
White Russian Army and was part of a contingent of 1,200
which fled to Manila after the Russian Revolution. He is a
resident of Camarines Sur, married to a Filipina, works for a
bus company, and had in fact fought in the guerilla war
against the Japanese. Although Russian by birth, he
disclaims Soviet citizenship.
Solicitor He is not entitled to naturalization.
General:  There is no evidence that establishes his
legal entry into the Philippines
 He cannot speak English or Bicolano
fluently;
 No showing that he has lost his Russian
citizenship, or that he is stateless.
Kookooritchkin is a stateless refugee entitled to
naturalization.
No further proof of his legal entry is necessary. His arrival
as part of the group of Russian soldiers was well
documented, and his continuous residence in the
Philippines for 25 years without issue can be taken as
evidence of the legality of his residence.
It is well known that the Soviet dictatorship has left
thousands of stateless refugees and displaced persons
without country and without flag. Its oppression has made
it natural for those who were able to escape from it to “feel
the loss of all bonds of attachment” therefrom. As such,
there is no need for him to further prove his statelessness
apart from his testimony that he “owes no allegiance to the
communist government” and that he has fled from it. He
even refused to claim Russian citizenship during the
Japanese citizenship even if it meant better conditions for
him.
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PUBLIC INTERNATIONAL LAW
“We are civilized people now so we don’t do harsh
things to each other.” (Karichi Notes, citing Prof.
Roque, 2010)
This case was not taken up during class.
CLASS NOTES
CASE CONCERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND AGAISNT
NICARAGUA
(NICARAGUA v. USA)
ICJ Reports 1986, p.14 (1986)
Nicaragua instituted proceedings against the United States
for the latter’s alleged responsibility for military and
paramilitary activities therein. It alleged that the US violated
its sovereignty by:
- Recruiting, training, financing and aiding the contras
(i.e. those fighting against the Nicaraguan
government), to the point that it exercises effective
control over them;
- Carrying out operations against Nicaragua through
persons under US command (e.g. mining of certain
Nicaraguan ports in early 1984, and attacks on its
ports, oil installations, a naval base, etc.)
Undertaking overflights of US aircraft over
Nicaragua, not only for intelligence gathering and
delivering supplies to the contras on the field, but
also to intimidate the population.
The US countered that its efforts were brought about by
the reports of Nicaraguan involvement in logistical support,
including provision of arms, for guerrillas in El Salvador.
Nicaragua: Court has jurisdiction on the basis of the
US’s acceptance of jurisdiction under:
 Treaty of Friendship, Commerce and
Navigation with Nicaragua; and
 Optional clause under Art. 36 par. 2 of
the ICJ statute
The United States is liable for the following:
 Violation of Art. 2, Par. 4 of the UN
Charter, and the customary international
law obligation to refrain from the threat
or use of force;
 Intervention in the internal affairs of
Nicaragua, breaching the Charter of the
Organization of American States and of
the rules of customary international law
forbidding intervention
 Violation of Nicarguan sovereignty and a
number of other obligations established in
general customary international law
and in the inter-American system.
United Court has no jurisdiction over the matter.
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States:  US terminated said treaty with Nicaragua,
and withdrew its agreement to the
optional clause.
 US submitted a multilateral treaty
reservation, which excluded disputes
arising under multilateral treaties from ICJ
jurisdiction, unless:
o All parties to the treaty affected by
the decision are also parties to the
case before the Court; or
o US specially agrees to jurisdiction
Court has jurisdiction.
Once an application has been commenced at a time when
the law in force granted the Court jurisdiction over the
controversy, any lapse of the law (by expiration, lapsing, or
revocation) thereafter cannot deprive the Court of
jurisdiction already established. Therefore, despite the US’
termination of the Treaty of Friendship, Commerce and
Navigation with Nicaragua, the Court may continue to
exercise jurisdiction.
Also, the US cannot take refuge in its multilateral treaty
reservation. The Court also held that customary law
operates independently of treaty law. The treaties
themselves only refer to pre-existing customary
international law. Principles such as the non-use of force,
non-intervention, respect for the independence and
territorial integrity of states, and the freedom of navigation
continue to be binding as part of customary international
law, despite the operation of provisions of conventional
law. Norms retain a separate existence; customary
international law continues to exist and to apply, separately
from international law. Therefore, a multilateral treaty
reservation would not operate to exclude the application of
any rule of customary international law the content of
which was the same as or analogous to that of the treaty
law rule.
On creation of customary norms
The Court said that the mere fact that states declare their
recognition of certain rules is not sufficient to consider such
as being part of customary international law. The rules must
exist in the opinio juris of states, which are confirmed by
practice.
It is not required that the corresponding practice must be in
absolute conformity with the rule. It is sufficient that the
conduct of states, should, in general, be consistent with
such rules and that instances of state conduct inconsistent
with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition
of a new rule. If a state acts in a way prima facie
incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications
contained within the rule itself, then whether or not the
State’s conduct is in fact justifiable on that basis, the
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significance of that attitude is to confirm rather than to
weaken the rule.
Opinio juris from GA resolutions
UN General Assembly Resolutions may be understood as an
acceptance of the validity of the rule or set of rules declared
by the resolution by themselves.
On the existence of armed attack
The Court does not believe that the concept of “armed
attack” includes not only acts by armed bands where such
acts occur on a significant scale, but also assistance to rebels
in the form of the provision of weapons or logistical or other
support.
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
has been so attacked. There is no rule in customary
international law permitting another state to exercise the
right of collective self-defense on the basis of its own
assessment of the situation.
NORTH SEA CONTINENTAL SHELF CASES
(GERMANY v. DENMARK; GERMANY v.
NETHERLANDS)
ICJ Reports 1969, p.5 (1969)
By two Special Agreements concluded between 1)
Netherlands and Germany (1 December 1964) and 1)
Denmark and Germany (9 June 1965), the Parties submitted
to the Court certain differences concerning “the delimitation
as between the Parties of [certain] areas of the continental
shelf in the North Sea which appertain to them”. The Court
was asked to decide the applicable “principles and rules of
international law” in the delimitation of the disputed areas.
The Court was not asked to actually delimit the boundaries
as the task was reserved to the Parties.
Most of the North Sea had already been delimited between
the Parties. However, they have been unable to agree on the
prolongation of the partial boundaries mainly because
Denmark and Netherlands wanted it to be based on the
Equidistance Principle, while Germany believed that it
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would lessen what it believed to be its proper share of the
area based on the proportionality to the length of its North
Sea coastline.
Denmark, The matter should be governed by a
Netherlands: mandatory rule of law called the
“equidistance-special circumstances” rule,
reflecting the language of Art. 6 of the 1958
Geneva Convention on the Continental
Shelf. In the absence of agreement of the
Parties to employ another method, “all
continental shelf boundaries had to be
drawn by means of an equidistance line,
unless ‘special circumstances’ were
recognized to exist.”
(In other words: The boundary should be
based on the “equidistance-special
circumstance” rule because it is a Rule of
Customary International Law – in the
absence of agreement by the states-
parties to employ another method or to
proceed to a delimitation on an ad hoc
basis, all continental shelf boundaries must
be drawn by means of an equidistance line,
unless or except to the 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).”
Alternatively, if the Equidistance Method
were held to be applicable, the
configuration of the German North Sea
coast constituted a special circumstance
that justifies not using such method in this
case.
(In other words: The equidistance principle
is not obligatory on states not parties to the
Convention. The rule that should be
applied is 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 coastline or sea- frontage. In
any case, the Equidistance Principle is not
applicable due to the
configuration of its coastline.)
Germany is not bound to accept the equidistance principle
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PUBLIC INTERNATIONAL LAW
The Court held that Germany was not under a legal
obligation to accept the application of the Equidistance
Principle because its practical convenience and certainty of
application are not enough to convert it into a rule of law. It
ruled that the Convention was not binding on Germany
because although it was a signatory, it never ratified, and
was consequently not a party. Denmark and Netherlands
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, and
in other ways. The Court held that only estoppel could give
merit to Denmark and Netherland’s contention; however,
they showed no evidence of such prejudice so Art. 6 was not
applicable to this case.
Equidistance principle is not inherent in continental shelf
doctrine
The Court held that the equidistance principle is not
inherent in the basic doctrine of the continental shelf.
Equidistance clearly could not be identified with the notion
of natural prolongation, since the use of the equidistance
method would frequently cause areas which were the
natural prolongation of the territory of one state to be
attributed to another. Hence, the notion of equidistance
was not an inescapable a priori accompaniment of basic
continental shelf doctrine.
No customary norm providing for use of equidistance
principle
The Court also held that the Equidistance Principle was not
a rule of Customary International Law. Its non-exclusion
from the faculty of reservation leads to the inference that it
was not considered as reflective of emergent customary
law. Moreover, the number of ratifications and accessions
was hardly sufficient to make it a general rule of
international law. As regards the time element, although
the passage of only a short period of time was not
necessarily a bar to the formation of a new rule of
customary international law on the basis of what was
originally a purely conventional rule, it was indispensable
that state practice during that period, including that of
states whose interests were specially affected, should have
been both extensive and virtually uniform in the sense of
the provision invoked and should have occurred in such a
way as to show a general recognition that a rule of law was
involved.
In the course of negotiations, the factors to be taken into
account were to include:
 the general configuration of the coasts of the parties,
as well as the presence of any special or unusual
features;
 so far as known or readily ascertainable, the physical
and geological structure and natural resources of the
continental shelf areas involved;
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 The element of a reasonable degree of
proportionality between the extent of the continental
shelf areas appertaining to each state and the length
of its coast measured in the general direction of the
coastline, taking into account the effects, actual or
prospective, of any other continental shelf
delimitations in the same region.
SOUTH WEST AFRICA CASES (ETHIOPIA v.
SOUTH AFRICA; LIBERIA v. SOUTH AFRICA),
SECOND PHASE
ICJ Reports 1966, p.6 (1966)
South West Africa (now present-day Namibia) was a League
of Nations Mandate Territory placed under the
administration of South Africa (as “mandatory”). Ethiopia
and Liberia, in their capacities as former members of the
League of Nations, filed this action against the Government
of South Africa, alleging that the latter had failed to
promote the well-being of the inhabitants of South West
Africa in violation of its Mandate.
Ethiopia, South Africa failed to promote the material
Liberia: and moral well-being of the inhabitants of
the Territory by:
 Practicing apartheid (i.e. distinction as to
race, color, national or tribal origin with
respect to rights of inhabitants) over the
Territory;
 Subjecting the territory to arbitrary
legislation and decrees detrimental to
human dignity, rights and liberties
inconsistent with the latter’s international
status.
Humanitarian considerations are sufficient
to generate legal rights and obligations,
which South Africa violated.
The Mandate system operated under a
“sacred trust of civilization” (i.e. aim of
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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PUBLIC INTERNATIONAL LAW
this is carried out.
South It is no longer bound to terms of the
Africa: Mandate upon the dissolution of the
League of Nations
The Court held that it could only rule on legal rights, not
on moral or ethical issues.
The ICJ is a court of law, and can take account of moral
principles only in so far as these are given legal form. While
humanitarian considerations may constitute the
inspirational basis for rules of law, they themselves do not
amount to law.
The “sacred trust” interest invoked has no residual juridical
content which could operate per se to give rise to legal
rights and obligations outside the system as a whole. It must
be something more than a moral or humanitarian ideal in
order to take on a legal character. In order to generate legal
rights and obligations, it must be given juridical expression
and be clothed in legal form.
This is an example of the limitation of defining
international law as a rules-based system. (see
comments, supra. p. 1)
“The principles set forth in this case have been
obliterated by later cases. Fundamental equality is
now considered an erga omnes obligation since it is a
fundamental human right.” (Karichi Notes, citing Prof.
Roque, 2010)
CLASS NOTES
ASYLUM CASE (COLOMBIA v. PERU)
ICJ Reports 1950, p.266 (1950)
Victor Raul Haya de la Torre, a Peruvian political figure,
applied for asylum before the Colombian Ambassador in
Lima after the Peruvian Government instituted rebellion
charges against him for leading a botched coup attempt.
The Colombian Ambassador granted him asylum, and
thereafter requested safe-conduct to enable the refugee,
whom he unilaterally qualified as a political offender, to
leave the country. Peru refused and insisted that he
committed common crimes so he was not entitled to enjoy
the benefits of asylum. The two Governments were unable
to reach an agreement so they submitted the matter to the
Court.
Colombia: An asylum-granting state (i.e. Colombia) is
entitled to unilaterally qualify persons
seeking asylum as political refugees. The
territorial state (i.e. Peru) is bound to
respect such qualification and to give the
guarantees necessary for the departure of
the refugee.
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Such rule is based on American international
law and constant and uniform practice
among Latin American states, as evidenced
by:
 Bolivarian Agreement of 1911, which
provided for the application of principles
of international law in the use of asylum;
 Montevideo Convention on Political
Asylum granted the right of qualification
of a refugee to the granting State
Peru: Colombia does not have the right of
unilateral qualification of a person as a
political refugee entitled to diplomatic
asylum.
Haya de la Torre is charged with a common
crime, hence asylum cannot be granted.
Colombia is not entitled to qualify a person as a political
refugee by a unilateral decision.
A decision to grant diplomatic asylum involves a derogation
from the sovereignty of that State. It withdraws the
offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively
within the competence of that State [Peru]. Such
derogation from territorial sovereignty cannot be
recognized unless there is legal basis.
The party which relies on a custom must prove that it is
established in such a manner that it has become binding on
the other party by a constant and uniform usage.
In the instant case, principles of international law do not
recognize any rule of unilateral and definitive qualification
by the State granting asylum.
The Montevideo Convention relied on by Columbia for
unilateral qualification has been ratified by 11 states and
has not been ratified by Peru. As such, it can neither be
taken as a reliable evidence of custom, nor be invoked
against Peru.
As shown by the inconsistency and rapid succession of
asylum conventions and their acceptance and rejection by
various states, there is so much fluctuation and discrepancy
in the exercise of diplomatic asylum that it is not possible to
discern any constant and uniform usage in support of
unilateral qualification, accepted as law by all States.
Haya de la Torre is not entitled to asylum.
While the charge of military rebellion was not a common
crime which would justify Peru’s objection to the asylum,
there was no urgency within the meaning of the Havana
Convention to justify a grant of asylum as there was no
imminence or persistence of a danger to the refugee.
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PUBLIC INTERNATIONAL LAW
Three months had elapsed between the military rebellion
and grant of the asylum. It was not proved that the situation
in Peru at the time implied the subordination of justice to
the executive or the abolition of judicial guarantees to
warrant the granting of asylum.
Extradition v. Asylum
 Extradition. – The refugee is within the territory of the
State of refuge. Also, the refugee is outside the territory
of the State where the offense was committed. The
decision to grant the refugee asylum in no way
derogates from the sovereignty of that State.
 Diplomatic Asylum. – The refugee is within the territory
of the State where the offense was committed. A
decision to grant diplomatic asylum involves a
derogation from the sovereignty of that State.
Colombia failed to prove the existence of a customary
international norm allowing unilateral qualification.
Asylum. – It is a fundamental human right to enter
another state in the ground of an unreasonable
persecution in a territorial state because of religious
belief, ethnicity, political ideology, etc.
It involves 2 basic rights:
1. Right of non-refoulement – right of the individual
seeking asylum not to be brought back to the
territorial state pending an administrative
inquiry as to his eligibility for refugee status; and
2. Right not to be prosecuted when the individual
seeking asylum is granted refugee status.
CLASS NOTES
NUCLEAR TESTS CASE (NEW ZEALAND v.
FRANCE)
ICJ Reports 1974, p.457 (1974)
New Zealand instituted proceedings against France over the
latter’s atmospheric nuclear tests in the South Pacific which
had entailed the release of radioactive matter into the
atmosphere. It sought interim measures of protection from
the ICJ which would bar France from conducting further
nuclear tests.
New  New Zealand was affected by radioactive
Zealand: fallout from the atmospheric tests, and
this constituted a violation of its rights
under international law.
France:  ICJ has no jurisdiction over the case;
France did not even appoint an agent to
represent it therein.
 Radioactive matter from the tests are
insignificant
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Court need not decide on the matter due to assurances
from the French Government that atmospheric nuclear
tests would end.
Court observed from statements of the New Zealand Prime
Minister that an assurance from France that atmospheric
testing is “finished for good” would bring the dispute to an
end.
French authorities have made a number of consistent public
statements in public concerning future tests:
 Statement of the French President that France would be
able to commence underground testing as soon as the
last round of atmospheric tests were completed, and
that he had made clear to his government that such
round would be the last;
 Statement by the French Ambassador to New Zealand,
that the 1974 atmospheric tests would be the last of its
kind;
 Statement by the French Minister of Defense that
underground testing would commence the following
year
These conveyed the message that France, following the
conclusion of the 1974 tests, would cease the conduct of
atmospheric nuclear tests.
Declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating
legal obligations. Nothing in the nature of a quid pro quo,
nor any subsequent acceptance, nor even any reaction from
other States is required for such declaration to take effect.
Form is not decisive. The intention of being bound is to be
ascertained by an interpretation of the act. The binding
character of the undertaking results from the terms of the
act and is based on good faith interested States are entitled
to require that the obligation be respected.
France, in conveying to the world its intention effectively to
terminate its atmospheric tests, was bound to assume that
other States might take note of these statements and rely
on their being effective. It is true that France has not
recognized that it is bound by any rule of international law
to terminate its tests, but this does not affect the legal
consequences of the statements in question.
Once the Court has found that a State has entered into a
commitment concerning its future conduct, it is not the
Court's function to contemplate that it will not comply with
it. However, if the basis of the Judgment were to be
affected, the Applicant could request an examination of the
situation in accordance with the provisions of the Statute.
(See “Request For An Examination of the Situation in
accordance with Par. 63 of the Court’s Judgment Of 20
December 1974 in the Nuclear Tests [New Zealand v.
France] Case”, infra., p. 11)
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PUBLIC INTERNATIONAL LAW A2015

cognizance of the same and are entitled to require that the

obligation thus created be respected.
NUCLEAR TESTS CASE (AUSTRALIA v. FRANCE)
ICJ Reports 1974, p.253 (1974)
Unilateral declarations from States are not sources of
international law; but they form a basis for the
(Note that this case contemplates a similar set of facts as in operation of estoppel.
the Nuclear Tests Case [New Zealand v. France], supra.) CLASS NOTES

The French Government had been carrying out atmospheric

tests of nuclear devices in the South Pacific, in the years REQUEST FOR AN EXAMINATION OF THE
1966, 1967, 1968, 1970, 1971 and 1972. Prior to the SITUATION IN ACCORDANCE WITH PAR. 63
initiation of the proceedings, Australia had already sent OF THE COURT’S JUDGMENT OF 20 DECEMBER
several Notes inviting the French Government to refrain 1974 IN THE NUCLEAR TESTS (NEW ZEALAND
from further atmospheric nuclear tests and to formally v. FRANCE) CASE
assure the Australian Government that no such tests will be ICJ Reports 1995, p.288 (1995)
held in the Pacific, but the latter only asserted the legality of
its conduct and gave no indication that it would cease from
conducting tests. Two decades after the 1974 judgment on the Nuclear Tests
Case (New Zealand v. France), France announced that it
would conduct a series of UNDERGROUND nuclear tests in
Australia  The tests have caused fallout of
two South Pacific islands. New Zealand thus filed this
measurable quantities of radioactive
request for an examination, pursuant to paragraph 63 of the
matter to be deposited on Australian
1974 judgment (see last paragraph of Nuclear Tests Case
territory.
[New Zealand v. France], supra, p. 10)
France:  ICJ has no jurisdiction over the case;
France did not even appoint an agent to
New  Scientific data today shows that
represent it therein.
Zealand: underground testing can also have
 Radioactive matter from the tests are
adverse effects, and thus be considered
insignificant
within the purview of the 1974 judgment;
and
Court need not decide on the matter due to assurances
 It is unlawful for France to conduct such
from the French Government that atmospheric nuclear
nuclear tests before it has undertaken an
tests would end.
Environmental Impact Assessment
according to accepted international
France had effectively assumed an obligation to cease
standards.
conducting atmospheric nuclear tests by way of unilateral
statements made by its government officials. The Court
The Request does not fall within the 1974 decision, which
appreciated the following statements:
applies only to atmospheric tests; it does not pertain to
 Statement from the French President, in part saying that
other forms of nuclear testing (i.e. underground testing).
France will be “in a position to move to the stage of
underground tests”, that “atmospheric tests soon to be
Since the basis of the 1974 Judgment pertains to nuclear
carried out will, in the normal course of events, be the
tests in the atmosphere, only upon resumption of
last of this type”, and that “I had myself made it clear
atmospheric tests will the “basis” of the Judgment be
that this round of atmospheric tests will be the last.”
deemed “affected”. Thus, the Court held that it cannot take
 Statements made by the French Minister of Defense in a
into consideration questions relating to underground
television interview and press conference where he
nuclear tests.
announced that the French Government had done its
best to ensure that the 1974 nuclear tests would be
The Court pointed out, however, that this Order is without
the last atmospheric tests and that it was ready to prejudice to the obligations of States to respect and protect
proceed with underground testing were considered. the natural environment, obligations to which both New
Zealand and France have in the present instance reaffirmed
Therefore, Australia’s objective could be deemed to have their commitment.
been met. When it is the intention of the state making a
declaration that it should become bound according to its Judge Weeramantry, dissenting:
terms, such intention confers on the declaration the
character of a legal obligation. Such unilateral declarations Through Par. 63, the ICJ in the 1974 judgment created a
would require no reply or subsequent acceptance to take procedure sui generis allowing New Zealand to reopen the
effect. Under the principle of good faith, States may take case, in the event that France fails to fulfill its unilateral
undertaking to cease the atmospheric nuclear tests. The

11
PUBLIC INTERNATIONAL LAW
issue during that time was focused only on atmospheric
tests because in 1974, those were the only type of nuclear
tests being undertaken by France. However, had the Court
the knowledge available today, it would not have viewed
New Zealand’s grievances as having come to an end in the
consequence of shifting the venue of the explosions (from
atmospheric to underground testing).
New Zealand’s complaint in 1973 was that damage was
caused by French nuclear explosions in the Pacific. New
Zealand's complaint today is the same. The cause is the
same, namely, French nuclear tests in the Pacific. The
damage is the same, namely, radioactive contamination.
The only difference is that the weapons are detonated
underground.
New Zealand had made out a prima facie case of danger
from French nuclear tests, on which it has shown that the
“basis” of the 1974 Judgment is now “affected”. This gave
New Zealand a right to request the examination of the
situation, and placed the Court under a duty to consider its
Request and interim measure, and also the applications for
permission to intervene of Australia, Samoa, Solomon
Islands, the Marshall Islands and the Federated States of
Micronesia.
Important principles of environmental law were stated in
this case:
 Inter-temporal Principle – the Court must apply
scientific knowledge now available and not limit itself
to what was known at the time the issue came about.
 Inter-generational rights – each generation is both a
custodian and a user of our common natural and
cultural patrimony. As custodians of this planet, we
have certain moral obligations to future generations
which can be transformed into legally enforceable
norms. Considering that the half-life of radioactive
by-products would last for thousands of years, it is the
responsibility of the people today to protect the
interest of the future generations.
 Precautionary principle – when there is a complaint
regarding environmental damage being committed
by another party, the proof or disproof likely lies with
the other party. Several
conventions/declarations had been entered into
using this principle, that environmental measures
must anticipate, prevent and attack the causes of
environmental degradation. Under the Bergen
Declaration, prior assessment and reporting of the
environmental impact of projects or programs of
states shall be undertaken by parties. This principle is
important because it should have prompted the ICJ
to decide this case and not postpone the examination
of the case presented by NZ until full scientific
evidence is available that can either support or refute
NZ’s contention.
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 Environmental Impact Assessment – an ancillary of
the precautionary principle which requires states to
assess the possible impact of a program to the
environment prior to its undertaking.
 Principle that damage must not be caused to other
nations – no nation is entitled by its own activities to
cause damage to the environment of any other
nation.
LEGALITY OF THE THREAT OR USE OF
NUCLEAR WEAPONS (ADVISORY OPINION)
ICJ Reports 1996, p.226 (1996)
WHO submitted a request to the ICJ for an advisory opinion.
The question was “in view of the health and environmental
effects, would the use of nuclear weapons by a State in war
or other armed conflict be a breach of its obligations under
international law including the WHO Constitution?”
Against Existence of a rule of international customary
Nuclear law which prohibits recourse to those
Weapons: weapons.
 Treaties which can be interpreted to
prohibit use of nuclear weapons (e.g.
genocide, right to life, environmental
protection);
 Consistent practice of non-utilization of
nuclear weapons by States since 1945;
 UN General Assembly resolutions that deal
with nuclear weapons and that affirm, with
consistent regularity, the illegality of
nuclear weapons.
There is no customary international law which authorizes
the threat or use of nuclear weapons.
Customary international law and treaty law do not contain
any specific prescription authorizing the threat or use of
nuclear weapons or any other weapon in general or in
certain circumstances, in particular those in the exercise of
legitimate self- defense.
However, neither is there customary international law
which provides a universal prohibition of the threat or use
of nuclear weapons.
As to the treaties. Although there are treaties which deal
exclusively with the acquisition, manufacture, possession
and deployment of nuclear weapons, the treaties do not
constitute such prohibition of the weapons themselves.
While these may foreshadow a future general prohibition of
the use and indicate an increasing awareness of the dangers
of such weapons, these do not amount to a prohibition on
the use or threat of use of the same.
As to the non-utilization of nuclear weapons. The
international community remains divided on whether the
non-recourse to use of nuclear weapons constitutes an
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PUBLIC INTERNATIONAL LAW
expression of opinion juris. While it has been argued that
non-use since 1945 (Hiroshima and Nagasaki bombings)
was indicative of aversion to nuclear weapon utilization,
others countered that the role of such weapons in the
“policy of nuclear deterrence” (i.e. mutually assured
destruction) constituted a valid use. As such, the Court
ruled that there is no such opinion juris expression.
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
circumstances, provide evidence important for establishing
the existence of a rule or the emergence of an 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.
In the instant case, the General Assembly resolutions
presented were adopted with substantial numbers of
negative votes and abstentions. Although these are
indicative of a deep concern over use of nuclear weapons,
they still fall short of establishing the existence of an opinion
juris on the illegality of the use of such weapons.
THE PAQUETE HABANA
175 US 677 (1900)
Two Spanish fishing vessels from Cuba – the “Paquete
Habana” and the “Lola” – and their cargoes were captured
by US gunboats during the Spanish-American War and
condemned as a prize of war. A final decree of
condemnation and sale was entered wherein the vessels
were considered as not exempt from seizure
The fishing vessels are not subject to capture by the US
armed vessels.
By ancient usage among civilized nations coast-fishing
vessels pursuing their vocation of catching and bringing in
fresh fish have been recognized as exempt, with their
cargoes and crews, from capture as prize of war. The
seizures were therefore unlawful and without probable
cause.
This ancient usage has gradually ripened into a rule of
international law.
Evidence why there is customary international law:
 King Henry IV’s orders to his admirals in 1403
exempting coastal fishers from capture
 Treaty of Calais (between UK and France, which
excluded fishing vessels from seizure during war)
 US-Prussia Treaty (against seizure of fishing
vessels)
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 Various legal writings and treatises of legal experts
and luminaries which provide for the exemption of
fishing/commercial vessels
Customary international norms are self-executory;
there need not be any treaty or agreement to bring
them into force.
CLASS NOTES
CASE CONCERNING RIGHT OF PASSAGE OVER
INDIAN TERRITORY (PORTUGAL v. INDIA)
ICJ Reports 1960, p.6 (1960)
India placed some obstacles through the Indian Peninsula
which prevented the right of passage of Portugal to its
enclave territories – “Dadra” and “Nagar Haveli”. The
representative of Portugal asserted that their territory
surrounded by the Indian Peninsula, and that India allegedly
refused entry to certain Portuguese individuals by refusing
to grant their visas. According to Portugal, this deprived
them of their right to exercise sovereignty over their
territories.
Portugal:  The Treaty of Poona of 1779 issued by the
Maratha ruler (Indian) granted it
sovereignty over the enclaves and with
such right of passage;
 A right of passage exists through the Indian
Peninsula in their favor;
 India has a correlative obligation to respect
such right.
India:  The Treaty of Poona was not validly entered
into and it never became a treaty with
respect to them;
 No international law conferring the right of
passage and there is also no correlative
obligation on its part to respect it;
 No established local custom between them.
Portugal has a right of passage through the Indian
Peninsula.
There was a constant and uniform practice which dates
back to the British and post-British periods:
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PUBLIC INTERNATIONAL LAW
 Treaty of 1779 – The Marathas (Indians) themselves
regarded the treaty as valid and binding. The treaty
was also frequently referred to in subsequent
formal documents by the Marathas.
 The British, as successors of the Marathas,
recognized Portuguese sovereignty over the enclave
territories and never questioned it. By implication it
was subsequently recognized by India. As a
consequence the villages comprised in the Maratha
grant acquired the character of Portuguese enclaves
within Indian territory.
However, with regard to armed forces, police and arms and
ammunitions, there is no such right of passage.
 During the British period up to 1878 passage of
armed forces and armed police between British and
Portuguese possessions was regulated on a basis of
reciprocity.
 Article XVIII of the Treaty of Commerce and
Extradition of 26 December 1878 between Great
Britain and Portugal laid down that the armed forces
of the two Governments should not enter the Indian
dominions of the other, except for the purposes
specified in former Treaties, or for the rendering of
mutual assistance as provided for in the Treaty
itself, or in consequence of a formal request made
by the Party desiring such entry.
Constant and uniform practice between States is also
a source of international law. There is no need to
resort to general international custom or to general
principles of law in disposing of such cases when
there is an established between the parties.
CLASS NOTES
GENERAL PRINCIPLES OF LAW
Estoppel
Estoppel and acquiescence are general principles of law
which can be a basis of international law. The requisites of
this principle are the same as those provided for by the Civil
Code, namely:
1) Act or representation;
2) Reliance on the act; and
3) Damage to other party stemming from such
reliance. (Civil Code, Art. 1437)
CASE CONCERNING THE TEMPLE OF PREAH
VIHEAR (CAMBODIA v. THAILAND)
ICJ Reports 1962, p.6 (1962)
The Temple of Preah Vihear is an ancient Hindu Temple
subject to a lengthy dispute on ownership between
Cambodia and Thailand. Both states stationed troops to
enforce their claim. Cambodia claims that the territorial
sovereignty over Preah Vihear belongs to Cambodia, and
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Thailand is under an obligation to withdraw the
detachments of armed forces it has stationed therein.
Thailand, however, counters that that the temple is in Thai
territory.
Cambodia:  Maps printed and published by a French
cartographical firm;
 Publication and communication of 11
maps to the Siamese government;
 The map traced a frontier line purporting
to be the outcome of the work of
delimitation of the Mixed Commission. It
showed that the whole Temple area is on
the Cambodian side;
 There was an acknowledgement by
conduct by Thai authorities because they
never questioned or disagreed about the
maps within a reasonable time. Therefore,
they must be deemed to have acquiesced;
 When the Siamese authorities received
the maps, the Minister of Interior thanked
the French Minister of Bangkok for the
maps and asked for another 15 copies for
the transmission to Siamese governors;
 The Siamese authorities did not raise any
query about the map as between
themselves and France or Cambodia, or
expressly repudiate it as such, until the
1958 negotiations in Bangkok, when the
question of Preah Vihear came under
discussion between Thailand and
Cambodia.
Thailand:  At all material times, Thailand has
exercised full sovereignty in the area of
the Temple;
 The general nature of the area allows
access from Thailand to the Temple,
whereas access from Cambodia involves
the scaling of a high cliff from the
Cambodian plain.
The Temple is situated in territory under the sovereignty
of Cambodia. Therefore, Thailand is under an obligation to
withdraw any military or police forces stationed at the
Temple.
From the foregoing facts, it was concluded that Thailand
had accepted the map. Thailand was precluded from
asserting that she had not accepted the map since for 50
years she did not raise any question or disagreement with
the delimitation of the frontiers.
The signing of the map by Thai officials is a positive
act which constituted estoppel.
CLASS NOTES
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PUBLIC INTERNATIONAL LAW
Indirect Evidence Leading to one Conclusion;
Totality of Evidence
Remedial principles such as the allowance for the admission
of circumstantial or indirect evidence can be a basis for
resolving factual disputes. Indirect evidence may be given
probative value especially when it is based on a series of
facts, and if linked together will logically lead to a single
conclusion.
THE CORFU CHANNEL CASE
ICJ Reports 1949, p. 4 (1949)
(First Incident) Albanian ships fired at Royal Navy Ships
while the latter was crossing the Corfu Channel after they
had conducted an inspection of the area. (Second Incident)
Subsequently, when the Royal Navy Ships crossed again,
they weren’t fired at but they struck mines. (Third incident)
The UK swept the Albanian territorial waters for mines
without Albanian consent and over its clear objection.
United  Albanian government intentionally laid
Kingdom: down the mines in the Corfu Channel;
 Albania and Yugoslavia worked together in
laying the new mines after the channel was
already swept by the UK ships;
 Regardless of who put the mines, the
Albanian government knew of this act.
Albania:  Albania did not lay the mines but it was the
Yugoslavian minelayers who did so without
their knowledge;
 The acts of the Royal Navy were violative of
Albanian sovereignty
Albania was liable for damages for the First and Second
incidents. UK’s mine-clearing operation (third incident)
was illegal.
The laying of the minefield which caused the explosions
could not have been accomplished without the knowledge
of Albania.
However, since Albania has exclusive control over its
waters, UK as the victim of breach, would be unable to
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furnish direct proof of facts giving rise to Albania’s
responsibility. In this case, the ICJ considered indirect proof
which leads to the sole conclusion that Albania had
knowledge.
The following circumstances show a totality of evidence to
support the conclusion that there was a breach of
international law:
 Albania constantly kept a close watch over the waters
of the North Corfu Channel as evidenced by the
Albanian Delegate in the Security Council and the
diplomatic notes of the Albanian government
concerning the passage of foreign ships through its
territorial waters;
 Albania never notified anyone about the mines in its
waters. It can be concluded that they wanted to keep
the mines in the channel a secret; and
 Albania had lookouts in different locations which
were strategic places to watch the channel. The
lookouts would have seen whoever laid the mines in
the channel.
Therefore, Albania had the obligation to warn the UK ships
regarding the existence of mines. The obligation is based on
the general principles of:
 Elementary considerations of humanity
 Freedom of maritime communication
 Every State’s obligation not to allow knowingly its
territory to be used for acts contrary to the rights of
other States
(For a discussion on the strait/right of passage aspect of
the case, refer to p. 48)
SUBSTANTIVE PRINCIPLES OF LAW
Reparation
It is an indispensable consequence of the failure of a State
to conform to its obligations. It “must, as far as possible,
wipe-out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have
existed if the act has not been committed.” (The Factory at
Chorzow Case)
The reparation of a wrong may consist in:
1. Restoration to status quo ante.
2. Compensation. – If restoration is not possible, the
remedy is compensation to such amount of indemnity
as to necessarily wipe out all the effects of the illegal
act.
THE FACTORY AT CHORZOW (GERMANY v.
POLAND)
1928 PCIJ (ser. A) No. 17 (1928)
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PUBLIC INTERNATIONAL LAW
The Government of German Reich submitted to the
Permanent Court of International Justice a suit for
reparation against the Polish Government for the Polish
government’s taking possession of the nitrate factory in
Chorzow, Poland (constructed by Germany), resulting to
damage of 2 companies controlled by Germans. It was
alleged that the taking was in violation of Article 6 of the
Geneva Convention.
Poland violated the Geneva Convention by taking the
factory. Therefore, Poland is obliged to pay the German
Reich as reparation a compensation for the damage
sustained by the 2 companies.
Reparation is the corollary of the violation of the obligations
resulting from an engagement between States. In
determining reparation, the following must be considered:
a. Existence of the obligation to make reparation;
b. Existence of the damage which must serve as the
basis for the amount of the indemnity;
c. Extent of the damage.
The essential principle in determining compensation for an
act contrary to international law:
“Reparation must wipe out all the consequences,
as far as possible, of the illegal act and re-
establish the situation which would, in all
probability, have existed if the act had not been
committed.”
Since the seizure of the factory and the undertaking therein
is prohibited by the Geneva Convention, the 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 compensation for the loss
sustained as a result of the seizure and payment of
indemnity is incumbent upon Poland.
Domestic Corporations are Separate Entities from
their Respective States
CASE CONCERNING THE BARCELONA
TRACTION, LIGHT AND POWER COMPANY,
LIMITED (BELGIUM v. SPAIN)
ICJ Reports 1970, p.3 (1970)
Barcelona Traction and its subsidiaries are incorporated in
Canada and Spain. BT’s share is largely held by Belgian
nationals. After the Spanish Civil War, the Spanish
government refused the authorization for the transfer of
foreign currency necessary for the servicing of bonds issued
by BT. BT incurred debt for the payment of interest on the
bonds and subsequently, it was declared bankrupt. Belgium
filed an Application with the ICJ.
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Belgium:  On behalf of natural and juristic persons
alleged to be Belgian nationals and
shareholders in BT, it is entitled to reparation
for damage caused to these persons by the
conduct, which is contrary to international
law, of the various organs of
Spain towards BT.
Spain:  Belgium does not have jus standi.
Belgium did not have jus standi to intervene or make a
judicial claim on behalf of Belgian interests in a Canadian
Company.
Although a State can make a claim when investments by its
nationals abroad (such investments being part of a State’s
national economic resources) were prejudicially affected in
violation of the right of the State itself to have its nationals
enjoy a certain treatment, such right could only result from
a treaty or special agreement. There is no instrument of
such kind which was in force between Belgium and Spain.
A corporation enjoys a separate personality from its
shareholders and from the State in which it is
organized.
CLASS NOTES
Principle of Acquired or Vested Rights
The principle of respect for acquired rights is one of the
fundamental principles of both public international law and
municipal law of most civilized States.
SAUDI ARABIA v. ARABIAN AMERICAN OIL
COMPANY (ARAMCO)
27 ILR 117
The Government of the State of Saudi Arabia made a
concession agreement with the Arabian American Oil
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
company (Saudi Arabian Maritime Tankers) which gave the
latter a 30-year right of priority for the transport of Saudi
Arabian oil. An issue therefore arose regarding those
provisions and the agreement between Aramco, which was
previously given the
In its capacity as first concessionaire, Aramco enjoys
exclusive rights which have the character of acquired or '
vested ' rights and which cannot be taken away from it by
the Government by means of a contract concluded with a
second concessionaire, even if that contract were equal to
its own contract from a legal point of view. The principle of
respect for acquired rights is one of the fundamental
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PUBLIC INTERNATIONAL LAW
principles both of public international law and of the
municipal law of most civilized States. The taking, therefore,
must have just, adequate and prompt compensation
Distinction between a franchise and concession
agreement: A franchise for the extraction of wealth is
imbued with public interest. A concession agreement,
however, involves no public service as there is no
public end-user.
CLASS NOTES
Principle of “Nullem Crimen, Nulla Poena Sine
Lege”
There is no crime when there is no law punishing it.
PROSECUTOR v. TADIĆ
ICTY Judgment of 2 October 1995 (1995)
Dusko Tadid [tah-dich] was the first individual to be tried by
the International Criminal Tribunal for the Former
Yugoslavia (ICTY). He was tried for war crimes and was
accused of committing atrocities at the Serb-run Omarska
concentration camp in Bosnia-Herzegovina in 1992. Tadid
challenged the jurisdiction of the International Tribunal.
Tadid claims that to be duly established by law, the
International Tribunal should have been created either by
treaty, the consensual act of nations, or by amendment of
the Charter of the United Nations, not by resolution of the
Security Council.
Tadid:  To be a duly established tribunal which could
try him, the International Tribunal should have
been created either by treaty, the consensual
act of nations, or by amendment of the Charter
of the United Nations, not by
resolution of the Security Council.
The International Tribunal has jurisdiction over the acts of
Tadid. Article 2 of the Statute provides that:
“International Tribunal shall have the power to
prosecute persons committing or ordering to be
committed grave breaches of the Geneva
Conventions of 12 August 1949”,
and there follows a list of the specific crimes proscribed.
Geneva Conventions are a part of customary international
law, and as such their application in the present case does
not violate the principle of nullum crimen sine lege.
It would be sufficient to prove that the crime was
committed in the course of or as part of the hostilities in, or
occupation of, an area controlled by one of the parties. It is
not, however, necessary to show that armed conflict was
occurring at the exact time and place of the
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proscribed acts alleged to have occurred, nor is it necessary
that the crime alleged takes place during combat, that it be
part of a policy or of a practice officially endorsed or
tolerated by one of the parties to the conflict, or that the
act be in actual furtherance of a policy associated with the
conduct of war or in the actual interest of a party to the
conflict; the obligations of individuals under international
humanitarian law are independent and apply without
prejudice to any questions of the responsibility of States
under international law.
NATIONALIZATION CASES
TEXACO v. LIBYA
53 ILR 389 (1978)
Deeds of Concession were concluded between the Libyan
Government and 2 American companies. A Decree of
Nationalization nationalized 51% of the properties, rights
and assets of the companies relating to the Deeds of
Concession.
Amoseas, a company governed by foreign law, which was
formed jointly by the Companies to be their operating entity
in Libya, was to continue to carry out its activities for the
account of the Companies to the extent of 49%, and for the
account of the Libyan National Oil Company (N.O.C.), to the
extent of 51%. The Nationalization Decree converted
Amoseas into a non-profit company, the assets of which
were completely owned by N.O.C. Amoseas lost its name
and was renamed. The Companies notified the Libyan
Government that recourse would be taken to arbitration by
virtue of clause 28 of the Deeds of Concession.
The dispute, relating to nationalization, should be
resolved in concurrence with the principles of
international law and not to be based solely on the law of
the nationalizing state.
When contractual relations is governed by international law
between a State and a foreign private party means that for
the purposes of interpretation and performance of the
contract, it should be recognized that a private contracting
party has specific international capacities. Considering that
some contracts may be governed both by municipal law and
by international law, the arbitrator held that the choice of
law clause referred to the principles of Libyan law rather
than to the rules of Libyan law.
The application of the principles of Libyan law does not have
the effect of ruling out the application of the principles of
international law. It simply requires the combination of the
two in verifying the conformity of the first with the second.
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PUBLIC INTERNATIONAL LAW
The arbitrator ruled that he would refer on the one hand to
the principle of the binding force of contracts recognized by
Libyan law, and on the other to the principle of pacta sunt
servanda (i.e. agreements must be kept) which is a general
principle of law of international law. The principles of Libyan
law were in conformity with international law and the
Deeds of Concession in dispute had a binding force.
Also, the Resolutions of the UN General Assembly have
binding effect in resolving international disputes. In
determining the legal validity of the resolutions, the voting
patterns and conditions are considered:
 Resolution No. 1803: On the right of States to
nationalize but always in accordance with
international law
o Voting Pattern: 87 For, 2 Against, 12 Abstain
o Supported by many states of the Third World and
several Western developed countries with market
economies, including the most important US.
o Hence, all geographical areas and all economic
systems were represented.
 Resolution No. 3171: No recourse to international law;
exclusive and unlimited competence on the legislation
and courts of the host country.
o Voting Pattern: 86 For, 11 Against, 28 Abstain
o Not consented to by the most important Western
countries and caused a number of developing
countries to abstain.
BRITISH PETROLEUM v. LIBYA
53 ILR 297 (1978)
British Petroleum had a contract with Libya to extract,
process and export oil. Libya passed a Nationalization Law
which restored ownership of all properties, rights and assets
to the nation and transferred them to the Arabian Gulf
Exploration Company. BP protested the
nationalization.
BP: Cited Clause 28 of their Agreement which
provides that:
 The applicable law in resolving disputes
between Libya and BP would be Libyan
principles of law common to the principles of
international law;
 If there are no common principles, general
principles of law will apply;
 General principles of law will be preferred
over Libyan principles of law.
When a State breaches a concession agreement through
sovereign power in the form of nationalization, the
concessionaire does not have the right to ask for specific
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performance or restitution in integrum. Its only remedy is
an action for damages.
States, because of their sovereignty, have the power
to expropriate. The only exception to this rule is if the
taking was down without prompt, adequate and just
compensation.
CLASS NOTES
INTERNATIONAL TREATIES
SALONGA v. EXECUTIVE SECRETARY
GR No. 176051 (2009)
Daniel Smith was a member of the US Armed Forces who was
charged with rape against Suzette Nicolas. Pursuant to the
Visiting Forces Agreement, US was granted custody of Smith
pending the proceedings. RTC found Smith guilty. Pursuant
to the VFA, he shall serve his sentence in a facility that shall
be agreed upon by the Philippines and US authorities. The
Romulo-Kenney agreement was entered into which
provided that Smith will be detained at the 1st floor, Rowe
(JUSMAG) Building, US Embassy. The Philippine police & jail
authorities shall have access to the place of detention in
order to ensure the compliance of the US with the terms of
the VFA. Therefore, Smith was taken out of the Makati jail by
Philippine law enforcement agents and brought to the US
Embassy. The VFA is being assailed for being void and
unconstitutional.
The VFA is constitutional.
In Bayan vs. Zamora, the SC upheld the constitutionality of
the VFA stating that the VFA was duly concurred in by the
Philippine senate and has been recognized as a treaty by the
US. Though the VFA was not submitted for advice and
consent of the US Senate, it is still a binding international
agreement or treaty recognized by the US because:
 Only policymaking agreements are submitted to the US
Senate;
 Those that carry out or further implement
policymaking agreements are submitted to Congress
under the provisions of Case-Zablocki Act. Submission
of this kind of agreement to the US Senate is not
necessary;
 The RP-US Military Defense Treaty is the policymaking
agreement, while the VFA is its implementing
agreement. The RP-US Military Defense Treaty has
been ratified & concurred by both Philippine & US
senates.
The VFA is different from Medellin vs. Texas because in
Medellin vs. Texas, the US SC held that treaties entered into
by the US are not automatically part of their domestic law
unless these treaties are self-executing or there is an
implementing legislation to make them enforceable.
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PUBLIC INTERNATIONAL LAW A2015

 The terms of the agreement must be couched in such a

way that it reveals the intention for its provisions to be
Comparing the VFA with the Vienna Convention on Consular
self-executory; or
Relations & the Avena decision of the International Court of
 Congress must enact implementing legislation.
Justice (which is subject matter of the Medellin decision),
the VFA is (1) self- executing agreement because the parties
In the instant case, while Avena constitutes an international
intend its provisions to be enforceable and (2) it is covered
law obligation on the part of the United States, it does not
by implementing legislation which is the Case-Zablocki Act.
help Medellin because not all international law obligations
These two characteristics are absent in the subject matter
automatically constitute binding federal law. The Vienna
of the Medellin decision.
Convention on Consular Affairs which Avena seeks to
enforce does not have automatic domestic legal effect, as
its terms were not self- executory, and neither is there
MEDELLIN v. TEXAS implementing legislation passed by Congress.
552 US 491 (2008)

Jose Medellin is a Mexican national who was convicted and

sentenced to death for participating in the gang rape and
murder of two teenage girls in Houston.

The International Court of Justice in the Case Concerning

Avena and Other Mexican Nationals held that the United
States had violated the Vienna Convention rights of 51
Mexican nationals (including Medellin) and that their state-
court convictions must be reconsidered, regardless of any
forfeiture of the right to raise the Vienna Convention claims
because of a failure to follow state rules governing criminal
convictions.

Medellin:  The state had violated his rights under

the Vienna Convention on Consular
Affairs, to which the United States is a
party. Article 36 of the Vienna
Convention gives any foreign national
detained for a crime the right to contact
his consulate;
 The Vienna Convention granted him an
individual right that state courts must
respect;
 There is a memorandum from the U.S.
President that instructed state courts to
comply with the ICJ's rulings by rehearing
the cases;
 The Constitution gives the President
broad power to ensure that treaties are
enforced, and that this power extends to
the treatment of treaties in state
court proceedings.

The ICJ judgment is not automatically enforceable

domestic law.

While an international treaty may constitute an

international commitment, it is not binding domestic law
unless Congress has enacted statutes implementing it or
unless the treaty itself is “self-executing”.

In order for a treaty or binding international obligation to

have domestic effect:

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PUBLIC INTERNATIONAL LAW
ACTORS IN
INTERNATIONAL LAW
An actor of international law is an entity of a type
recognized by customary law as:
1. capable of possessing rights and duties;
2. capable of bringing international claims; and
3. Having these capacities conferred upon it.
(Brownlie, Chapter 3)
If an entity is not a subject of international law, it may still
have legal personality of a very restricted kind depending
on the agreement or acquiescence of recognized legal
persons. (Magallona, 2005)
There are now many subjects because recognition and
acquiescence may sustain an entity which is anomalous,
and yet has a web of legal relations on the international
plane.
ESTABLISHED LEGAL PERSONS
States
They are the repositories of legitimated authority over
peoples and territories. (infra.)
Political Entities Legally Proximate to States
This refers to political settlements (not sovereign states)
both in multilateral and bilateral treaties. They possess
certain autonomy, fixed territory and population, and some
legal capacities on the international plane. They are like
states but politically such entities are not sovereign states.
Example: former Free City of Danzig. – It had
international personality but it was placed under the
protectorate of Poland.
Condominium
This refers to a joint exercise of state power within a
particular territory by means of an autonomous local
administration. However, the local administration can only
act as an agency of the states participating in the
condominium.
Example: Nauru. – A tripartite condominium mandate
territory administered by Australia, New Zealand and
United Kingdom from 1923 to 1942.
Internationalized Territories
This is applied in cases where:
 A special status was created by multilateral treaty
and protected by an international organization; or
where
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 Exclusive administration of a territory is done by
an international organization or an organ thereof.
Example: United Nations Transitional Administration in
East Timor (UNTAET). – An entity established by the UN
Security Council which administered present-day East
Timor prior to independence.
International Organizations
These organizations are required to comply with certain
conditions so that they may acquire legal personality on an
international plane, and not merely as a legal person within
a particular system of national law. (infra.)
Example: the United Nations.
Agencies of States
These agents may have the appearance of enjoying
separate personality. The components of federal states
probably have treaty-making capacity, where this is
provided for internally, as agents of the federal state. By
agreement, states may create joint agencies with delegated
powers of a supervisory, rule-making and even judicial
nature.
Agencies of Organizations
These are subsidiary organs of international organizations.
They may be created by the constituent treaty or the
exercise of powers conferred by the constituent treaty.
Such organs have a significant amount of independence and
are invested with considerable administrative, rule- making
and judicial powers without themselves acquiring a distinct
legal personality.
Example: World Health Organization. – A subsidiary
organ of the United Nations.
SPECIAL TYPES OF PERSONALITY
Non-Self-Governing Peoples
They have a special type of legal personality, and it depends
on the principle of self-determination. The claim to
represent such non-self-governing peoples may be given
recognition by individual state action or collectively in the
form of UN General Assembly resolutions.
State in statu nascendi
It is a political entity, which aspires for political
independence and recognition of its status of statehood,
while statehood has yet to be realized. This assumes
continuity after statehood has been attained, and gives
effect to legal acts occurring before independence.
Example: Palestinian Liberation Organization. – An
organization created for the purpose of creating an
independent state in Palestine. Many authors are of
the opinion that in the event Palestinian statehood is
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PUBLIC INTERNATIONAL LAW
realized, the acts of the PLO can be considered acts of
a state in statu nascendi.
Legal Constructions
A state's legal order may be projected on the plane of time
for certain purposes although politically it has ceased to
exist.
Belligerent and Insurgent Communities
This refers to de facto authorities in control of a specific
territory. Parastatal entities are recognized as possessing a
definite if limited form of international responsibility
attributed with treaty-making capacity.
Entities sui generis
These are entities which maintain some sort of existence on
the international legal plane in spite of their anomalous
character. This anomalous character may be negated by
acquiescence, recognition and the incidence of voluntary
bilateral relations, provided no rule of jus cogens is broken.
Example: “The Sovereignty of the Holy See.” – its
personality seems to rest partly on its approximation
to a state in function, and partly on its approximation
to a state in function, and partly on acquiescence and
recognition by existing legal person, as evidenced by
the fact that a number of states have diplomatic
relation with it and it has been a party to multilateral
conventions.
Example: Exile governments. – they are also accorded
considerable powers within the territory of most
states; the legal status of such entities is consequential
on the legal condition of the community it claims to
represent, which may be a state, belligerent
community or non-self-governing peoples.
Example: Taiwan. – It is a territory the title of which is
undetermined, inhabited and has an independent
administration. It is treated as having a modified
personality, approximating that of a state.
Individuals
There is no general rule that individuals cannot be a subject
of international law. However, this implies the existence of
certain capacities. (infra., p. 141) (Brownlie, Chapter 3)
CASE CONCERNING THE BARCELONA
TRACTION, LIGHT AND POWER COMPANY,
LIMITED (BELGIUM v. SPAIN)
ICJ Reports 1970, p.3 (1970), supra.
Barcelona Traction is a holding company incorporated in
Toronto, Canada for the purpose of creating and developing
electric power production and distribution
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systems in Spain. It later formed subsidiary companies
incorporated in either in Canada or Spain. After the First
World War, majority of Barcelona Traction’s share capital
were held by Belgian nationals. Barcelona Traction issued
several sterling bonds however the servicing of these bonds
were suspended because of the Spanish Civil War. When the
war ended, Spanish authorities still refused to authorize the
transfer of foreign currency necessary to resume the
servicing of the bonds. The company was eventually
declared bankrupt.
Belgium then initiated an application before the ICJ against
the Spanish government for damages allegedly caused by
the latter to the Belgian shareholders of Barcelona Traction.
Belgium: It has jus standi because injury was sustained
by Belgian nationals who had interests in the
company bankrupted by acts of Spain.
Spain: Belgian Government lacks the jus standi to
intervene or make a judicial claim on behalf of
Belgian interests in a Canadian company even
assuming that the Belgian character of those
interests was established.
Belgium did not have jus standi to sue in behalf of
Barcelona Traction’s Belgian shareholders.
The acts complained of did not affect any Belgian
naturalistic or juristic person but in fact concerned a juristic
entity registered in Canada. The Belgian interests in this
case were in the nature of shareholding interests.
Changes in the international arena have given birth to
municipal institutions that have transcended frontiers and
play an important role in international relations, which in
this case is the corporate entity. However, since corporate
entities are essentially created by States within their
domestic jurisdiction, municipal laws should be considered
in resolving disputes concerning them. Pertinent to this
case, municipal law places a firm distinction between the
rights of the company and those of the shareholder. Only
the company, which was endowed with legal personality,
could take action in respect of matters that were of a
corporate character. A wrong done to the company
frequently caused prejudice to its shareholders, but this did
not imply that both were entitled to claim compensation.
A State could make a claim when investments (which are
part of the State’s economic resources) made by its
nationals abroad were prejudicially affected in violation of
its right to have its nationals enjoy a certain treatment.
However, at present, this could only be enforced through a
treaty and it was not found that there was such an
instrument in force between Belgium and Spain.
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PUBLIC INTERNATIONAL LAW
REPARATION FOR INJURIES SUFFERED IN THE
SERVICE OF THE UNITED NATIONS (ADVISORY
OPINION)
ICJ Reports 1949, p. 174 (1949)
By virtue of a general assembly resolution, the UN asked the
ICJ to determine whether the UN can make arrangements
regarding reparations in behalf of its agents for injuries
suffered in connection with their duties. They also asked
WON they had the capacity to bring an international claim
against the responsible de jure or de facto government with
regards to obtaining said reparations for damages caused to
the UN itself, the victim, and the heirs of said victim.
The UN is an international person and has the capacity to
bring international claims.
The UN is an organization and as such, it is as an
international person subject to international law. It is
therefore capable of possessing international rights and
duties, including the capacity of maintaining its rights by
bringing international claims. Such claim can be based on
the breach of an international obligation on the part of the
member held responsible for such against the interests of
the UN itself, its administrative machine, its property and
assets, and the interests of which it is the guardian.
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
UN is deemed to have those powers which although not
expressly provided in the charter, is conferred upon it by
necessary implication as being essential in the performance
of its duties. In this case, in order to ensure the
independence of the agent, which in turn ensures the
independence of the UN itself, it is essential that the agent
in performing his duties need not have to rely on any other
protection other than that of the organization.
ICJ rejected the doctrine that only states are subjects
of international law.
CLASS NOTES
THE MAVROMMATIS PALESTINE CONCESSIONS
PCIJ, Ser. A, No. 2, (1924)
The Greek Republic filed a case before the ICJ alleging the
refusal of the Government of Palestine and the British
Government who holds the mandate over Palestine, to
recognize the rights acquired by Mavrommatis (a Greek
subject). Prior to the controversy, Mavrommatis concluded
contracts and agreements with the Ottoman authorities in
regard to concessions for certain public works to be
constructed in Palestine. The dispute was in the beginning
between a private person (Mavrommatis) and a State
(Britain).
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Mavrommatis failed to obtain satisfaction for his claim
through ordinary channels. Being a Greek subject, the
Republic of Greece took up Mavrommatis’ case and pursued
reparations in his behalf.
Greece: It is entitled to protect its subjects such as
Mavrommatis in this case, when they have
been injured by acts contrary to international
law by another state.
Britain: Greece had no standing in this case.
Greece had standing to bring the present claim in the
capacity of a sole claimant.
A State like Greece can take up the case of its subjects when
they are injured by acts contrary to international law
committed by another State, from who said subject had
been unable to obtain satisfaction through the ordinary
channels. This is founded on Greece’s right to ensure
respect for rules of international law, a right which in this
case appears to have been violated by Britain. It should
not be looked at not as a substitution between Greece and
its subject, but as assertion of its own rights as a State.
This will lead to the conclusion that Greece is the sole
claimant in this case. The court deemed as irrelevant
whether the dispute originated from a personal injury or
not.
CERTAIN EXPENSES OF THE UNITED NATIONS
(ARTICLE 17, PARAGRAPH 2, OF THE CHARTER)
(ADVISORY OPINION)
ICJ Reports 1962, p. 151 (1962)
The Acting Secretary-General of the UN wrote a letter to the
President of the ICJ requesting the latter to give an advisory
opinion on the following question:
“Do the expenditures authorized in General
Assembly resolutions relating to the UN
operations in the Congo undertaken in pursuance
of the Security Council resolutions and the
expenditures authorized in the General Assembly
resolutions relating to the operations of the UN
Emergency Force constitute ‘expenses of the
Organization’ within the meaning of Article 17,
paragraph 2, of the Charter of the United
Nations?“
Yes, they were expenses of the organization within the
meaning of the UN charter.
Article 17, paragraph 2 states:
“The expenses of the Organization shall be borne
by the Members as apportioned by the General
Assembly.”
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The aforementioned provision refers to "the expenses of
the Organization" without any further explicit definition of
such expenses and would thus lead to the interpretation
that “expenses” of any organization are the amounts paid
out to defray the costs of carrying out its purposes, in this
case, the political, economic, social, humanitarian and other
purposes of the UN pursuant to its Charter.
The test is to determine the relationship of the
expenditures to the purposes of the UN set forth in Art. 1 of
the Charter. The purposes may be summarized as:
1) goal of international peace and security;
2) friendly relations;
3) achievement of economic, social, cultural, and
humanitarian goals, and respect for human rights;
and
4) to be a center for harmonizing the actions of
nations in the attainment of these common ends.
When the Organization takes action which warrants the
assertion that it was appropriate for the fulfillment of one
of the stated purposes of the UN, the presumption is that
such action is not ultra vires to the Organization. In fact,
both national and international law contemplate cases in
which body corporate or politic may be bound by an ultra
vires act of its agent as to third parties.
In this case, the financial obligations incurred by the
Secretary-General of the General Assembly pursuant to
resolutions of the Security Council for the maintenance of
international peace and security (included in UN’s
purposes) must be presumed to, as in fact they did,
constitute “expenses of the Organization.”
States
A State is regarded as a subject of international law in that
it has “the capacity to be a bearer of rights and duties
under international law”.
It possesses objective or erga omnes personality, or that
which exists wherever rights and obligations of an entity
are established by general international law. (Magallona,
2005)
Primacy of States as Subjects of International Law
There is a position that states are the primary actors in
international law. This view holds that “the world is today
organized on the co-existence of States, and that
fundamental changes will take place only through State
action.” (Magallona, citing Friedmann, 2005)
Basic Criteria for Statehood
1933 Montevideo Convention on the Rights and
Duties of States, Article 1.
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The state as a person of international law should
possess the following qualifications:
a) a permanent population;
b) a defined territory;
c) government; and
d) capacity to enter into relations with the
other states.
The 1933 Montevideo Convention on the Rights and Duties
of States provides four qualifications which must be present
in order for an entity to be considered a State:
a) a permanent population;
b) a defined territory;
c) government; and
d) Capacity to enter into relations with the other
states.
Q: As to government as an element of the state:
Does it have to be functioning?
No, it does not. An example is Somalia. It is sufficient
that it is organized, such as a government in exile. Also,
if functioning would be required, the PH will cease to
be a state in case it is inundated by high tide.
State Succession
State succession occurs when one state replaces another
with respect to a particular territory, and thus involves a
permanent displacement of the sovereignty of one state
by the sovereign power of the successor state. (Magallona,
2005)
It also involves the “replacement of one state by another
in the responsibility for the international relations of the
territory.”
RECOGNITION
Recognition
It is the act by which another State acknowledges that the
political entity recognized possesses the attributes of
statehood.
Effect; Not an Element of Statehood
There are two theories on the nature and effect of
recognition:
1. Constructive School – maintains that it is the act
of recognition which constitutes or creates the
status of a State as a subject of law and thus gives
it legal personality. The international status of
any entity is to be determined by the will and
consent of already existing States.
2. Declaratory Theory - asserts that the recognition
merely confirms the acceptance by States of the
status of an entity as a State.
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Practice of States and opinion of publicists indicate that
the declaratory school is the preferred approach, the
prevailing view being that recognition is not an element
of statehood. (Magallona, 2005)
Q: Is recognition from other states necessary for
one’s statehood
No, this would be violative of the sovereign equality of
states as found in the UN Charter. Otherwise, there will
be a situation when affirmative action of other states
will allow them to assert dominance.
Recognition by other states is determinative, not
constitutive of statehood. While recognition is no
longer necessary for a state to exist as such, it is still
important because it signifies other states’
confidence in another. It also shows intention to have
diplomatic relations.
Functions
1. Determination of statehood
(While not a criteria, it may have evidential effect
before a tribunal in establishing presence of
statehood)
2. Condition for the establishment of diplomatic
relations and the conclusion of treaties
No Duty to Give Recognition
Recognition, as a public act of a state, is an optional and
political act. There is no legal duty for such state to give
another state recognition. (Brownlie, Chapter 4)
A. Territorial Sovereignty
Territory
It is that defined portion of the surface of the globe which
is subjected to the sovereignty of the state. (Magallona,
citing Oppenheim)
There are four types of regimes of territory in law:
1. Territorial Sovereignty
This extends over land territory, territorial sea,
the seabed and subsoil of the territorial sea.
Territory includes islands, islets, rocks and reeds.
2. Territory not subject to the sovereignty of any
state and has a status of its own.
3. Res nullius
Covers the same subject matter legally
susceptible to acquisition by states but not yet
placed under territorial sovereignty.
4. Res communis
Consist of high seas and the outer space which are
not capable of being placed under state
sovereignty. (Brownlie, Chapter 4)
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Modes of Acquiring Territorial Title
1. Occupation – not the mere discovery but effective
exercise of sovereignty over a territory which is
terra nullius (i.e. not under the sovereignty of
another state). Effective occupation means
“continued display of authority which involves
two elements: the intention and will to act as a
sovereign, and some actual exercise or display of
such authority (Eastern Greenland Case).
Animus occupandi must be demonstrated and
evidenced by some administrative or political acts
in relation to the territory in question and such act
must be under the title of sovereignty.
Territories inhabited by tribes or peoples having a
social and political organization are not regarded
as terra nullius, and hence may not be subject to
valid occupation. (Western Sahara Case)
2. Accession or Accretion – natural process of land
formation resulting in increase of territory.
3. Cession – mode of transfer of title to territory
from one state to another by way of treaty
whereby the ceding state renounces its title to
such territory. It is thus a bilateral mode of
acquisition, the other modes being unilateral. It 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.
4. Prescription – acquisition of sovereignty over a
territory through continuous and undisturbed
exercise of sovereignty over it during such period
as is necessary to create under the influence of
historical development the general conviction
that the present condition of things is in
conformity with international order.
Requisites:
a) Possession that must be exercised under
the title of sovereign.
b) Peaceful and uninterrupted possession.
c) Possession must also be public.
d) It must endure for a certain length of time.
The Vienna Convention and UN Charter now prohibit the
use of force or conquest as a mode of acquiring territorial
sovereignty. (Magallona, 2005)
Relation of State Sovereignty to the International
Independence and Equality of States
From the standpoint of the national legal order, state
sovereignty is the supreme legal authority in relation to
subjects within its territorial domain. This is the traditional
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PUBLIC INTERNATIONAL LAW
context referring to sovereignty as “absolute.” However, in
the international sphere, sovereignty realizes itself in the
existence of a large number of sovereignties, such that
there prevails in fact co-existence of sovereignties under
conditions of independence and equality.
The sovereignty of one state ends where the sovereignty of
another begins. That limitation is built into the nature of
state sovereignty under international law. To conceive it as
unlimited is to negate its existence in the context of the co-
existence of sovereignties, resulting in the negation of the
international community composed of juridically equal
states.
State Sovereignty as defined in International Law
It is the right to exercise in a definite portion of the globe
the functions of a State to the exclusion of another state.
According to the widely accepted opinion Of Judge Huber in
the Island of Las Palmas case, “Sovereignty in the relations
between states signifies independence. The development
of the national organization of States during the last few
centuries, as, as a corollary, the development of
international law, have established this principle of the
exclusive competence of the State in regard to its own
territory I such a way as to make it the point of departure in
settling most questions that concern international
relations.”
ISLANDS OF LAS PALMAS CASE (U.S. v.
NETHERLANDS)
2 RIAA 829 (1930)
Las Palmas is a single, isolated island in the middle of
Mindanao and East Indies (controlled by the Netherlands).
Both the United States and the Netherlands claim that the
island of Las Palmas should belong to their respective
territories. The matter was submitted to arbitration with
Swiss Max Huber as arbitrator.
United  The island was discovered by Spain as
States: confirmed by cartographers and authors.
 The Treaty of Munster to which both
Spain and Netherlands were parties
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placed the latter in estoppel because said
treaty kept Spain’s title over the area in
dispute intact.
 The Treaty of Paris wherein Spain ceded
the Philippines to the United States and
by virtue of which the latter became the
successor of Spain.
 It has constructive possession over Las
Palmas pursuant to the principle of
contiguity in that the island forms a
geographical part of the Philippines and
therefore is under the power exercising
sovereignty over the Philippines.
Netherlands:  Discovery by Spain, or any other method
of acquisition over the disputed territory,
has not been adequately proven.
 Assuming arguendo that Spain indeed
had title over Las Palmas, it has lost such
title thru acquiescence because it did not
exercise sovereignty over the disputed
territory.
 It has been represented by the East India
Company through which it possessed
and exercised sovereignty over Las
Palmas from 1648 onwards.
 Contracts of Suzerainty wherein it
established conventions with natives
(included collection of taxes, etc.) which
show Netherlands’ exercise of
sovereignty over the territories of the
native princes of the island.
Netherlands has a stronger claim over Las Palmas by virtue
of effective occupation.
Sovereignty signifies independence in the relations
between states and independence which, in turn, is the
right to exercise the functions of a state over one’s territory
to the exclusion of all others. In case of dispute as to who
should exercise sovereignty over a given territory, the test
is to determine whether there is acquisition of territory
coupled with continuous and peaceful display of
sovereignty. Using the critical period technique, the period
to consider in this case is that prior to the 1898 (Treaty of
Paris).
While Spain ceded its territory to the US by virtue of the
Treaty of Paris, it could not transfer to the latter rights that
it did not have. It was not proven that Spain indeed had
possession and exercised sovereignty over Las Palmas
therefore the US cannot claim Las Palmas as successor to
Spain. The fact that in the 16th century, international law
allowed for “seeing” without occupation as equivalent to
discovery, this should be subjected to the concept of
intertemporal law which provides that while the act that
creates a right is subjected to the law in force at the time it
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PUBLIC INTERNATIONAL LAW
arises, its continued existence must follow the conditions
required by the evolution of law. Therefore, said 16th
century international law is qualified by 19th century
international law which requires not only discovery but
also effective occupation. Spain’s discovery merely created
an inchoate title and without any external manifestation,
said title was not perfected.
US’ claim of contiguity was rejected, as this was inapplicable
in cases of territorial sovereignty because it is not precise
and could lead to arbitrary results. In the end,
this inchoate title cannot prevail over Netherlands’ open
and public display of sovereignty which is evidence of its
effective occupation over Las Palmas.
Critical Period. – It is a judicial technique in the use or
exclusion of evidence consisting of self-serving acts of
parties at a stage when it was evident that a dispute existed.
Regardless of subsequent events, the court will freeze the
period of the controversy to the date when the issue
because ripe for adjudication.
Intertemporal law. – Where different legal rules existed
over a period of time, both the rule at the creation of the
right and rule at time of its existence should be applied.
Discovery alone merely gives rise to a mere inchoate
right. Effective occupation must be proven.
US could have won the case if they had shown that at
that time there was no separation of church and
state. By showing that there were priests, civil
registrar, collection of tribunes, etc., they would have
been able to show Spanish occupation of the island.
Also, this case is disturbing because the US lost
something that they did not have. By December 1898,
Filipinos were already in control of the state.
CLASS NOTES
“LAS PALMAS ARBITRATION REVISTED”
by H. Harry Roque
CONTEXT
This is in context of the continued dispute between the
Philippines and Indonesia as to which territory Las Palmas
should belong to. In 2002, amidst negotiations between the
two states, Indonesia enacted a new Baselines Law wherein
it used Las Palmas as a basepoint in drawing its archipelagic
baselines. If the this new law was to be followed, the
Philippines will not only lose Las Palmas but also around
15,000 square miles of archipelagic and territorial waters
which are currently defined as Philippine territory under the
Treaty of Paris. Said law is contrary to Indonesia’s former
commitment to delimit the area in dispute only after
negotiations with the Philippines have concluded.
Accordingly, the Baselines Law was equivalent
A2015
to an official claim to the land and territorial waters of the
island. This renewed the controversy settled in the 1928 Las
Palmas Arbitration wherein the Netherlands was declared
to have superior title over the disputed territory.
REASONS WHY PHILIPPINES SHOULD CLAIM LAS PALMAS
According to the author, there are several reasons why the
Philippines should claim the area of Las Palmas. First, it is
very close to the strategic axis linking the Pacific and Indian
oceans. It will enable the Philippines, possibly in
cooperation with Indonesia, to establish archipelagic sea-
lanes and control, monitor and maintain surveillance of
sensitive maritime jurisdictions. Many population centers,
industrial zones and ports are accessible from that area.
Second, it is close to the critical spawning areas of
economically important fish like the yellow fin tuna. The
area has also been declared as a maritime eco-region by the
WWF because of its distinct and outstanding biodiversity.
Third, the area in dispute is also a “warm pool” of the
world’s oceans making it suitable for large scale ocean
terminal plants. The author also said that the
aforementioned reasons, plus the sheer amount of area
that the Philippines will lose, warrant a re-examination of
the 1928 Las Palmas Arbitration which is the root of
Indonesia’s claim to Las Palmas.
CRITICISMS TOWARD THE 1928 ARBITRATION
The author cited Jessup’s criticisms of the substantive and
procedural aspects of Huber’s arbitration. According to
Jessup, the use of Intertemporal Law is non-sequitur and is
without precedent. Jurisprudence abounds in
international law which respects the Principle of Acquired
Rights or applies the law at the time of the creation of a
right. Thus, a state’s title over territory cannot be
extinguished simply by virtue of the rise of a contemporary
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 determine
whether a change in the law has necessitated a
reacquisition. In Spain’s case, when it acquired Las Palmas
by virtue of discovery which was valid in 16th century
international law, it already acquired a right over said
territory regardless of the evolution underwent by
international law.
As to Huber’s ruling that US failed to show effective
occupation, Jessup criticized this using the Theory of
Constructive Possession which provides that the possession
of the whole is tantamount to the possession of the parts
of the whole. In occupying Mindanao, Spain also occupied
Las Palmas as part of the Philippine archipelago. Jessup also
criticized Huber’s rejection of the Principle of Contiguity
which is actually recognized in international law and has
been prominently practiced in 1928 (time of the arbitration)
especially in dealing with a
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desolate, uninhabited island. This was even used by the PCIJ

in deciding the Eastern Greenland case. Other authorities
like Lauterpacht and O’Connell join Jessup in criticizing the
arbitration and Netherlands’ claim to Las Palmas.

UNITED STATES’ STANDING TO ARBITRATE

The United States’ also did not have standing to arbitrate or
personality to advance a right in the 1928 Arbitration based
only on Spain’s 1898 cession of title to it. While acquiring
title through cession is a valid, the United States’ title is only
as good as its predecessor. In this case, Spain no longer had
title over the Philippines in December 1898 because the
Philippines was already independent as of June 12, 1898. It
already had all the elements of a state even before the
Treaty of Paris.

NON-TRANSFERRABILITY OF ARBITRAL AWARDS

The controversy arose when the government entered into
As a general rule of state succession, successor states are
Service Contract No. 38 with Shell, Chevron and PNOC for the
not bound by obligations entered into by its predecessor exploration, development, and production of petroleum
and they are at a complete liberty WON to undertake such
resources in the Camago-Malampaya Reservoir about 80
obligations since they are a completely new entity. The only km off the coast of Palawan in the West Philippine Sea.
exception to this would be obligations in relation to
Because of this project, there arose a dispute between the
territorial boundaries pursuant to a treaty. However, Las national government and the provincial government of
Palmas was awarded to the Netherlands by virtue of an
Palawan with regard to the sharing of the proceeds.
arbitration to which the Philippines was not a party to. It is
therefore not bound by Huber’s ruling. The Philippines has
Palawan claims that it is entitled to a 40% of the proceeds
also never acknowledge that it has automatically succeeded
pursuant to the Local Government Code. It also based its
the US is said arbitration. claim in the assertion that the Camago-Malampaya gas
fields are located within the territorial jurisdiction of
CONCLUSION
Palawan. However, according to the national government,
The author concluded by saying that even assuming that
the area in dispute is outside Palawan’s jurisdiction and
Indonesia’s title to Las Palmas is indisputable pursuant to
therefore it is only the national government which is entitled
the 1928 Arbitration, this does not justify the former’s use to the proceeds of the contract.
of said island in its 2002 Baselines Law as a base point for
drawing its archipelagic baselines. This is because
Pres. Arroyo later issued EO 683 which provided for a
Netherlands, as Indonesia’s predecessor-in-interest, never
Provisional Implementation Agreement (PIA) that would
alleged in the arbitration that Las Palmas formed part of the
allow 50% of the disputed 40% of the net government share
Indonesian archipelago. Therefore, Las Palmas should be
in the proceeds of SC 38 to be utilized for the immediate and
treated as an island independent of the Indonesian
effective implementation of the development projects for
archipelago if not an actual part of the Philippines.
the people of Palawan.
Concept of constructive occupation. – A State should Petitioners assail the constitutionality of said executive
not have to physically occupy every nook and cranny order. CA dismissed their petition so they appealed to the
of land in order to prove its occupation; this should SC.
also apply to archipelagos.
CLASS NOTES
Arguments raised in the pleadings:

TERRITORIAL BOUNDARIES OF THE PHILIPPINES ALREADY

ARIGO v. EXECUTIVE SECRETARY
(PETITIONERS’ PLEADING)
DEFINED BY LAW
RA 3046 of 1961, as amended by RA 5446 of 1968 MUST
GOVERN TERRITORIAL BOUNDARIES OF THE PHILIPPINES
The CA was wrong in dismissing their petition pursuant to
the “ongoing efforts of both the legislative and executive
departments to arrive at a common position in redefining
the country’s baseline” which should not be encroached
upon by judicial adjudication. Petitioners assert that the CA
itself has acknowledged that there is already an

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existing law defining the country’s territory (mentioned in

the heading) which is still good law and must therefore
govern the territorial boundaries of the state, not the LEGAL STATUS OF EASTERN GREENLAND
“efforts” being undertaken by the legislative and executive PCIJ Ser. A/B No. 53 (1933)
departments. Also, Article 1 of the 1987 Constitution is
another good law which already defines the metes and
bounds of our national territory.

IMPLICATION OF EO 683 ON PHILIPPINE CLAIMS UNDER

UNCLOS
Since Palawan is the strong and secure anchor on which the
Philippines claim to an Extended Continental Shelf
(extending up to 350 n.m. from the baseline) under UNCLOS
stands, EO 683, by saying that Camago- Malampaya is
outside Palawan’s jurisdiction, dismembers national
territory because it cuts away the Philippine claim to an ECS.
According to petitioners, the oil and gas in the area are not
found in the waters off Palawan but in the continental shelf
of Palawan. Accordingly, the delineation of the limits of the
country’s continental shelf will assure its sovereign rights
over the petroleum, natural gas, and other resources found
In June 10, 1931, Norway issued a Royal Resolution
in the area. An ECS means a much expanded claim to rich
declaring that it is taking possession of certain territory
natural resources in the region and a greater access to these
(Elrik Raudes Land) of Eastern Greenland. Denmark opposed
resources.
this and the matter as to who had titled over the area in
dispute was submitted to the ICJ.
PROJECT TO DELIMIT THE OUTER LIMITS OF THE PHILIPPINE
CONTINENTAL SHELF
Denmark: Effective occupation or the continuous and
Petitioner also mention the research efforts being
peaceful occupation of the area which has
conducted by various agencies (UP Law Center, NIGS, etc.)
existed for a long time before the dispute. The
to fortify the Philippine assertion to a right to an ECS in
evidence it presented are:
preparation for its claim before the UN. The project has
 Imposition of taxes;
identified that the Kalayaan Group of Islands, the Benham
 Settlements;
Rise, and the Scarborough Shoal are three areas where the
possible ECS exists. According to experts, the best way to  Taking over trade monopolies;
claim an ECS is to consider the Malampaya fields and the  Granting of concessions;
KIG or the Spratlys as a unified extension or a natural  Fixing of territorial waters by
prolongation of the continental shelf of Palawan. Notably, legislation;
the KIG area is very promising with respect to petroleum  Promulgation of laws of
and natural gas. administration;
 Building trading and research stations;
PHILIPPINE CLAIM TO KIG DEPENDENT ON THE CAMAGO-  Multilateral and bilateral treaties
MALAMPAYA AREA BEING PART OF PALAWAN’S entered wherein Norway recognized
CONTINENTAL SHELF Danish authority over the area;
According to petitioners, to say that the Camago-  Granting of permits to visitors;
Malampaya fields are not part of Palawan is to say that the  Ihlen Declaration (Norwegian Minister
Philippines does not have any claim to an ECS, or much less, of Foreign Affairs speaking in behalf of
to an “inner” continental shelf that is all of 200 n.m. his government) stating that Norway
extending seaward. In effect, it is to deny the existence of a would not make it difficult for Denmark
continental shelf appurtenant to Palawan, and such is also a to settle in Eastern
surrender of Philippine claims to sovereign rights over a Greenland
large region that Filipinos have long considered as belonging Norway: Eastern Greenland was terra nullius and it was
to Philippine national territory, including the KIG. This may the first to exercise sovereignty over said
result in the bargaining away the Filipino people’s rightful area. The evidence it presented are:
claim to the rich marine resources in the region, in  Expeditions;
contravention of the national interest in the integrity of the  Involvement in hunting and trading;
national territory as well as the people’s right to enjoy the  Continuous rejection of Denmark’s
benefits of the natural resources of the country. This is also claim;
violative of the Constitution.  Wire stations; and

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 Construction of cabins.
Denmark had a stronger claim than Norway.
A claim to sovereignty based upon continued display of
authority has two elements that must be shown to exist:
 Intention and will to act as a sovereign; and
 Some actual exercise or display of such authority.
Denmark has met these two requirements as proven by the
evidence it presented. Notably, before Norway issued its
1931 declaration, no other power disputed Danish
sovereignty over the area.
There was also not enough evidence to support Norway’s
position that Denmark lost sovereignty over the disputed
area by voluntary abandonment. While there was a period
wherein Denmark no longer had intercourse with
Greenland, the interest in the latter was eventually revived.
Norway’s claim that Denmark only possessed he western
coast of Denmark was also rejected. Denmark had
constructive possession over Greenland regardless of
Norway’s assertion that the former’s legislative and
administrative acts only concerned Danish colonies (which
were located on the western coast) because the word
“Greenland” in these acts should be given their ordinary
meaning as encompassing the whole of Greenland. Norway
failed to prove otherwise.
Norway has acquiesced and was in fact in estoppel with
regards to Denmark’s claim over Greenland. Prior to the
dispute, Norway’s government had on many occasions
recognized Denmark as the sovereign over Greenland. A
prime example of this is the Ihlen Declaration (mentioned
in the position of the parties above).
If the area is thinly populated or unsettled, little actual
exercise of sovereign rights is sufficient.
Although both sides were able to present evidence
establishing their sovereignty over the area, what won
it for Denmark was the estoppel or acquiescence in the
part of Norway because of the Ihlen Declaration.
Although acquiescence is not a means of acquiring
title, it is proof of a better claim.
Also, this case was decided five years after the Island
of Las Palmas case by the PCIJ still headed by Max
Huber. Interestingly, unlike in the Las Palmas
Arbitration, Huber applied the concept of
constructive occupation in this case.
CLASS NOTES
THE CASE OF THE S.S. “LOTUS”
PCIJ Ser. A No. 10(1927)
A2015
A collision occurred at the high seas between a French mail
steamer Lotus with and a Turkish collier Boz Kourt. The Boz
Court split in half and it eventually sank, resulting to the
death of 8 Turkish nationals. The officer on board Lotus was
the French Lt. Demons.
Lt. Demons was requested by Turkish authorities to go
ashore 3 days after the incident to give evidence regarding
the matter. He was then arrested by Turkish authorities
without notice to France to ensure his criminal prosecution
for manslaughter under Turkish law. He was convicted.
The French government eventually protested the actions of
the Turkish authorities and demanded the release of Lt.
Demons. Upon failure to settle the matter, they submitted
the issue to the PCIJ.
France: In case of breach of navigation regulations,
exclusive jurisdiction lies with the flag state
under whose flag the vessel sails. France also
invoked the Treaty of Lausanne which stated
that all questions regarding jurisdiction
between Turkey and other
contracting states must be governed by the
principles of international law.
Turkey: Claimed jurisdiction on the basis of Article 6
of its Penal Code which provides that any
foreigner who commits an offense abroad to
a prejudice of Turkey or a Turkish national
shall be punished in accordance with the
Turkish Penal Code provided that he is
arrested in Turkey.
Turkey did not act contrary to international law.
There is no principle of international law that prohibits
Turkey from exercising jurisdiction over Demons and that
there was no presumption of restriction against its acts.
The court rejected France’s contention that the territoriality
of criminal laws prohibits the exercise of one’s power
outside one’s territory without a permissive rule of
convention or international custom.
There is also no general prohibition on a state to extend the
application of their law outside of their territory. This is
because the territoriality of criminal law is not an absolute
principle of international law and by no means coincides
with territorial sovereignty. Furthermore,
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France is without basis in saying that international law

prohibits proceedings by a state as to offenses committed France:  Prohibition of fishing;
by foreigners based only on the nationality of the victim  Restriction of visits to Ecrehos;
because this is not the only criterion on which Turkey’s  Diplomatic exchanges;
jurisdiction is based. Notably, Turkey could also base its  Granting of concessions;
jurisdiction on the fact that the collision also affected  Building of lighthouses and buoying;
Turkey’s vessel.  Official visits by French officials;
 Erection of a house.
Even states which strictly apply the territoriality of criminal United  Jersey courts exercising criminal
laws concede that if one of the elements of an offense (most Kingdom: jurisdiction for nearly 100 years;
especially its effects) has taken place in their national
 Jersey law requiring holding of inquests on
territory, the crime is to be regarded as having been
corpses found in the area;
committed there despite the fact that the author of the
 Houses built in the area were assessed for
crime was in the territory of another state at the time of the
the levying of taxes;
commission of the act.
 Licensing of fishing boats;
The court also rejected the exclusive jurisdiction of the flag  Real estate contracts relating to property in
state in this case because such principle is not universally the area were registered in the public
registry of deeds;
accepted leaving the states a free hand.
 Jersey customs authorities established a
This case has already been overturned by the UNCLOS custom house for the purpose of a census.
in Article 97 [1], which provides for concurrent
jurisdiction of the flag state and the state United Kingdom has produced the more convincing proof
of the person’s nationality in such instances. of title.
CLASS NOTES
UK won because of “ordinary local administration”, and its
claim was able to establish the exercise of state function of
jurisdiction, administration, and legislation over the islands.
THEMATIC LIGHTHOUSES
As to the French claim that its installation of lighthouses,
Lighthouses are important with regard to claims of beacons and other navigational aids evinces sovereignty
sovereignty because their construction and over the island groups, the court held that “such acts can
maintenance is a discharge of a state obligation to hardly be considered as sufficient evidence of the intention
ensure safety in the seas. of that Government to act as sovereign over the islets; nor
CLASS NOTES are those acts of such a character that they can be
considered as involving a manifestation of State authority in
respect of the islets.”
THE MINQUIERS AND ECREHOS CASE (FRANCE
v. UNITED KINGDOM)
ICJ Reports 1953, p. 47 (1953) CASE CONCERNING SOVEREIGNTY OVER
PULAU LIGITAN AND PULAU SIPADAN
(INDONESIA v. MALAYSIA)
ICJ Reports 2002, p. 625 (2002)

The Minquiers and Ecrehos group of Islet and rocks are

found in the English Channel. Both parties contend that they
Indonesia and Malaysia lay claim over the islands of Ligitan
have respectively an ancient or original title to the
and Sipadan. Both countries cite treaties, colonial
Minquiers and Ecrehos, and that their title has always
effectivites, and title by succession as proof of ownership.
maintained and was never lost.

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PUBLIC INTERNATIONAL LAW
Indonesia:  In 1895 and 1928, Dutch Royal Nay
deployed ships in the area;
 Indonesian fishermen fished in the area;
and
 Non-inclusion of the islands in their maps
immaterial because they were prepared in
haste.
Malaysia:  As early as 1914, the Great Britain regulated
the control and collection of turtle eggs in
the area;
 It established licensing for boats;
 Established reservations for bird
sanctuaries;
 British North Borneo authorities
constructed lighthouses in the 1960s which
were under the control of the Malaysian
authorities.
The court ruled for Malaysia because of its “effective acts
of administration”
Among other evidence presented, Malaysia’s construction
of lighthouses in 1962 and 1963 was considered by the
Court. While they are not usually used as an indicator of
state authority (as in the Minquiers and Ecrehos Case),
they are legally relevant in the case of small islands.
The Court rejected Indonesia’s claim that they merely
tolerated the construction of the lighthouses because they
are useful for safe navigation. According to the Court, these
lighthouses are very important to people in North Borneo,
and the silence of Indonesia over this construction is highly
unusual.
ERITREA-YEMEN ARBITRATION
(1996)
The dispute relates to ownership over the Red Sea islands
between Eritrea which claims title by succession, and
Yemen which claims title by automatic reversion and
historic title.
Eritrea:  Succession. It inherited title to the Islands
in 1993, when the State of Eritrea became
legally independent from the State of
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Ethiopia, which had in turn inherited its
title from Italy;
 Construction and maintenance of
lighthouses in different islands.
Yemen:  Historic title. This title can be traced to the
Bilad el-Yemen, which is said to have
existed as early as the 6th Century AD.
 Automatic reversion. When the Ottoman
Empire collapsed, ending its occupation of
the area, the title reverted back to Yemen.
 Construction and maintenance of
lighthouses in different islands.
No title by succession. Italy, Eritrea’s predecessor, did not
obtain title to the territory under the Treaty of Lausanne
because it was provided that the allied powers have yet to
agree on who can claim sovereignty over the territory.
No historic title. Medieval Yemen had no concept of
territorial sovereignty. Therefore, Yemen cannot claim title
by automatic reversion.
The tribunal found out that none of them presented a
better claim, so it decided based on effective occupation,
since occupation is the prima facie evidence of title.
Portico Doctrine. – A method by which off-shore islands
can be attributed to a State’s sovereignty. Islands near
coastal states must pertain to such states.
Both parties have constructed and operated lighthouses in
different islands. The significance of these lighthouses
would thus have to be considered separately, on a per
island basis.
Eritrea was found to be sovereign over the Mohabbakah
islands, the Haycock islands and Southwest Rocks owing to
their proximity to the Eritrean mainland and presumption
of natural unity.
Yemen was found to be sovereign over the Zubayr group of
islands and the Zuqar-Hanish group on the balance of the
evidence from the Parties regarding the exercise of the
functions of state authority.
The delimitation was contentious due to significant
oil reserves and oil shipping lanes in the area.
This case is most analogous to the issue on Spratlys.
CLASS NOTES
MAP CASES
ERITREA-YEMEN ARBITRATION
(1996), supra.
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PUBLIC INTERNATIONAL LAW
(This section deals with the parties’ claims relating to maps.
For a more exhaustive discussion, refer to p. 31)
Claims relating to maps:
Eritrea:  Maps from the 20th century that Italy (its
predecessor state) was sovereign over the
islands.
Yemen:  Maps from the 18th to 19th centuries show
that the islands once belonged to Yemen,
proving its historical title.
 UN maps from the 1950’s show that the
islands were not considered part of
Ethiopia (present-day Eritrea)
As to the pre-19th century maps, Court ruled that there was
no attribution of the islands to Yemen.
As to the use of maps to prove Italian sovereignty during the
20th century, it appears that official Italian cartography did
not wish formally to portray the Islands as being under
Italian sovereignty in the inter-war period. However, the
map evidence – whilst supportive of and consistent with the
conclusions reached – is not itself determinative. Were
there no other evidence in the record concerning the
attitude or intentions of Italy, this evidence would be of
greater importance.
As to the UN maps, it is UN practice that its publication of
maps does not constitute a recognition of sovereign title
over territory. Hence, they cannot be relied upon by either
party.
Also, the Court considered the 20th century maps as tending
to show the superiority of Yemeni map evidence, and that
Eritrean cartography described the islands as non-Eritrean.
These conclusions were considered in arriving at the
determinations made as to which islands go to each party.
(discussed supra.)
CASE CONCERNING THE TEMPLE OF PREAH
VIHEAR (CAMBODIA v. THAILAND)
ICJ Reports 1962, p. 6 (1962)
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(This section deals with the parties’ claims relating to maps.
For a more exhaustive discussion, refer to p. 14)
Two treaties were entered into by France and Siam which
involved delimitation of certain areas. A commission was
tasked to survey the delimitation points and the final stage
of the delimitation was the preparation of maps. Siam did
not possess adequate technical means to do so, prompting
it to ask French officers to do the mapping for them. The
maps were drawn by a well-known French cartographer and
given wide publicity. It was communicated to the
government of Siam.
The principle of estoppel was applicable. The maps were
communicated to Siam as purporting to represent the
outcome of the work of delimitation. Since there was no
reaction on the part of Siam, either then or for many years,
and that France (later, Cambodia) relied on this non-
objection of Siam, Siam (later, Thailand) is estopped from
claiming otherwise. The uti possidetis juris principle is
applicable as to the successor states i.e. Cambodia and
Thailand.
Principle of Uti Possidetis Juris. – Successor states shall
respect colonial boundaries of colonial rulers.
CASE CONCERNING THE TERRITORIAL
DISPUTE (LIBYAN ARAB JAMAHIRIYA v. CHAD)
ICJ Reports 1994, p. 6 (1994)
In 1955, a treaty was concluded between France and Libya.
France was previously the colonial power exercising
sovereignty over Chad, while Libya was a former colony of
Italy and has just gained independence when it entered into
a treaty with France. The treaty states that the frontiers of
the two territories are those that result from international
instruments in force on the date of constitution of Libya.
A territorial dispute erupted between the parties, thus they
agreed to submit the matter to the ICJ to decide upon the
limits of the territories of the respective parties in
accordance with the rules of international law.
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PUBLIC INTERNATIONAL LAW
Libya:  There is no border because the 1955
treaty has already expired;
 This case concerns a dispute regarding
attribution of territory;
 Court must fix the boundaries on the basis
of effective occupation.
Chad:  Libya is bound by the 1955 treaty;
 This case concerns a dispute regarding
attribution of territory;
 Court needs only to locate where the
boundaries are, applying the uti possidetis
juris principle.
The terms of the treaty signified that the parties recognize
the complete frontier between their respective territories.
No subsequent agreement, either between France and
Libya, or between Chad and Libya, has called in question the
frontier in this region deriving from the 1955 Treaty. Libya
never challenged the territorial dimensions of Chad as set
out by France which is reflected by UN publications even
after 1960.
The establishment of this boundary is a fact which, from the
outset, has had a legal life of its own, independently of the
fate of the 1955 Treaty. Once agreed, the boundary stands,
for any other approach would vitiate the fundamental
principle of the stability of boundaries, the importance of
which has been repeatedly emphasized by the Court. In
effect, a boundary established by treaty thus achieves a
permanence which the treaty itself does not necessarily
enjoy. The treaty can cease to be in force without in any way
affecting the continuance of the boundary.
The Court applied the principle of uti possidetis juris – which
provides that successor states must respect the colonial
boundaries of colonial rulers, and such boundaries would
survive after independence.
With respect to the fact that the treaty itself specified that
it has a life of only 20 years, the Court applied the theory of
auto-limitation – which provides that boundaries have a life
of its own, separate from the treaty itself. A boundary
established by treaty achieves permanence which the
treaty itself does not necessarily enjoy.
ANGLO-NORWEIGIAN FISHERIES CASE (UNITED
KINGDOM v. NORWAY)
ICJ Reports 1951, p. 116 (1951)
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In 1935, a Norwegian Royal Decree was enacted delimiting
the Norwegian fisheries zone. This delimitation made use of
straight baselines drawn between fixed points on the
Norwegian coastal zone – a zone which includes its
mainland, and the various islands, islets and reefs, fjords
and bays which comprise a distinctive archipelago known as
the “skjaergaard.” [skahr-jard]
The United Kingdom, in light of its various fishing interests
in that area, protested the delimitation, claiming that it was
contrary to international law principles.
United  Norway’s baselines must be reckoned
Kingdom: from the low-water mark on the mainland;
Norway:  Baselines must be reckoned from the low-
water mark of the skjaergaard;
The baseline shall be determined using the straight
baseline method, following the outline of the
“skjaergaard”.
The Norwegian mainland is bordered in its western sector
by the "skjaergaard", which constitutes a whole with the
mainland. This being so, it is the outer line of the
"skjaergaard" which must be taken into account in
delimiting the belt of Norwegian territorial waters.
Straight baseline method. This method consists of selecting
appropriate points on the low-water mark and drawing
straight lines between them.
Following this method, there is no need to follow all of the
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 territorial
sea shall be reckoned.
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PUBLIC INTERNATIONAL LAW
(Magallona, 2005)
In using the straight baseline method, the Court provided
the following guidelines:
1) the baseline must not depart to any appreciable
extent from the general direction of the coast;
2) the sea areas lying within the landward side of the
baseline must be closely linked to the land domain
and are internal waters;
3) The economic interest peculiar to the region, as
evidenced by long usage, should be considered.
The Court also noted that the delimitation of sea areas
always has an international aspect. It cannot be dependent
merely upon the will of the coastal State as expressed in its
municipal law. Although the act of delimitation is
necessarily a unilateral act, the validity of the delimitation
with regard other States depends upon international law.
WESTERN SAHARA (ADVISORY OPINION)
ICJ Reports 1975, p. 12 (1975)
Spain, Morocco and Mauritania were embroiled in a
territorial dispute over territory known as “Western
Sahara.” The UN General Assembly requested the ICJ to
answer two questions re: the Western Sahara (WS):
(1) Was Western Sahara at the time of colonization by
Spain terra nullius?; and
(2) What were the legal ties between this territory and
the Kingdom of Morocco and the Mauritanian
entity?
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Spain:  Terra nullius during colonization, hence
part of its Empire;
Morocco:  Immemorial possession of the territory;
 Uninterrupted exercise of authority;
 Allegiance of local tribes;
Mauritania:  Ties with a historical “Mauritanian
Entity”;
 Common way of life with the nomads
None of the parties had a better claim over the others.
Territories inhabited by the tribes or peoples having a social
and political organization were not regarded as terra
nullius. In this case, at the time of the colonization Western
Sahara was inhabited by peoples who, though nomadic,
were socially and politically organized in tribes and under
chiefs competent to represent them. It also shows that, in
colonizing Western Sahara, Spain did not proceed on the
basis that it was establishing its sovereignty over a terra
nullius.
What is essential is a showing of effective display of
authority during Spanish colonization and immediately
after. Morocco failed to display any effective and exclusive
State activity in Western Sahara. The allegiance it claims
from people therein is limited to only a few tribes.
The historical Mauritanian Entity used by Mauritania has
not been shown to have any sovereign ties with Western
Sahara. It has no separate identity from that of the tribes
which composed it, whose nomadic way of life knew no
territorial frontiers. Neither were these tribes distinct and
independent in relation to each other, and there was no
common institution that they recognized.
THE CASE CONCERNING THE LAND, ISLAND
AND MARITIME FRONTIER DISPUTE (EL
SALVADOR v. HONDURAS, with NICARAGUA
intervening)
ICJ Reports 1992, p. 351(1992)
The Parties, El Salvador, Honduras, and intervenor
Nicaragua, were all former administrative subdivisions
(provinces) of the Spanish empire in Central America. El
Salvador and Honduras became independent states after the
disintegration of the Spanish empire in Central America.
Even before their independence, Spanish Central America
had overlapping administrative boundaries. The Court was
tasked to find where the boundaries are.
The uti possidetis juris principle was applied. The Court said
that if the colonial boundaries are clear, it will not look at
colonial effectivites. In this case, there are cases of overlaps
because of lack of sophisticated means for surveying.
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PUBLIC INTERNATIONAL LAW
Contemporaneous acts (belief of one that he belongs to this
particular unit) are considered because it is useless to look
at effective occupation, for the territories are subject to
only one colonial rule. The Court looked at the Republic
Titles submitted to them and the subsequent acts of parties
after independence, referring to post-colonial effectivites as
proof of colonial boundaries. The Court said that principle
acquiescence by recognition will also apply if a party does
not object. Uti possidetis still applied to the islands (El Tigre,
Meanguera & Meanguerita) because none of them are terra
nullius which can be acquired through occupation.
CLIPPERTON ISLAND ARBITRATION (FRANCE v.
MEXICO) (1931)
Clipperton Island, apparently uninhabitable, is a low coral
reef in the Pacific Ocean. In 1858, the French Navy, while
cruising about half a mile off Clipperton, declared that the
sovereignty of the island beginning from that date belongs
to Emperor Napoleon III. The vessel didn't reach the shore
and it left without leaving on the island any sign of
sovereignty. The declaration was communicated to the
government of Hawaii and was published in the journal The
Polynesian of Honolulu. The island remained without
population and no administration. Later, Mexico arrived and
ignored the occupation claimed by France and hoisted their
own flag. It claimed that the islands belong to it.
France:  1858 landing, and hoisting of French flag;
 Declaration of sovereignty communicated
to the Government of Hawaii through the
journal, “The Polynesian”;
Mexico:  Spain discovered it and by virtue of the
Papal Bull of Alexander VI, it belonged to
Spain and, in 1836, to Mexico as Spain’s
successor.
France has title over the islands.
There is no proof that Spain discovered the island first and
that Spain effectively exercised such right. It presented a
map but the official character of such map cannot be
affirmed. Also, proof of historic right is not supported by
manifestation of sovereignty over the island. The tribunal
found that the island was terra nullius and susceptible of
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occupation. Physical occupation is merely procedural to the
taking of possession and is not identical to the latter.
If a territory is uninhabited, from the moment when the
occupying state makes its appearance there, at the absolute
and undisputed disposition of that state, from that moment
the taking of possession must be considered as
accomplished, and the occupation is thereby completed.
Physical occupation is not required in this case. The
published declaration of occupation was sufficient to show
taking of possession and intent to possess.
B. UNCLOS
The United Nations Convention on the Law of the Sea
(UNCLOS) is the ultimate constitution governing the use of
the sea.
It took 80 years to be codified. While taken to be a mere
restatement of customary international law, it goes beyond
being a mere codification of opinio juris. It was agreed upon
by states on the basis of consensus and compromise, and in
effect may be taken to constitute state practice binding
even on non-parties.
Its roots can be traced to the treatise “Mare Liberum” by
Portuguese Hugo Grotius, which advanced the principle
that the sea is owned by everyone and that it was under the
regime of the “common heritage of mankind.”
It divides the oceans and seas into the following maritime
zones:
 Internal Waters
 Territorial Sea
 Contiguous Zone
 Exclusive Economic Zone
 High Seas
BASELINES
Baseline
It is a line from which the breadth of the territorial sea and
other maritime zones is measured. It is essential for the
determination of the maritime boundary of the coastal
state.
There are two types:
1. Normal Baseline
2. Straight Baseline
UNCLOS, Art. 5.
Normal baseline
Except where otherwise provided in this
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PUBLIC INTERNATIONAL LAW
Convention, the normal baseline for measuring the
breadth of the territorial sea is the low-water line
along the coast as marked on large-scale charts
officially recognized by the coastal State.
Normal Baseline
It is the low-water line along the coast as marked on large-
scale charts officially recognized by the coastal state. (Art.
5)
There is no fixed or definitive method to determine the
location of the low-water line. One way is to mark it on the
lowest ebb tide or on the lowest astronomical tide. Another
way, as suggested in the Anglo-Norwegian Fisheries Case, is
to use the mean between the high and low tides.
Fig.. (Magallona, 2005)
UNCLOS, Art. 7.
Straight baselines
1. In localities where the coastline is deeply
indented and cut into, or if there is a fringe of
islands along the coast in its immediate vicinity, the
method of straight baselines joining appropriate
points may be employed in drawing the baseline
from which the breadth of the territorial sea is
measured.
2. Where because of the presence of a delta and
other natural conditions the coastline is highly
unstable, the appropriate points may be selected
along the furthest seaward extent of the low- water
line and, notwithstanding subsequent regression of
the low-water line, the straight baselines shall
remain effective until changed by the coastal State
in accordance with this Convention.
3. The drawing of straight baselines must not
depart to any appreciable extent from the general
direction of the coast, and the sea areas lying within
the lines must be sufficiently closely linked to the
land domain to be subject to the regime of internal
waters.
A2015
4. Straight baselines shall not be drawn to and from
low-tide elevations, unless lighthouses or similar
installations which are permanently above sea level
have been built on them or except in instances
where the drawing of baselines to and from such
elevations has received general international
recognition.
5. Where the method of straight baselines is
applicable under paragraph 1, account may be
taken, in determining particular baselines, of
economic interests peculiar to the region
concerned, the reality and the importance of which
are clearly evidenced by long usage.
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])
UNCLOS sets forth limitations on the use of the straight
baseline method:
1. Must not depart to any appreciable extent from
the general direction of the coast; (Art. 7 [3])
2. Sea areas lying within the straight baselines must
be sufficiently close to the land domain to be
subject to the regime of internal waters; (ibid.)
3. Must not be drawn to and from low-tide
elevations;
 UNLESS, lighthouses or similar
installations permanently above sea
level have been built on them; and
 UNLESS such use of baselines on low-
tide elevations have received general
international recognition. (Art. 7 [4])
4. Cannot be applied by a state in such a manner as
to cut off the territorial sea of another from the
high seas or an EEZ. (Art. 7 [6])
The drawing of straight baselines may take into account
economic interests peculiar to the region concerned, the
realty and importance of which are clearly evidence by a
long usage. (Art. 7 [5]) This has likewise seen application in
the Anglo-Norwegian Fisheries Case.
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PUBLIC INTERNATIONAL LAW A2015

of islands, an indentation has more than one mouth,

the semi-circle shall be drawn on a line as long as
the sum total of the lengths of the lines across the
different mouths. Islands within an indentation
shall be included as if they were part of the water
area of the indentation.

4. If the distance between the low-water marks of

Fig.. (Magallona, 2005)
the natural entrance points of a bay does not exceed
24 nautical miles, a closing line may be drawn
between these two low-water marks, and the
waters enclosed thereby shall be considered as
internal waters.

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 24
Mouths of rivers nautical miles shall be drawn within the bay in such
a manner as to enclose the maximum area of water
If a river flows directly into the sea, the baseline 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.

A bay is a well-marked indentation in the coast which

satisfies the semi-circle test. (Art. 10 [2])

Semi-Circle Test. – The indentation in question must have

an area as large as or larger than that of a semi-circle, whose
diameter (which constitutes the straight baseline) is a line
drawn across the mouth of the indentation.
 Baseline:
Fig. (Magallona, 2005) o A closing line drawn across the natural
entrance of the bay
Baselines for Bays o May not exceed 24 nautical miles.
 Arc:
UNCLOS, Art. 10. o Drawn from the endpoints of the
Bays baseline
1. This article relates only to bays the coasts of
which belong to a single State.

2. For the purposes of this Convention, a bay is a

well-marked indentation whose penetration is in
such proportion to the width of its mouth as to
contain land-locked waters and constitute more
than a mere curvature of the coast. An indentation
shall not, however, be regarded as a bay unless its
area is as large as, or larger than, that of the semi-
circle whose diameter is a line drawn across the Fig. (Magallona, 2005)
mouth of that indentation.
If the baseline exceeds 24 nautical miles:
3. For the purpose of measurement, the area of an  A straight baseline shall be drawn within the bay
indentation is that lying between the low-water such that it encloses the maximum area of water
mark around the shore of the indentation and a line that is possible with a line not exceeding 24
joining the low-water mark of its natural nautical miles. (Art. 10 [5])
entrance points. Where, because of the presence

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PUBLIC INTERNATIONAL LAW
Fig. (Magallona, 2005)
If the bay has more than one mouth because of the
presence of islands:
 The baseline shall be drawn on a line as long as the
sum total of the lengths of the lines across
different mouths.
Fig. (Magallona, 2005)
Baselines for Ports
UNCLOS, Art. 11.
Ports
For the purpose of delimiting the territorial sea, the
outermost permanent harbor works which form an
integral part of the harbor system are regarded as
forming part of the coast. Off-shore installations
and artificial islands shall not be
considered as permanent harbor works.
Port installations forming an integral part of a harbor
system, such as breakwaters, wharves and loading bays, are
regarded as forming part of the coast. (Art. 11 [5]) Baselines
shall be drawn from their openings.
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Fig.
Baselines for Low-tide Elevations
UNCLOS, Art. 13.
Low-tide elevations
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.
2. Where a low-tide elevation is wholly situated at
a distance exceeding the breadth of the territorial
sea from the mainland or an island, it has no
territorial sea of its own.
A low-tide elevation (LTE) is a naturally formed area of land
surrounded by water, which is above water at low tide but
submerged at high tide.
Baselines may be reckoned from such low-tide elevations
when such LTE lies wholly or partly within the breadth of the
territorial sea (i.e. 12 nautical miles) from the mainland or
an island.
INTERNAL WATERS AND INNOCENT
PASSAGE
UNCLOS, Art. 8.
Internal waters
1. Except as provided in Part IV, waters on the
landward side of the baseline of the territorial sea
form part of the internal waters of the State.
2. Where the establishment of a straight baseline in
accordance with the method set forth in article 7
has the effect of enclosing as internal waters
areas which had not previously been considered as
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PUBLIC INTERNATIONAL LAW A2015

Violation of freedom of maritime conference. Any state

such, a right of innocent passage as provided in
this Convention shall exist in those waters.
Internal Waters, Defined
Internal waters are waters of lakes, rivers found within the
coastal state and those waters on the landward side of the
baseline of a coastal state.
Coastal State Has Sovereignty
Over these waters the coastal state has sovereignty as if it
were part of its land territory. This extends to the airspace
over it and to its seabed and subsoil.
whose vessels enjoy a right to innocent passage in territorial
waters of another state also enjoys all the freedom
necessary for maritime navigation.
To lay mines in the territorial waters of another state during
peacetime is an unlawful act. In addition, if a state lays
mines in any waters in which foreign vessels have rights of
access or passage, and fails to give any warning or
notification with regard to such mines, such state is in
breach of international law and acts against the freedom of
navigation and maritime commerce.

No Right of Innocent Passage SAUDI ARABIA v. ARABIAN AMERICAN OIL

There is no right of innocent passage in internal waters, as COMPANY
such right applies only to the territorial sea and the 27 ILR 117, supra.
archipelagic waters. (Art. 52)
(For a thorough treatment of the case, refer to p. 16)
However, if through the use of the straight baseline method
a coastal state is able to enclose as its internal waters areas
(*Note: The parts of the case concerning internal waters are
which were previously part of the territorial sea (Art. 8 [2])
missing. A due search only produced excerpts from the case
or straits used for international navigation (Art. 35 [a]), the
relevant only to the contractual issues therein, and none on
right of innocent passage continues to exist in such
internal waters. Hence, no original discussion on the matter
“extended” internal waters.
could be included.)

Harbors are internal waters, not territorial seas.

CASE CONERNING MILITARY AND
CLASS NOTES
PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES)
ICJ Reports 1986, p.14 (1986), supra.
MAGALLONA et.al. v. EXECUTIVE SECRETARY
G.R No. 187167 (2011)
(supra. For a more exhaustive discussion, refer to p. 6)
Congress passed RA 9522, which amended the old baselines
Nicaragua alleges that the United States was in breach of its
law (RA 3046). The new law, passed under the pretense that
obligation under general and customary international law in
there was a May 2009 deadline set by the UNCLOS to beat,
violating the sovereignty of Nicaragua. One of the acts
“shortened one baseline, optimized the location of some
imputed by Nicaragua which are directly attributable to the
basepoints around the Philippine archipelago and classified
United States is the alleged mining (i.e. laying of mines) of
adjacent territories (Kalayaan Group of Islands and
Nicaraguan ports and territorial waters, which has
Scarborough Shoal) as ‘regimes of islands.’”
destroyed 12 vessels, Nicaraguan and foreign alike.
Petitioners assailed the constitutionality of RA 9522.
The laying of mines in the internal and territorial waters of
Nicaragua rendered the US in breach of its CIL obligations
Petitioners:  RA 9522 reduces the Philippine maritime
not to violate Nicaraguan sovereignty and not to interrupt
territory by discarding pre-UNCLOS
peaceful maritime conference.
demarcations embracing the rectangular
area delineated by the Treaty of Paris and
Evidence shows that the mining was authorized by US
other treaties (and encoded in the
President Reagan, and conducted under the supervision of
Constitution);
US agents.

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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PUBLIC INTERNATIONAL LAW
It unconstitutionally converts country’s
internal waters into archipelagic waters,
which are subject to maritime passage
and overflight. This exposes Philippine
waters to nuclear and maritime pollution
hazards;
Failure of the law to enclose the Kalayaan
Group of Islands and Scarborough Shoal
within the baselines in favor of their
treatment as regimes of islands takes the
same outside PH territory and undermines
the Philippine claim thereto.
RA 9522 is constitutional.
No diminution of territory. RA 9522 does not delineate
Philippine territory. It is only a baseline law which is, in turn,
but a statutory mechanism to delimit with precision PH
maritime zones and continental shelves pursuant to
UNCLOS. The law and UNCLOS play no role in the
acquisition, enlargement or diminution of territory.
In fact, RA 9522 increased PH total maritime space. While
having reduced territorial seas from (271,136 sq. nm  32,
106 sq. nm), it allowed the country to claim 382,669 sq. nm
of EEZ. This EEZ even extends beyond the waters covered
under the old baselines law. (Caveat: subject to delineation
of boundaries in accordance with UNCLOS in case of
overlapping EEZs)
Fig.. Delimitation of maritime zones under RA 9522.
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Delineation of archipelagic waters valid. Philippine
sovereignty is maintained in archipelagic waters, their
airspace, bed and subsoil. However, this fact of sovereignty
does not preclude the operation of international law norms
subjecting archipelagic waters to marginal burdens (i.e.
right of innocent passage, archipelagic sea lanes passage) in
the interest of maintaining expeditious international
navigation. Rights of innocent passage are customary norms
automatically incorporated into Philippine Law, and such
rights are concessions to archipelagic states in exchange for
their right to claim archipelagic waters subject to territorial
sovereignty. This notwithstanding, Congress may pass
legislation regulating innocent and sea lanes passage.
Regime of Islands classification valid. KIG and Scarborough
Shoal cannot be enclosed within the baselines because such
areas are located at an appreciable distance from the
nearest shoreline of the Philippines. To enclose them would
constitute a breach of the UNCLOS, particularly:
Art. 47 (3) – “the drawing of such baselines shall
not depart to any appreciable extent from the
general configuration of the archipelago.”
The decision to classify them as regimes of islands manifests
the Philippine’s observance of its pacta sunt servanda
obligation under UNCLOS. Such areas fall under Art. 121,
which covers any “naturally formed area of land,
surrounded by water, which is above water at high tide.”
While the Court recognized the move to become an
archipelagic state pursuant to UNCLOS was optional, it held
that Congress could properly do so.
The UNCLOS did not require any new baseline law. The
language of the convention is permissive.
Contrary to the Arroyo Administration’s insistence, the
May 2009 deadline was not for archipelagic states to
revise their baselines. It was for purposes of making
claims to an extended continental shelf (which we did
for Benham Rise).
RA 9522 led to a reduction 229,000 sq. nm loss of
territorial waters.
CLASS NOTES
TERRITORIAL SEA
UNCLOS, Art. 3.
Breadth of the territorial sea
Every State has the right to establish the breadth of
its territorial sea up to a limit not exceeding 12
nautical miles, measured from baselines
determined in accordance with this Convention.
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PUBLIC INTERNATIONAL LAW
UNCLOS, Art. 4
Outer limit of the territorial sea
The outer limit of the territorial sea is the line every
point of which is at a distance from the nearest
point of the baseline equal to the breadth
of the territorial sea.
Territorial Sea, Defined
It is a belt of sea adjacent to internal waters or archipelagic
waters, as the case may be, whose breadth extends up to a
limit not exceeding 12 nautical miles from a coastal state’s
baselines.
Fig. (Magallona, 2005)
Coastal State Has Sovereignty
A coastal state’s sovereignty covers the territorial sea,
which extends to the airspace over the same as well as to
its bed and subsoil. (Art. 2 [2])
Right of Innocent Passage
Passage means navigation through the territorial sea for
the purpose of:
a) Traversing that sea without entering internal
waters; or
b) Proceeding to or from internal waters. (Art. 18
[1])
Passage must be continuous and expeditious. But a ship is
allowed to stop and anchor if:
a) Such anchoring or stopping is incidental to
ordinary navigation; or
b) Rendered necessary on account of force majeure
or for the purpose of rendering assistance to
persons, ships or aircraft in danger or distress.
(Art. 18 [2])
UNCLOS, Art. 19.
Meaning of innocent passage
1. Passage is innocent so long as it is not prejudicial
to the peace, good order or security of the coastal
State. Such passage shall take place in conformity
with this Convention and with other
rules of international law.
A2015
xxxx
There is innocent passage if such passage is not prejudicial
to the peace, good order or security of the coastal state.
Non-innocent passage. – Passage shall NOT be innocent if
a foreign ship, without the consent of the coastal state,
engages in any of the following acts while passing though
the territorial sea:
a) any threat or use of force against the sovereignty,
territorial integrity or political independence of
the coastal State, or in any other manner in
violation of the principles of 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;
g) the loading or unloading of any commodity,
currency or person contrary to the customs, fiscal,
immigration or sanitary laws and regulations of
the coastal State;
h) any act of willful and serious pollution contrary to
this Convention;
i) any fishing activities;
j) the carrying out of research or survey activities;
k) any act aimed at interfering with any systems of
communication or any other facilities or
installations of the coastal State;
l) any other activity not having a direct bearing on
passage. (Art. 19 [2])
Rights of protection for the coastal state. – A coastal state
is given the following rights of protection with regard to the
right of innocent passage. It may:
1) Take necessary steps in its territorial sea to
prevent non-innocent passage;
2) Take measures to prevent any breach of the
conditions for the admission of ships to internal
waters, with respect to ships proceeding to
internal waters or ports or to ships calling at a
port facility outside internal waters; and
3) Suspend temporarily the innocent passage of
foreign ships in specified areas of the territorial
sea
 IF, such suspension is essential for the
protection of its security
 Such suspension may take effect only
after publication. (Art. 25)
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PUBLIC INTERNATIONAL LAW A2015

In designating sea lanes and prescribing traffic schemes,

Duties of a coastal state. – The coastal state must not
hamper the innocent passage of foreign ships. While it is
given the right to enforce laws and regulations (infra.)
relating to innocent passage, the coastal state is barred
from:
a) imposing requirements on foreign ships which
have the practical effect of denying or impairing
the right of innocent passage; or
b) discriminating in form or in fact against the ships
of any State or against ships carrying cargoes to,
from or on behalf of any State.
It is also the coastal state’s duty to give appropriate
publicity to any danger to navigation, of which it has
knowledge, within its territorial sea. (Art. 24)
Laws and regulations by coastal state. – A coastal state may
adopt laws and regulations relating to innocent passage
relating to any or all of the following:
a) the safety of navigation and the regulation of
maritime traffic;
b) the protection of navigational aids and facilities
and other facilities or installations;
c) the protection of cables and pipelines;
d) the conservation of the living resources of the
sea;
e) the prevention of infringement of the fisheries
laws and regulations of the coastal State;
f) the preservation of the environment of the
coastal State and the prevention, reduction and
control of pollution thereof;
g) marine scientific research and hydrographic
surveys; and
h) the prevention of infringement of the customs,
fiscal, immigration or sanitary laws and
regulations of the coastal State. (Art. 21)
The coastal state must give due publicity to such laws and
regulations.
The coastal state may not apply law and regulations on the
design, construction, manning and equipment of foreign
ships.
 UNLESS, such laws and regulations only give effect
to generally accepted international rules or
standards. (Art. 21)
Sea lanes and traffic separation schemes. – The coastal
state, when necessary for the safety of navigation, may
require foreign ships exercising their right to innocent
passage to use designated sea lanes or follow prescribed
traffic separation schemes.
Tankers, nuclear-powered ships and ships carrying nuclear
or other inherently dangerous or noxious substances or
materials may be required to confine their passage to sea
lanes designated by the coastal state.
the coastal state shall take into account:
a) Recommendations of the competent
international organization;
b) Any channels customarily used for international
navigation;
c) Special characteristics of particular ships and
channels; and
d) Density of traffic.
These must be clearly indicated on charts and given due
publicity. (Art. 22)
Charges which may be levied on foreign ships. –
General Rule: No charge for passage.
Exception: Charges for payment of specific services
rendered to the ship. (Art. 26)
Exercise of criminal jurisdiction. –
General Rule: Coastal State should NOT exercise
criminal jurisdiction on board a foreign
ship passing through the territorial sea to
arrest any person or to conduct any
investigation in connection with any
crime committed on board the ship during
its passage.
Exceptions: a) if the consequences of the crime
extend to the coastal State;*
b) if the crime is of a kind to disturb the
peace of the country or the good
order of the territorial sea;*
c) if the assistance of the local
authorities has been requested by
the master of the ship or by a
diplomatic agent or consular officer
of the flag State; or
d) if such measures are necessary for
the suppression of illicit traffic in
narcotic drugs or psychotropic
substances. (Art. 27 [1])
*For exceptions A and B, if the ship master so requests, the
coastal state shall notify the diplomatic agent or consular
officer of the flag state before taking any steps. (Art. 27 [3])
Article 27 also provides for particular situations:
Ship passing though  Coastal state has the right
the territorial sea to take any steps
AFTER LEAVING authorized by its laws for
internal waters: the purpose of an arrest
or investigation on
board. (Art. 27 [2])
Ship, proceeding  Coastal state may not take
from a foreign port, any steps on board to
passing through the arrest any person or to
territorial sea conduct any investigation
WITHOUT in connection with any

42
PUBLIC INTERNATIONAL LAW
ENTERING internal crime committed before
waters: the ship entered the
territorial sea. (Art. 27
[5])
Q: Which rule does the UNCLOS follow with respect
to criminal jurisdiction over acts committed
during innocent passage?
It seems that the UNCLOS per Art. 27 (1) (a) and (b),
follows the French Rule – crimes committed aboard a
foreign merchant vessels should not be prosecuted in
the courts of the country within whose territorial
jurisdiction they were committed, unless their
commission affects the peace and security of the
territory.
Exercise of civil jurisdiction. – A coastal state may not stop
or divert a foreign ship passing through the territorial sea
for the purpose of exercising civil jurisdiction in relation to
a person on board the ship. (Art. 28 [1])
It may likewise not levy execution against or arrest the ship
for the purpose of any civil proceedings, except:
1. with respect to obligations or liabilities assumed
or incurred by the ship itself in the course or for
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 foreign
ship lying in the territorial sea, or passing through
the territorial sea after leaving internal waters.
(Art. 28 [3])
Rules for special ships. – UNCLOS provides for special rules
governing particular ships’ exercise of the right to innocent
passage.
Submarines,
 Navigate on the surface; and
Underwater
 Show their flag (Art. 20)
Vehicles
Foreign nuclear-
powered ships, and  Carry documents; and
ships carrying  Observe special precautionary
nuclear or other measures established for such
inherently ships by international
dangerous or agreements (Art. 23)
noxious substances
Q: Are warships allowed innocent passage through
the territorial sea?
Yes. The right to innocent passage pertains to all ships,
including warships. UNCLOS lays down in Articles 29-
32 special rules applicable only to
warships and other government ships operated for
non-commercial purposes. (infra)
Rules on warships. - A "warship" means a ship:
A2015
 Belonging to the armed forces of a State bearing
the external marks distinguishing such ships of its
nationality;
 Under the command of an officer duly
commissioned by the government of the State
and whose name appears in the appropriate
service list or its equivalent; and
 Manned by a crew which is under regular armed
forces discipline. (Art. 29)
The coastal state may require any warship to leave the
territorial sea immediately if:
 It does not comply with the laws and regulations
of the coastal State concerning passage through
the territorial sea; and
 Disregards any request for compliance therewith
which is made to it. (Art. 30)
A warship’s flag state shall bear international responsibility
for any loss or damage to the coastal state resulting from
the non-compliance by a warship or other government ship
operated for non-commercial purposes with the laws and
regulations of the coastal state concerning passage through
the territorial sea or with the provisions of this Convention
or other rules of international law. (Art. 31)
THE GULF OF SIDRA INCIDENT
The Gulf of Sidra is a maritime area situated north of Libya
covering an area of 22,000 sq. mi. In 1973, the Libyan
government announced that the Gulf of Sidra is an integral
part of the Libyan Arab Republic, with sovereignty thereon
having been exercised through history, and thus it
constituted internal waters. It proceeded to delimit its
claimed territorial waters by drawing the gulf’s closing line
300 miles across its mouth, with the warning that any
foreign vessel that would breach the line without
authorization would be in violation of Libyan sovereignty.
Further, it claimed that its 12mi territorial sea limit was to
be reckoned from this line. This position has led to several
incidents involving US ships.
Libya:  The gulf is a “historic bay” over which Libya
has exercised sovereignty through history.
As such, the Gulf’s closing line
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PUBLIC INTERNATIONAL LAW
need not satisfy UNCLOS provisions;
 Libya may restrict access to the waters
pursuant to its sovereignty.
US:  The gulf cannot be regarded as internal
waters;
 Requirement of prior authorization for
entry is contrary to the international
principles of freedom of navigation.
Gulf of Sidra is not a historic bay, and waters within it are
not internal waters. It may not validly restrict access
thereto.
UNCLOS lays down rules on for a body of water to be
properly considered as a bay (i.e. semi-circle test, supra.).
An exception to this requirement is if a body of water is a
“historic bay”. (UNCLOS, Art. 10 *6+)
Claims to historic waters in general are relics of an older and
by now a largely obsolete legal regime, and the
international community has firmly rejected any attempts
to establish any new maritime claims. Such claims encroach
on what would otherwise be considered the common
domain of the international community and would hence
deprive the international community of certain portions of
the high seas.
In the instant case, Libya drew a 300 mile closing line at the
mouth of the gulf, well exceeding the 24mi limit set by the
UNCLOS., under the premise that the gulf fell under the
“historic bay” exception. However, this claimed exception
must fail because Libya has failed to offer any evidence to
substantiate its claim of historical sovereignty 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 survey of
historic bays conducted by the UN.
As such, the acts of Libya in restricting access to the waters
of the gulf beyond 12mi from its coast (not the Libyan-
drawn closing line) constitutes illegal interference of
international navigation and is incompatible with the
international legal regime of the high seas.
ANGLO-NORWEIGIAN FISHERIES CASE (UNITED
KINGDOM v. NORWAY)
ICJ Reports 1951, p. 116 (1951), supra.
(supra. For an exhaustive discussion, refer to p. 8)
THE CASE CONCERNING THE LAND, ISLAND
AND MARITIME FRONTIER DISPUTE (EL
SALVADOR v. HONDURAS, with NICARAGUA
intervening)
(1992), supra.
(supra. For a more exhaustive discussion, refer to p. 34)
A2015
UNITED STATES v. CALIFORNIA
382 US 448 (1966)
(This is the third of a line of cases concerning the
delimitation of California internal waters as against federal
waters.)
In a 1947 decision (United States v. California, 332 US 804),
the Court granted the US Federal government dominion
over submerged lands and mineral rights underlying the
Pacific Ocean beyond 3 nautical miles seaward from the
ordinary low water mark of the coast of California. Areas
within the 3 mile belt would constitute internal waters of the
state, and those without would constitute federal waters.
This was followed by a 1965 (United States v. California,
381 US 139) decision which included bays and other
coastal features which satisfied the semi-circle test (supra.
p. 37) as well as historic bays as part of internal waters of
California.
This 1966 decision is a supplemental decree, which held
that the subsoil and seabed of the continental shelf:
 Within 3 nautical miles seaward, from the COASTLINE of
California (not just from the low water mark as in the
1947 decision) – appertains to CALIFORNIA; and
 Those beyond 3 nautical miles – appertains to the
UNITED STATES.
The Court made use of the following definitions:
Coastline
- Line of mean lower low water on the mainland,
islands, and on low tide elevations within 3
geographic miles from the line of mean lower low
water; or
- Line marking seaward limit of inland waters; and
- Includes outermost permanent harbour works that
form an integral part of harbour system.
Island
It is a naturally formed area of land surrounded by water,
which is above the level of mean high water
Low Tide Elevation
A naturally formed area of land surrounded by water at
mean lower low water:
 above the level of mean lower low water; but
 not above the level of mean high water
Mean Lower Low Water
The average elevation of all daily lower low tides
Mean High Water
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PUBLIC INTERNATIONAL LAW
The average elevation of all high tides
Inland Water
Waters landward of the baseline of the territorial sea, which
are recognized as internal waters of the US under the
Convention on the Territorial Sea and the Contiguous Zone:
a) Any river or stream flowing directly into the sea,
landward of a straight line across its mouth;
b) Any port, landward of its outermost permanent
harbour works and a straight line across its
entrance;
c) Any “historic bay”, over which the US has
traditionally asserted and maintained dominion
with the acquiescence of foreign nations;
d) Any other bay which satisfies the semi-circle test.
(supra)
This case was decided before UNCLOS.
The importance of this case is the definitions of terms
used in maritime delimitation that it provides.
CLASS NOTES
UNITED STATES v. LOUISIANA
394 US 11 (1969)
In a previous case between U.S. vs. Louisiana, the Court held
that based on the Submerged Lands Act of 1953, U.S.
quitclaimed to Louisiana the lands underlying the Gulf of
Mexico within 3 geographical miles of the coastline. In that
Act, the coast line was defined as the “line marking the
seaward limit of inland waters”.
U.S. and Louisiana asks for a supplemental decree
designating the boundary of the lands under the Gulf owned
by Louisiana, the parties differing primarily with respect the
part of the coastline.
US:  Location of the line should be determined
by definitions of “inland waters” contained
in the International Convention on the
Territorial Sea and the Contiguous Zone
(ICTS) and the US v. California (1966) case
(supra.).
Louisiana:  Location of the line should be determined
by the “Inland Water Line” fixed by the
Commandant of the Coast Guard pursuant
to a 1895 Federal statute which directed
the drawing of “lines dividing the high seas
from rivers, harbors, and inland waters”;
 ICTS was not intended to be the exclusive
determinant of inland or territorial waters
or to divest a nation of waters which it had
long considered subject of its sole
jurisdiction.
A2015
The “Inland Water Line” shall be drawn in accordance with
the definitions of the ICTS.
The ICTS definition of the “inland water line” provides:
"The line of ordinary low water along that portion
of the coast which is in direct contact with the
open sea and the line marking the seaward limit of
inland waters."
The case also proceeds to consider whether certain features
of Louisiana coastal features or artificial works fell within
the term “inland waters.” To wit:
Dredged NOT INLAND WATERS.
Channels The permanent harbor works contemplated
are "raised structures" and "installations"
leading to
inland which were "part of the land" and which, in
harbors: some sense enclosed and sheltered the
waters within.
Historic Historic bays are not defined in the
Bays: Convention. The national government, may, if
it chooses, rely on State action to support 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 domestic
case such as the present one
STRAITS AND TRANSIT PASSAGE
Straits, In General
It is a comparatively narrow passageway connecting two
large bodies of water. (Merriam-Webster’s 11th Collegiate
Dictionary, 2003)
Mediterranean
Sea
Atlantic
Ocean
Fig.
Straits used for International Navigation
This pertains to water between two areas of the high seas
or between two exclusive economic zones. (Art. 37)
UNCLOS, Art. 19.
Right of transit passage
1. In straits referred to in article 37, all ships and
aircraft enjoy the right of transit passage, which
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PUBLIC INTERNATIONAL LAW A2015

the regime of freedom of navigation will come

shall not be impeded; except that, if the strait is into play)
formed by an island of a State bordering the strait  Strait connects the high seas or exclusive
and its mainland, transit passage shall not apply if economic zone with the territorial sea of a third
there exists seaward of the island a route through (foreign) state; (Art. 45 [1b])
the high seas or through an exclusive economic  Strait is formed by an island of a State bordering
zone of similar convenience with respect to the strait and its mainland, and there exists
navigational and hydrographical characteristics. seaward of the island a route through the high
seas or through an EEZ of similar convenience.
2. Transit passage means the exercise in (Art. 38 [1])
accordance with this Part of the freedom of
navigation and overflight solely for the purpose of
continuous and expeditious transit of the strait Illustrations. –
between one part of the high seas or an exclusive
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.

3. Any activity which is not an exercise of the right

of transit passage through a strait remains subject
to the other applicable provisions of this
Convention.
Fig.

Right of Transit Passage In this illustration, a right to transit passage may be

It is the right of ships and aircraft to exercise freedom of invoked because you have a situation where:
navigation and overflight solely for the purpose of  The strait (in bracket) provides access between
continuous and expeditious transit through straits used for two bodies of high seas/EEZ;
international navigation (i.e. strait between one part of the  There is no other route of similar convenience
high seas or an EEZ and another part of the high seas or EEZ). save for the use of this strait;
(Art. 38 [2])  There is no high sea zone/EEZ within the strait
that vessels may use.
When applicable. – Provisions for transit passage will apply o Hence, in this student’s opinion, the strait
given the following: cannot have bodies of water not
 The strait is used for international navigation (i.e. covered by the territorial sea of any
provides access between a high sea/EEZ and bordering state.
another high sea/EEZ); (Art. 37)
 Such use is an unavoidable consequence of
convenience of navigation (i.e. there is no other
route of similar convenience); (Art. 36)
 The strait lies within the territorial seas of
bordering states; (implied from the exception in
Art. 36, infra.; see discussion in the illustrations)
 The vessel traverses a strait in a continuous and
expeditious manner. (Art. 37 [2])

When not applicable. – No right of transit passage exists in

the following instances:
 Strait is not used for international navigation;
(Art. 37)
 Passage through the strait is regulated by a long-
standing international convention; (Art. 35 [c])
 Another route of similar convenience exists in the
high seas or exclusive economic zone lying within
the strait; (Art. 36) (because in such cases,
Fig.
In this next illustration, there can be no transit passage
because “there exists through the strait a route through the
high seas or through an exclusive economic zone of similar
convenience” (Art. 36). The vessel can thus pass

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PUBLIC INTERNATIONAL LAW
through the strait using high sea/EEZ waters by invoking
freedom of navigation (“constituting a route of similar
convenience”), eliminating the need to use transit passage.
Duties of states bordering straits used for international
navigation. – Bordering states have the following
obligations under the regime of transit passage:
 Not to impede or hamper transit passage; (Art. 38
[1]; 44)
 Give appropriate publicity to any danger to
navigation or overflight within or over the strait of
which they have knowledge. (Art. 44)
No suspension of transit passage. – Unlike in innocent
passage (supra, p. 41), transit passage cannot be suspended
unilaterally. (Art. 44)
Transit passage is basically “non-suspendible
innocent passage.”
CLASS NOTES
Duties of vessels in transit passage. – Ships and aircraft,
while exercising the right of transit passage, shall:
a) proceed without delay through or over the strait;
b) refrain from any threat or use of force against the
sovereignty, territorial integrity or political
independence of bordering states, or in any other
manner in violation of the principles of
international law embodied in the UN Charter;
and
c) refrain from any activities other than those
incident to their normal modes of continuous and
expeditious transit unless rendered necessary by
force majeure or by distress;
For Ships:
 comply with generally accepted international
regulations, procedures and practices for safety
at sea, including the International Regulations for
Preventing Collisions at Sea;
 Comply with generally accepted international
regulations, procedures and practices for the
prevention, reduction and control of pollution
from ships.
For Aircraft:
 observe the Rules of the Air established by the
International Civil Aviation Organization as they
apply to civil aircraft; state aircraft will normally
comply with such safety measures and will at all
times operate with due regard for the safety of
navigation;
 At all times monitor the radio frequency assigned
by the competent internationally designated air
traffic control authority or the appropriate
international distress radio frequency. (Art. 39)
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Authorization for research and survey activities. – Prior
authorization from the bordering states is required for
foreign vessels, including marine scientific research and
hydrographic survey ships, to carry out any research and
survey activities during transit passage. (Art. 40)
Sea lanes and traffic separation schemes. – Bordering
states may designate sea lanes and prescribe traffic
separation schemes for navigation in straits where
necessary to promote the safe passage of ships. (Art. 41 [1])
They shall:
 Such schemes shall conform to generally
accepted international regulations; (Art. 41 [3])
and
 Must be indicated on charts and given due
publicity. (Art. 41 [6])
Such designation or prescription, upon referral by a
bordering state, is subject to:
1. adoption by the competent international
organization; and
2. agreement by the bordering states (Art. 41 [4])
Laws and regulations by coastal state. – A bordering state
may adopt laws and regulations relating to innocent
passage relating to any or all of the following:
a) the safety of navigation and the regulation of
maritime traffic;
b) the prevention, reduction and control of
pollution, by giving effect to applicable
international regulations regarding the discharge
of oil, oily wastes and other noxious substances in
the strait;
c) with respect to fishing vessels, the prevention of
fishing; and
d) the loading or unloading of any commodity,
currency or person in contravention of the
customs, fiscal, immigration or sanitary laws and
regulations of States bordering straits.
The coastal state must give due publicity to such laws and
regulations.
Flag state/state of registry liability. – Violation of the
bordering state’s laws and regulations and other UNCLOS
provisions imputes international responsibility on the flag
state of a ship or the state of registry of an aircraft for any
resulting loss or damage to the bordering states. (Art. 42)
Q: Why cannot we simply rely on the right to
innocent passage over territorial seas in passing
through the straits? Why bother with transit
passage?
Application of the regime of innocent passage to
situations covered by transit passage (i.e. passage
through a strait where there is no other route of
similar convenience) would give a coastal state the
power to suspend passage over critical straits used
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PUBLIC INTERNATIONAL LAW A2015

Corfu Channel is a strait where right of passage exists.

for international navigation – a power not given to
coastal states under the regime of transit passage. The test in determining whether a body of water is a strait
as contemplated in international law is:
Imagine the implication to international navigation if  Its geographical situation as connecting two parts of
Spain or Morocco were given the power to restrict the high seas; and
passage over the Strait of Gibraltar – the body  The fact of its being used for international navigation.
connecting the Mediterranean Sea to the Atlantic
Ocean. The volume of traffic passing through the strait is not so
much of a criterion. Also, it was shown that it is an
Q: How does transit passage differ from innocent important route between the Aegean and Adriatic seas
passage? used by vessels of different flags, both merchant and
Transit Passage Innocent Passage military.
Navigation, overflight Navigation only
Warships have a right to transit passage in times of peace.
Submarines in normal Submarines surfaced and
mode showing flag
States in time of peace have a right to send their warships
Cannot be suspended Can be temporarily
through straits used for international navigation between
suspended
two parts of the high seas without the previous
Sea lanes/traffic separation Sea lanes/traffic separation
authorization of a coastal state, provided that passage is
schemes subject to IO only need to take into
innocent.
adoption and agreement account IO
among bordering states recommendations
While Albania may have been justified in issuing regulations
with respect to the passage of warships, it could not
prohibit such passage or in subjecting it to the requirement
CORFU CHANNEL CASE of special authorization.
ICJ Reports 1949, p. 4 (1949), supra.

The allegation that the Royal Navy ships’ conduct

(supra. For a discussion on the other aspects of the
decision, refer to p.15)
(The following discussion pertains to the first of three
incidents in the Corfu Channel, i.e. Albania prohibited Royal
Navy ships from passing through Corfu Channel and the
former fired on the latter during passage.)
threatened Albanian security is without basis. The ships
passed through the channel in a straight line formation, and
guns were not loaded in in proper stowage position. It was
only when the mines exploded (second incident) that the
group went into combat formation, which was a natural
reaction thereto.

UK:  Innocent passage through straits is a right

under international law
Albania:  While Corfu Channel is a strait
geographically, it is not an international
highway where right of passage exists
because:
o It is not a necessary route between
two high seas;
o Hardly used in international
navigation; used exclusively for local
traffic.
 Foreign warships have no right to pass
through Albanian territorial waters without
prior authorization from Albania;
o Having been at war with Greece at the
time, it had a right to restrict the
passage of warships;
o The Royal Navy ships sailed in combat
formation, and number of guns and
ships used betrayed an absence of
innocence and showed an intention to
intimidate Albania
ARCHIPELAGOS
Archipelago, Defined
It is a group of islands, including parts of islands
interconnecting waters and other natural features which
are so closely interrelated that such islands, waters and
natural features form an intrinsic geographical, economic
and political entity, or which historically have been
regarded as such. (Art. 46 [b])
Archipelagic State
It is a state made up wholly of one or more archipelagos. It
may include other islands. (Art. 46 [a])
Straight Archipelagic Baselines; How Drawn
An archipelagic state may draw straight baselines by joining
the outermost points of the outermost islands and drying
reefs of the archipelago. (Art. 47 [1])
Limitation in drawing straight baselines. –

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PUBLIC INTERNATIONAL LAW
1) Within such baselines, the main islands must be
included and an area in which the ratio of the area
of the water to the area of the land, including
atolls is between 1:1 and 9:1; (ibid.)
2) Baselines shall not exceed 100 nautical miles;
(Art. 47 [2])
3) Baselines drawn shall not depart to any
appreciable extent from the general
configuration of the archipelago; (Art. 47 [5])
(Refer to Art. 47 for other limitations)
The breadths of the following maritime zones are measured
from the archipelagic baselines:
 Territorial sea
 Contiguous zone
 Exclusive economic zone
 Continental shelf (Art. 48)
Archipelagic Waters
This refers to the waters enclosed by the archipelagic
baselines, regardless of their depth or distance from the
coast. (Art. 49 [1])
Archipelagic State Has Sovereignty
The sovereignty of the archipelagic state extends to the
archipelagic waters, its superadjacent airspace, bed and
subsoil, and the resources contained therein. (Art. 49 [1; 2])
Right of Innocent Passage over Archipelagic Waters
Ships of all states have the right of innocent passage
through archipelagic waters as it applies to territorial seas
(supra. p. 47). (Art. 52)
Right may be suspended. – the archipelagic state may
temporarily suspend the right of innocent passage subject
to the following conditions:
1. only with respect to specified areas of the
archipelagic waters;
2. if it is essential for the protection of the security of
the state; and
3. without discrimination among foreign ships. (Art. 52
[2])
Note that what can be suspended is the right of
innocent passage over archipelagic waters, NOT the
right of archipelagic sea lanes passage.
CLASS NOTES
Right of Archipelagic Sea Lanes Passage
It is the right of all foreign ships and aircraft to have
continuous, expeditious and unobstructed passage in
designated sea lanes and air routes through or over
archipelagic waters and the adjacent territorial sea of the
archipelagic state, (Art. 53 [1])
Such passage contemplates “transit between one part of
the high seas or an EEZ and another part of the high seas or
an EEZ.” (Art. 53 *3+)
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All ships and aircraft are entitled to this right. (Art. 53.2)
These include warships and submarines. Navigation of such
ships is meant to be in “normal mode”; as such, submarines
need not surface (unlike in innocent passage.)
No suspension of archipelagic sea lanes passage. – Like in
transit passage (supra, p. 47), archipelagic sea lanes passage
cannot be suspended unilaterally. (Art. 54, applying 44)
Archipelagic sea lanes passage may not suspended by
the archipelagic state. This differs from the right of
temporary suspension granted to archipelagic states
with respect to right of innocent passage over
archipelagic waters.
CLASS NOTES
Designation of sea lanes and air routes. – It is the
archipelagic state that designates sea lanes and air routes,
and prescribes traffic separation schemes, subject to the
approval of a competent international organization (i.e.
International Maritime Organization). (Art. 53 [9])
If the archipelagic state does not designate such lanes or
routes, ships and aircraft may exercise the right through the
routes normally used for international navigation. (Art. 53
[12])
Application of Rules of Transit Passage. – The rules of
transit passage governing the following apply to
archipelagic sea lanes passage: (Art. 54)
 Duties of vessels in transit passage (Art. 39) (supra. p.
47)
 Authorization for research and survey activities (Art.
40) (supra. p. 47)
 Laws and regulations by coastal state. (Art. 42)
(supra. p. 47)
 Duties of states bordering straits used for
international navigation. (Art. 44) (supra. p. 47)
Q: How does archipelagic sea lanes passage differ
from transit passage?
Archipelagic Sea Lanes Transit Passage
Passage
Navigation; Overflight
Purpose of continuous, expeditious and unobstructed
transit
Submarines in normal mode
Cannot be suspended
Over archipelagic waters Over straits used for
and superadjacent airspace international navigation
and superadjacent airspace
Sea lanes/traffic separation Sea lanes/traffic separation
schemes subject to IO schemes subject to IO
adoption and agreement adoption and agreement
between IO and among bordering states
archipelagic state
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PUBLIC INTERNATIONAL LAW
Other Rights With Respect to Archipelagic Waters
 Rights under existing agreement on the part of the
third states should be respected by the archipelagic
state; (Art. 51 [1])
 Archipelagic state shall recognize traditional fishing
rights and other legitimate activities of the
immediately adjacent neighboring states; and (Art. 51
[1])
 Respect existing submarine cables laid by other
States and passing through its waters without making
a windfall. (Art. 51 [2])
UNCLOS rules on archipelagos and archipelagic waters
present significant concerns for the Philippines:
 It reduces Philippine territorial waters to 12
nautical miles from the archipelagic
baselines (from all the waters within the
baselines under the RA 3046 or the old
baselines law)
 Philippine archipelagic waters are subjected
to archipelagic sea lanes passage, which
conflicts with the Philippine Constitution’s
treatment of such waters as “internal waters
of the Philippines,” (which precludes the
application of innocent passage).
These objections were passed upon by the Supreme
Court in the case of Magallona v. Executive Secretary.
(supra., p. 39)
CLASS NOTES
CONTIGUOUS ZONE
UNCLOS, Art. 19.
Contiguous zone
1. In a zone contiguous to its territorial sea,
described as the contiguous zone, the coastal State
may exercise the control necessary to:
a) prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations
within its territory or territorial sea;
b) punish infringement of the above laws and
regulations committed within its territory or
territorial sea.
2. The contiguous zone may not extend beyond 24
nautical miles from the baselines from which the
breadth of the territorial sea is measured.
Contiguous Zone, Defined
It is a maritime zone adjacent to the territorial sea where
the coastal state may exercise protective jurisdiction,
whose breadth extends up to a limit not exceeding 24
nautical miles from a coastal state’s baselines.
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Protective Jurisdiction; Not Sovereignty
A coastal state does not have sovereignty over the
contiguous zone, and instead may only exercise jurisdiction
for particular purposes laid down by UNCLOS.
Such protective jurisdiction may only be exercised by the
coastal state for:
a) Prevention of infringement, and
b) Punishment of infringement of customs, fiscal,
immigration or sanitary laws and regulations.
(Art. 19)
The concept of the Contiguous Zone was based on the
historical extent of a coastal state’s sovereignty is that
“within the reach of a cannonball.” This exercise of
limited protective jurisdiction was deemed
necessary in order to combat smuggling.
CLASS NOTES
CONTINENTAL SHELF
UNCLOS, Art. 76.
Definition of the continental shelf
1. The continental shelf of a coastal State comprises
the seabed and subsoil of the submarine areas that
extend beyond its territorial sea throughout the
natural prolongation of its land territory to the
outer edge of the continental 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 the continental
margin does not extend up to that
distance.
Continental Shelf, Defined
It is the seabed and subsoil of the submarine areas
extending beyond the territorial sea of the coastal state
throughout the natural prolongation of its land territory up
to:
1) A distance of 200 nautical miles from the
baselines of the territorial sea where the outer
edge of the continental margin does not extend
up to that distance; OR
2) The outer edge of the continental margin.
Continental Margin
It is the submerged prolongation of the land mass of the
coastal state, consisting of the:
 Continental Shelf Proper
 Continental Slope
 Continental Rise (Art. 76 [3])
Re: 1)
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PUBLIC INTERNATIONAL LAW
Fig..
Re: 2)
Continental margin Continental shelf will extend
extends more than 200 up to the outer edge of the
nautical miles: continental margin
Outer Edge of the Continental Margin. – It shall be
determined using either of the following: (Art. 76 [4])
The lines drawn using either of the two options stated
above must not exceed:
A. 350 nautical miles from the baselines; (Point A) OR
B. 100 nautical miles from the 2500 meter isobath (i.e.
the point where the waters are 2500 meters deep)
(Point B)
Fig..
Rights of the Coastal State
Natural resources. – The coastal state exercises exclusive
sovereign rights over the continental shelf for the purpose
of exploring it and exploiting its natural resources. (Art. 77
[1])
They are exclusive in the sense that if the coastal state does
not explore the continental shelf or exploit its resources, no
one may undertake such activities without its express
consent. (Art. 77 [2])
These exist as inherent rights, “ipso facto and ab initio, by
virtue of its (coastal state’s) sovereignty over the land, and
as an extension of it in an exercise of sovereign rights.”
(North Sea Continental Shelf Case, infra.) They are an
“emanation from and an automatic adjunct of the
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Continental margin Continental shelf will extend
extends less than 200 up to the maximum 200
nautical miles nautical miles (by provision
of UNCLOS)
territorial sovereignty of the coastal state.” (Aegean Sea
Continental Shelf Case, infra.)
Natural resources covered. – The coastal state has rights
over the following natural resources:
 Mineral and other non-living resources of the
seabed and subsoil;
 Living organisms belonging to sedentary species
(i.e. organisms which, at the harvestable stage,
either are immobile on or under the seabed or are
unable to move except in constant physical
contact with the seabed or the subsoil.)
Artificial Islands, Installations and Other Structures. – The
rights of the coastal state with regard to artificial islands,
installations and other structures on the continental shelf
are the same as those of coastal states in EEZs.(Art. 80)
(refer to Art. 60, infra. p. 59)
Drilling. – The coastal State shall have the exclusive right to
authorize and regulate drilling on the continental shelf for
all purposes. (Art. 81)
Marine Scientific Research. – This may only be conducted
on the continental shelf with the consent of the coastal
state. (Art. 242 [2])
Does Not Affect the Legal Status of the
Superadjacent Waters and/or Airspace
Note that the continental shelf pertains to the “seabed and
subsoil of submarine areas”, and does not involve the
superadjacent waters and/or airspace. As such, the coastal
state’s rights over the shelf do not affect the legal status of
the superadjacent waters or of the airspace above them.
(Art. 78 [1])
Hence, such rights must be exercised that does not infringe
the freedoms of other states provided for by UNCLOS (e.g.
navigation and overflight, right to law submarine cables and
pipelines [Art. 79])
Right to Law Submarine Cables and Pipelines
All States are entitled to lay submarine cables and pipelines
on the continental shelf.
Non-interference by coastal state. –
General Rule: Coastal state may not impede the laying
or maintenance of such cables or
pipelines
Exception: The coastal state may do the following:
1) Take reasonable measures for
a. Exploration of the continental
shelf;
b. Exploitation of natural
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PUBLIC INTERNATIONAL LAW A2015

resources; In making delimitations, the factors to be taken into account

c. Prevention, reduction and control
of pollution from pipelines
2) (For pipelines) Give/withhold consent
with regard to the route of such
pipelines.
Q: What are the differences in rights and duties
existing between the continental shelf and the
exclusive economic zone given that both extend
200 nautical miles from the baseline?
Continental Shelf EEZ
Rights over living and non- Rights over mineral and
living resources, excluding non-living resources, and
sedentary species sedentary species
Rights to resources of the Rights to resources of the
superadjacent waters, seabed and subsoil only.
seabed and subsoil
Duty of the coastal state to
- conserve or share
resources
NORTH SEA CONTINENTAL SHELF CASES
(GERMANY v. DENMARK; GERMANY v.
NETHERLANDS)
ICJ Reports 1969, p.5 (1969), supra.
were to include:
 the general configuration of the coasts of the parties,
as well as the presence of any special or unusual
features;
 so far as known or readily ascertainable, the physical
and geological structure and natural resources of the
continental shelf areas involved;
 the element of a reasonable degree of proportionality
between the extent of the continental shelf areas
appertaining to each state and the length of its coast
measured in the general direction of the coastline,
taking into account the effects, actual or prospective,
of any other continental shelf delimitations in the
same region.
CASE CONCERNING THE CONTINENTAL SHELF
(LIBYA v. MALTA)
ICJ Reports 1985, p. 13. (1985)
By a Special Agreement, Libya (a North African state) and
Malta (an island state in the Mediterranean Sea) submitted
their dispute concerning the delimitation of the continental
shelf between them to the ICJ.

(supra. For a more exhaustive discussion, refer to p. 7)

The delimitation is to be accomplished by using an

equitable solution, effected by use of equitable principles
and taking into account all relevant circumstances.
Points to remember:
The Court applied the Article 83 UNCLOS, which was not yet
effective at the time but had been already been adopted by
There is no rule of customary international law requiring
an overwhelming majority of states (hence taken as
the use of the equidistance principle.
evidence of customary international law). It called for “an
equitable solution” in the delimitation of

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PUBLIC INTERNATIONAL LAW A2015

line from the low-water marks of the Libyan and Maltese

continental shelves. This provision sets the goal to be coasts which constitutes the provisional first step.
achieved, but is silent as to the method to be used.
Next, the Court used the following relevant circumstances
Libya’s rift-zone argument was rejected. The court noted for the purpose of adjusting the provisional line in order to
that according to the UNCLOS, a state is entitled to claim a arrive at an equitable result:
continental shelf of up to 200 nautical miles, irrespective of
 Coastal lengths of parties; – The relevant portion of
the outer limit of the continental margin. Geophysical
the coast of Libya 192 miles long, while Malta’s is only
factors only come into play when the continental margins
24 miles. This difference is so great as to justify the
exceed 200 nautical miles. In the instant case, the distance
adjustment of the median line closer to Malta;
from the Libyan to the Maltese coasts does not exceed 400
 Distance between the coasts;
nautical miles; hence each state’s claim cannot exceed
 Placement of basepoints governing any equidistance
200 nautical miles each. Thus, the situation where
line;
geophysical factors (e.g. rift zones) can terminate the extent
 General geographical context.
of claims does not arise.
The court thus arrived at the following delimitation line, as
The principle of proportionality of coastlines as advanced by
illustrated:
Libya is not a general principle providing an 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.

Neither is equidistance a method which MUST be used. The

court did not see any state practice that proves the
existence of a rule prescribing the use of equidistance. The
particular circumstances of the case may still require the
adoption of other methods and the application of equitable
principles.

Examples of equitable principles that may be applied are:

 Principle that there is to be no refashioning of
geography or compensating of inequalities of
nature;
 Non-encroachment of natural prolongations;
AEGEAN SEA CONTINENTAL SHELF CASE
 Equity does not imply equality; ICJ Reports 1978, (1978)
 That there is no question of distributive justice.
There is no legal limit as to the considerations which states
may take into account. However, only those pertinent to
the case will qualify for inclusion.

The court refused to consider the following:

 Landmass;
 Economic positions of the parties;
 Security and defense factors;
 Equality of states

In arriving at an equitable solution to the delimitation, the

process should be done in stages:
1. First, draw a provisional line;
2. Second, examine the provisional line using
equitable principles;
3. Third, correct the initial result accordingly. Turkey granted petroleum exploration permits in the
Aegean Sea over areas of seabed that Greece claimed
In the instant case, the Court found that the equidistance belonged to its islands. Greece took this as a unilateral
method is an equitable method which can be used in cases delimitation of the Aegean continental shelf, and thus
where the delimitation is to be effected between states instituted this present action.
with opposite coasts. It is thus the drawing of a median

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PUBLIC INTERNATIONAL LAW
Greece:  Greek islands in the Aegean are entitled to
their own continental shelves.
Turkey:  Greek islands close to the Turkish coasts do
not possess continental shelves of their own;
 The sea-bed of the Aegean geographically
forms a natural prolongation of the
Turkish land mass; hence the Turkish
continental shelf should extend further into
the Aegean up to the median line.
The Court does not have jurisdiction over the case; hence.
it declined to rule on the continental shelf issue.
While the Court refused to rule on the substantive
issues of the case, the controversy nonetheless
presents an interesting case of continental shelf
delimitation. This issue remains unresolved to this day.
Siding with Greece would significantly diminish
Turkey’s rights to the Aegean given their geographical
proximity. Siding with Turkey would deprive Greek
islands of its waters.
Sir’s proposed solution: Give Turkey its continental
shelf, but leave small pockets of water as Greek
territorial seas.
The Portico Doctrine in the Eritrea-Yemen Arbitration
Case (supra., p. 31) can find application here. (Karichi
Notes, citing Prof. Roque, 2010)
CLASS NOTES
ANGLO-FRENCH ARBITRATION CASE
ICJ Reports 1979, (1979)
The United Kingdom and France entered into negotiations
and s subsequent 1977 arbitration for the delimitation of
the continental shelf between them. This decision provided
for a:
 primary boundary line between the French coast and
the UK mainland coast, drawn on the basis of the
equidistance principle; (Line A) and
 12-mile UK exclave north of the Channel Islands (UK
territory), since said islands were located within the
French side of the primary boundary line. (Line B)
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UK
France
UK:  Technical issue: the chart provided for in and
the dispositif of the 1977 decision ignored
certain basepoints that should be sued in
drawing the median/equidistance line;
hence it did not reflect description in
the decision itself, which must be corrected.
France:  The mistake is but a minor inconsistency
which can be ignored;
 The dispositif must be followed;
modification is not allowed.
The changes may be effected; the boundary should be
rectified so as to take account of the base-points
previously not taken into account.
Parties agree that there is a discrepancy in the drawing of
the boundary. It was a material error which the court has
the power to rectify. The court left it to the parties to effect
a correction consistent with the decision.
Court proceeded to discuss the actual delimitation of the
continental shelf.
Equidistance-Special Circumstances Method
Article 6 of the Geneva Convention on the Continental Shelf
of 1958 provides that in the absence agreement between
the parties, the boundary between the continental shelves
of opposite states is the median line – whose every point is
equidistant from the nearest points of the baseline.
An exception to this rule is the presence of special
circumstances which would justify another boundary line.
This would call for the appreciation of special geographical
features in drawing a boundary line.
“The combined equidistance-special circumstances rule, in
effect, gives particular expression to a general norm that,
failing agreement, the boundary between States abutting
on the same continental shelf is to be determined on
equitable principles.” (verbatim)
Modified Equidistance Method
In a large proportion of delimitations, where a particular
geographical feature has influenced the course of a
continental shelf boundary, the method of delimitation
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PUBLIC INTERNATIONAL LAW
adopted has been some modification or variant of the
equidistance principle rather than its total rejection. Here
the problem also arises precisely from the distorting effect
of a geographical feature in circumstances in which the line
equidistant from the coasts of the two States would
otherwise constitute the appropriate boundary. (Karichi
Notes, 2010) (e.g. in this case, British islands lying within the
French side of the equidistance line)
The appropriate method is to take account of unique
geographical features (e.g. Channel Islands, Sicily Isles) as
part of the coastline of the UK but to give them less than
their full effect (i.e. Half-effect method) in applying the
equidistance method. Just as it is not the function of equity
in the delimitation of the continental shelf completely to
refashion geography, so it is also not the function of equity
to create a situation of complete equity where nature and
geography have established an inequity. (ibid.)
Half-effect. – This method consists in delimiting the line
equidistant between the two coasts, first, without the use
of the offshore island as a base-point, and, secondly, with
its use as a base-point; a boundary giving half-effect to the
island is then the line drawn midway between those two
equidistance lines.
In order to effect these principles, the Court divided the
delimitation into two steps:
1. First, determine the median/equidistant line
between the opposing states reckoned from their
coasts, ignoring the special geographical features
(e.g. islands); then
2. Second, delimit a second boundary line, taking
into consideration the special geographical
features
It is the line drawn midway between those
boundary lines which would give half-effect.
“Method of half-effect = proceed first as if the island
doesn’t exist, then shift the lines.” (ibid.)
This case was “a delimitation in a delimitation.”
CLASS NOTES
CASE CONCERNING MARITIME DELIMITATION
IN THE AREA BETWEEN GREENLAND AND JAN
MAYEN (DENMARK v. NORWAY)
ICJ Reports 1993, p. 38 (1993)
This case is a dispute regarding the extent of the continental
shelves of Denmark and Norway in the area between
Greenland (Danish) and the island of Jan Mayen
(Norwegian).
Denmark:  Denmark is entitled to a fisheries
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zone/continental shelf extending up to
200 nautical miles from the coast of
Greenland; a single delimitation line
should be drawn for the purpose.
Norway:  A median line drawn from equidistant
points between Greenland and Jan Mayen
is the proper boundary.
Green-
land
Jan
Mayen
The Court found that there was no agreement between the
parties to draw a single line for the delimitation of their
fisheries zone and continental shelf boundaries. Hence, it
proceeded to examine the boundaries separately.
For the continental shelf delimitation, the Court found the
1958 Geneva Convention to be the applicable law, while the
fishery zone shall be governed by the relevant customary
law. Also, the court said that special or relevant
circumstances, pursuant to the 1958 Geneva Convention
and to customary law shall be considered, to the effect that
the shifting of the provisionally drawn median line is
required.
In drawing the delimitation, the following circumstances
were taken into account:
 the disparity of length of coasts;
 the access to fishery resources.
The Court did not consider population, socio-economic
factors, and the conduct of the Parties.
The result thus reached by the Court was that the median
line between the coasts shifted in the direction of Jan
Mayen - but not as far as reaching the 200 nautical miles
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 Parties
on the basis of the decision of the Court, the Court
considered its task only fulfilled after having drawn the
concrete line. Accordingly, the Court fixed the line in the
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 particular
the access to the fishery resources.
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PUBLIC INTERNATIONAL LAW
CASE CONCERNING DELIMITATION OF
MARITIME AREAS BETWEEN CANADA &
FRANCE (ST. PIERRE AND MIQUELON)
31 ILM 1145 (1992)
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.
Its territorial maritime boundary with Canada was first
delimited by virtue of a 1972 treaty signed by both Canada
and France. Towards the 20th century, each country began
to extend their claimed territorial limit, first to 12 nautical
miles, then to 200 nautical miles; to the end that the parties’
claims began to overlap. Also, the maritime boundaries
beyond the territorial sea – the extent of the EEZ (which is
determinative of the Parties’ exclusive right to fish) –
remained in dispute.
France:  Delimitation of the continental shelf shall
be based on the equidistance principle;
Canada:  Special circumstances rule should be
applicable.
The question on which method of delimitation shall be
applied is determined primarily by the geographical
circumstances – but rules on international law as well as
equitable principles must also be taken in consideration in
order to add relevance and weight to the geographical
circumstances.
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In the case at bar, the delimitation stated with an
identification of the relevant area. The parties have agreed
on the area, but failed to settle the issue as regards the
relevant coast. In line with this disagreement (on relevant
coast), the parties took into consideration the relationship
of the coasts to each of the Parties. Canada, on the ground
of close contiguity, argues that the coasts are related to it
through the adjacency relationship. France, on the other
hand, claims on the ground of oppositeness relation. The
Court, with this issue, found that it is the adjacency
relationship which is to prevail based on two factors: the
geographical feature of the coast in dispute and historical
evidence. St. Pierre and Miquelon are laterally aligned with
the south coast of Newfoundland (in favour of Canada).
Also, historically, as proven by the 1713 Treaty of Utrecht,
St. Pierre and Miquelon are described as adjacent islands of
Newfoundland.
France was awarded with a zone which is divided in two
parts: the first sector has a boundary set by an equidistant
line between the French and Canadian islands, then an
additional 24 nautical mile drawn from the west of the
islands. The second sector is a long north-south 188-
nautical mile corridor south of the islands, which allows
France to access its EEZ from international waters without
passing through Canadian EEZ.
In effect, the delimitation awards approximately 18% of the
territory that France had initially been claiming.
CASE CONCERNING PEDRA BRANCA/PULAU
BATU PUTEH, MIDDLE ROCKS AND SOUTH
LEDGE (MALAYSIA v. SINGAPORE)
(*Note: This may be the wrong case. The outline lists
“Malaysia v. Singapore” under the topic “Continental Shelf”
without any accompanying citation. Upon asking Prof.
Roque for a citation, he said “Whatever you can find.” And
this case was the only one we could find.)
This case relates to the dispute concerning territorial
sovereignty over three maritime features in the Straits of
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Singapore. At the eastern entrance of the Strait of Singapore
is a granite island called Pedra Branca.
In 1979, Malaysia published a map entitled “Territorial
Waters and Continental Shelf Boundaries of Malaysia.” The
map depicted the island of Pedra Branca as lying within
Malaysia’s territorial waters. This was rejected by Singapore
who requested Malaysia to correct the map. In effect, the
Court considered as the critical date the time of Singapore’s
protest in response to Malaysia’s publication of the 1979
map.
Singapore argued that the legal status of Pedra Branca was
that of terra nullius, Malaysia maintained that it had an
original title to Pedra Branca of long standing. Thus, an
arising question was whether Malaysia has established its
claim over the island. In this respect, a principal issue relates
to the question whether the Sultanate of Johor—a
predecessor of Malaysia—had sovereignty over Pedra
Branca.
The Court, through the pieces of evidence considered, held
that from at least the 17th century until in the 19th century
it was acknowledged that the territorial and maritime
domain of the Kingdom of Johor comprised a considerable
portion of the Malaya Peninsula, straddled the Straits of
Singapore and included islands and islets in the area of the
Straits. Thus, such domain included the area where Pedra
Branca is located.
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 the
islands in the area of the Straits of Singapore. Hence, the
Court concluded that the Sultanate of Johor had original title
to Pedra Branca. In addition, the Court found that the
nature and degree of the Sultan of Johor’s 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 Straits of Singapore,
including Pedra Branca.
The next issue is whether Malaysia has retained sovereignty
over Pedra Branca or whether the sovereignty has since
passed to Singapore. Singapore claims that it acquired
sovereignty over Pedra Branca in 1844 when it constructed
a lighthouse on the island as well as various other activities.
This contention then brought the Court to examine the
conduct of the Parties relating to Pedra Branca.
In this context, an important element is the construction
and commissioning of Horsburgh lighthouse on Pedra
Branca by the United Kingdom between 1850-1851.
Malaysia argued that the conduct of the United Kingdom
and Singapore related only to the construction and
commissioning of the lighthouse and later operating it
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with the consent conferred by the Sultan of Johor and the
Temenggong in November 1844; and that they were not
actions intended to acquire sovereignty over Pedra Branca.
By contrast, Singapore contended that the United Kingdom
acquired title to the island in the period of 1847- 1851 by
taking lawful possession of the island in connection with
building the lighthouse on it. Note that the Court did not
draw any conclusions about sovereignty on the basis of the
construction and commissioning of the lighthouse. Thus, the
central question is whether the conduct of the Parties after
the construction of the lighthouse on Pedra Branca provides
a basis for the passing of sovereignty over the island from
Johor to the United Kingdom, Singapore’s predecessor.
The Court recalled the position of the Acting Secretary of
State of Johor in 1953 that Johor did not claim ownership of
Pedra Branca. According to the Court, “*t+hat statement
has major significance.” The Court also stressed that the
conduct of the United Kingdom and Singapore includes acts
à titre de souverain; and that Malaysia and its predecessors
did not respond in any way to that conduct. In addition to
this, the Johor authorities and their successors took no
action at all in respect to the island from June 1850 for the
whole of the following century or more. Overall, the Court
considered that the relevant facts reflect “a convergent
evolution” of the positions of the Parties concerning title to
Pedra Branca. Hence, the Court concluded, by twelve votes
to four that by 1980 sovereignty over Pedra Branca had
passed to Singapore.
ARIGO v. EXECUTIVE SECRETARY
(PETITIONERS’ PLEADING)
supra.
(For an exhaustive discussion, refer to p. 27)
EXCLUSIVE ECONOMIC ZONE
UNCLOS, Art. 55.
Specific legal regime of the exclusive economic
zone
The exclusive economic zone is an area beyond and
adjacent to the territorial sea, subject to the specific
legal regime established in this Part, under which
the rights and jurisdiction of the coastal State and
the rights and freedoms of other States are
governed by the relevant provisions of this
Convention.
UNCLOS, Art. 57
Breadth of the exclusive economic zone
The exclusive economic zone shall not extend
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PUBLIC INTERNATIONAL LAW
beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is
measured.
Exclusive Economic Zone, Defined
It is an area beyond and adjacent to the territorial sea, not
extending beyond 200 nautical miles from the baselines.
Coastal State Has Sovereign Rights and Jurisdiction;
Not Sovereignty
The coastal state does not have full sovereignty over the
EEZ (c.f. internal waters, territorial sea), but instead
possesses limited sovereign rights and jurisdiction.
Sovereign rights. – Its sovereign rights are limited to the
following purposes:
 Exploring and exploiting, conserving and
managing the natural resources
o living or non-living;
o in the superadjacent waters of the
seabed, the seabed and its subsoil;
o excluding sedentary species (Art. 68)
 Other activities for the economic exploitation and
exploration of the zone. (e.g. production of energy
from the water, currents and winds) (Art. 56 [1a])
Jurisdiction. – It has jurisdiction with regard to:
 The establishment and use of artificial islands,
installations and structures;
 Marine scientific research; and
 Protection and preservation of the marine
environment. (Art. 56 [1b])
Enforcement measures. – It has the right to enforce all laws
and regulations enacted for the conservation and
management of living resources in the EEZ. It may:
 Board and inspect a ship
 Arrest a ship and its crew;* and
 Institute judicial proceedings against them.* (Art.
73 [1])
*Flag state must be promptly notified of action taken and
penalties imposed.
Arrested vessels and their crews shall be promptly released
upon the posting of bond or security. (Art. 73 [2])
In the absence of agreement to the contrary by the states
concerned, coastal state penalties for violations of fisheries
laws in their EEZ may not include imprisonment or any
other form of corporal punishment. (Art. 73 [3])
Conservation, Utilization and Management of
Living Resources within the EEZ
The coastal state has the following primary responsibilities
with regard to the living resources within the EEZ;
 Conservation. – Duty to ensure through proper
conservation and management measures that
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the living resources are not endangered by over-
exploitation; (Art. 61)
 Optimum Utilization. – Duty to promote the
objective of optimum utilization of the living
resources and, to this end, to determine the
allowable catch of such resources in relation to its
capacity to harvest the allowable catch. (Art. 62)
Conservation. – The coastal state’s objectives with regard
to conservation are as follows:
 Determination of the allowable catch of living
resources; (Art. 61 [1])
o Allowable catch: catch in any one year
which will best achieve the objectives of
the coastal state’s conservation
objectives
o No limit; except by the duty not to
overexploit.
 Maintenance of the living resources in such a way
that they are not endangered by over-
exploitation; (Art. 61 [2])
 Maintenance or restoration of population of
harvested species at levels which can produce the
maximum sustainable yield; and (Art. 61 [3])
Maximum sustainable yield: level of
harvesting a species of fish which can be
taken at a maximum from year to year
without depleting the stock.
 Maintenance of associated or dependent species
above levels at which their reproduction may
become seriously threatened. (Art. 61 [4])
Utilization. – The coastal state must determine its capacity
to harvest the living resources in the EEZ.
In the event that it does not have the capacity to harvest
the entire allowable catch, it shall give other states access
to the surplus of the allowable catch by means of UNCLOS-
consistent agreements and arrangements. (Art. 62 [2]) In
doing so, the following factors shall be considered:
 Its own economic and other national interests;
 Requirements of developing states in the region;
 The need to minimize economic dislocation in
States whose nationals have habitually fished in
the EEZ or which have made substantial efforts in
the research and identification of stocks in the
EEZ. (Art. 62 [3])
In allowing other states access to living resources, the
coastal state may regulate the following matters:
a) Licensing of fishermen, fishing vessels and
equipment, and the payment of fees;
b) Determination of species which may be caught,
and fixing quotas of catch;
c) Regulation of seasons and areas of fishing, the
types, sizes and amount of gear and fishing
vessels that may be used;
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PUBLIC INTERNATIONAL LAW
d) Fixing the age and size of fish that may be caught;
e) Specifying of information required of fishing
vessels, including catch and effort statistics and
vessel position reports;
f) Requiring, under the authorization and control of
the coastal State, the conduct of specified
fisheries research programmes and regulating the
conduct of such research;
g) Placement of observers or trainees on board such
vessels by the coastal State;
h) Landing of all or any part of the catch by such
vessels in the ports of the coastal State;
i) Terms and conditions relating to joint ventures or
other cooperative arrangements;
j) Requirements for the training of personnel and
the transfer of fisheries technology, including
enhancement of the coastal State's capability of
undertaking fisheries research;
k) Enforcement procedures. (Art. 62 [4])
Rights of Land-Locked States and Geographically
Disadvantaged States to EEZ Resources
A land-locked state (LLS) is one which does not border the
sea and therefore do not have an EEZ.
A geographically disadvantaged state (GDS) is a coastal
state which can claim no EEZ of its own, or one whose
geographical situations make them dependent on the
exploitation of the living resources of the EEZ or other
coastal states. (Art. 70 [2])
Right of LLS/GDS to EEZ resources of coastal states. –
General Rule: An LLS/GDS has the right to participate, on
equitable basis, in the exploitation of the
surplus of living resources in the EEZ of
coastal states of the same sub-region or
region. (Art. 69 [1], 70 [1])
Exception: Right does not apply in the case of a coastal
state whose economy is overwhelmingly
dependent on
exploitation of the resources in its EEZ.
(Art. 71)
This right is non-transferrable to third states or their
nationals through, among others, lease, license, joint
venture, unless otherwise agreed upon by the states
concerned. (Art. 72.1)
This right only pertains to the surplus of a coastal state’s
allowable catch. (Art. 69 [1], 70 [1]) If a coastal state should
thereafter approach a point when it can harvest up to the
allowable catch:
 The right can no longer be exercised;
 BUT, the coastal state shall be duty-bound to
cooperate in establishing equitable arrangements
to allow the participation of a DEVELOPING
LLS/GDS in the exploitation of resources. (Art. 69
[3], 70 [4])
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Terms of LLS/GDS participation in the EEZ. – These terms
shall be established by the states concerned through
bilateral, sub-regional or regional agreement/s, which shall
take into account the following:
a) The need to avoid effects detrimental to fishing
communities or fishing industries of the coastal
State;
b) The extent to which the LLS/GDS is participating
or is entitled to participate;
c) The consequent need to avoid a particular burden
for any single coastal State or a part of it;
d) The nutritional needs of the populations of the
states concerned. (Art. 69 [2], 70 [2])
Artificial Islands, Installations and Other Structures
General Rule: A coastal state has the exclusive right to
construct, authorize and regulate the
construction, operation and use of
artificial islands, installations and other
structures in the EEZ, pursuant to its
jurisdiction under Article 56 (supra). (Art.
60 [1])
Exception: They may not be established where they
may interfere with the use of recognized
sea lanes essential to international
navigation. (Art. 60 [7])
Jurisdiction. – The coastal state’s jurisdiction over artificial
islands, installations and other structures is exclusive. It
may exercise the same with respect to laws and regulations
over the following matters:
 Customs;
 Fiscal;
 Health;
 Safety; and
 Immigration (Art. 60 [2])
Q: Do artificial islands, installations and structures
constructed in the EEZ have the status of islands
in international law?
No, they do not possess the status of islands. They have
no territorial sea of their own, and their presence does
not affect the delimitation of the territorial sea, the
EEZ or the continental shelf. (Art.
60 [8])
Marine Scientific Research
While not mentioned in the UNCLOS section on the EEZ, the
following principles are applicable on the conduct of marine
scientific research in the EEZ:
 The search shall be conducted with the consent
of the coastal state;
 It shall be conducted exclusively for peaceful
purposes;
 It shall not unjustifiably interfere with activities
of the coastal states in the exercise of their
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PUBLIC INTERNATIONAL LAW A2015

rights and jurisdiction under the UNCLOS; (Arts.

240, 246)

Rights of coastal states with respect to marine scientific

research. – Coastal states may withhold their consent to the
conduct of a research project under the following
conditions:
1) If it is of direct significance to the exploration and
exploitation of natural resources;
2) If it involves drilling or use of explosives or other
harmful substances in the marine environment;
3) If it involves the construction, operation or use of
The Spanish fishing vessel “The Estai” was boarded and its
artificial islands, installations or structures;
master arrested around 245 miles from the Canadian coast
4) If it contains inaccurate information regarding the
by Canadian Government vessels for violating Canada’s
nature and objectives of the research project; or
Coastal Fisheries Protection Act. This law prohibited fishing
5) If the proponent state or organization has
by foreign vessels (e.g. Spanish vessels) within the North
outstanding obligation to the coastal state for a
Atlantic Fisheries Organization [NAFO] Regulatory Area – an
prior research project (Art. 246 [5])
area in the high seas defined by the “Convention on Future
Multilateral Cooperation in the Northwest Atlantic
They also have the following rights:
Fisheries, 1978”.
 Right to be provided with information about the
research project (Art. 248)
Spain:  Canada does not have jurisdiction over
 Right to participate or be represented therein
foreign vessels in the high seas, outside its
EEZ. The flag state has exclusive jurisdiction
(Art. 249 [1a])
over vessels flying its flag in the high seas.
 Right to be provided with preliminary reports and
 Canada’s boarding of “Estai” was a violation
final results, and access to all data and samples
of international law on concerning freedom
derived therefrom. (Art. 249 [1b and c])
of navigation and
 Right to suspend or stop research activities in freedom of fishing on the high seas
the EEZ.

Rights and Duties of Other States in the EEZ
In the EEZ of coastal states, all states enjoy the following
freedoms of the high seas: (Art. 87, infra, p.63)
 Navigation and overflight;
 Laying of submarine cables and pipelines.
Nonetheless, states shall have due regard to the rights and
duties of the coastal state and shall comply with the latter’s
laws and regulations. (Art. 58)
FISHERIES JURISDICTION (SPAIN v. CANADA)
ICJ Reports 1998, p. 432 (1998)
(*Note: With respect to the case, the outline contains a
notation, “FACTS ONLY.”)
Canada:  Court has no jurisdiction over the case.
The Court decided in favor of Canada when it ruled that it
had no jurisdiction to hear the case as it fell under Canada’s
reservation to ICJ jurisdiction under Article 36.
The doctrinal value of the case is its statement on what in
international law may be regarded as “conservation and
management measures”. Accordingly, only two types of
measures taken by a coastal State may be regarded as such:
1. Those relating to the State's exclusive economic zone;
and
2. Those relating to areas outside that zone, in so far as
these came within the framework of an international
agreement or were directed at stateless vessels.
Measures not satisfying these conditions were not
conservation and management measures but unlawful acts
pure and simple.

THE M/V “SAIGA” (NO. 2) CASE (ST. VINCENT

AND THE GRENADINES v. GUINEA)
ITLOS Judgment, July 1, 1999

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PUBLIC INTERNATIONAL LAW A2015

The Tribunal refuted “public interest and necessity” claim,

holding that such notion would curtail the rights of other
States in the exclusive economic zone. The Tribunal is
satisfied that this would be incompatible with the
provisions of articles 56 and 58 of the Convention regarding
the rights of the coastal State in the exclusive economic
zone.

Accordingly, the arrest and detention of the Saiga, the

prosecution and conviction of its Master, the confiscation of
the cargo and the seizure of the ship were contrary to the
Convention.
M/V Saiga is an oil tanker provisionally registered in Saint
Vincent and the Grenadines (SVG). Saiga travels by sea to
sell gas oil as bunker and occasionally they also cater to or THE “CAMOUCO” CASE (PANAMA v. FRANCE)
sell oil to fishing and other vessels of the coast of West ITLOS Judgment, February 7, 2000
Africa.
French authorities in the EEZ of the Crozet Islands arrested
Saiga supplied gas oil to fishing vessels located in waters
“Camouco”, a Panamian vessel for long-line bottom fishing
near Guinea. Later, when the vessel was near the southern
of Patagonian toothfish in South Atlantic international
limit of Guinea’s EEZ, Guinean authorities attacked and
waters. The Camouco’s Master was charged unlawful
arrested the Saiga and its Master and crew, on the ground
fishing in the Crozet islands’ EEZ and put under court
that it illegally imported oil within the Guinean customs
supervision at Saint-Denis (French territory).
radius in violation of its laws.
A local French court confirmed the arrest of the Camouco
St. Vincent  Art. 56 of the Convention does not give
and its master. It also ordered a bond in the amount of
and the the right to Guinea to extend the
20,000,000 Francs to be paid for the release of the vessel.
Grenadines: application of its customs laws and
The Camouco’s owner subsequently appealed this decision.
regulations to its EEZ;
 Guinea violated its rights to enjoy the This prompted Panama to bring an action before the
freedom of navigation or other
International tribunal for the Law of the Sea.
internationally lawful uses of the sea in
the EEZ, since the supply of gas oil by the
Panama:  Camouco and its Master should be
Saiga falls within the exercise of
promptly released upon payment of a
those rights.
bond, pursuant to Art. 292 of the UNCLOS;
Guinea:  Expansion of jurisdiction in EEZ is  France failed to notify them of the arrest.
justified on the ground of public interest  The bond price set by France was
and self-protection; unreasonable
 Customary international law principle of
France:  Panama has not yet paid the bond; hence
“public interest” and “necessity” gives it
it cannot invoke Art. 292 yet;
the power to impede “economic
 Panama should first exhaust its remedies
activities that are undertaken in its EEZ
before French courts;
under the guise of navigation.
 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
invocation.
contrary to the Convention.
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
may be violations of the Art. 292 even before the payment
and regulations in the territorial sea and the contiguous
zone, such right is qualified with respect to its Exclusive of the bond. In this case, the unreasonable bond amount
imposed by French courts was a cause for which reason
Economic Zone (EEZ). In its EEZ, the coastal state has
jurisdiction to apply customs laws and regulations only with Panama can invoke Art. 292.
respect to artificial islands, installations and structures (Art.
60, par. 2). The Convention does not empower a coastal No need to exhaust local remedies
State to apply its customs laws in respect of any other parts Moreover, local remedies need not be exhausted in order
of the exclusive economic zone not mentioned above. to file an application because Art. 292 is intended to provide
for an independent remedy within a short period.

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PUBLIC INTERNATIONAL LAW
Art. 292 is designed to free a ship and its crew from
prolonged detention on account of the imposition of
unreasonable bonds in municipal jurisdictions, or the failure
of local law to provide for release on posting of a reasonable
bond, inflicting thereby avoidable loss on a ship owner or
other persons affected by such detention. Furthermore, it
safeguards the interests of a coastal State by providing for
release only upon the posting of a reasonable bond or other
financial security determined by a court or tribunal referred
to in Art. 292, without prejudice to the merits of the case in
the domestic forum against the vessel, its owner or its crew.
Bond demanded by France was excessive; should only be 8
million Francs
The value of the vessel alone may not be a controlling factor
in the determination of the bond, the overall circumstances
of the case must be considered.
The 20 million-Franc demand was found unreasonable.
Instead, the tribunal set the bond in the amount of 8 million
Francs.
“Mustn’t submit vessels guilty of illegal fishing to
incarceration, but must promptly release them upon
the posting of a cash bond.” (Karichi Notes, citing Prof.
Roque, 2010)
Art. 292 is an independent remedy that requires no
exhaustion of local remedies.
CLASS NOTES
DELIMITATION OF MARITIME
BOUNDARIES
Delimitation, Defined
Delimitation is a process which involves establishing the
boundaries of an area already, in principle, appertaining to
the coastal state. It is not the determination de novo of such
an area (i.e. not created out of nothing); rather, it is a
process of drawing a boundary line between areas which
already appertain to one or other of the states affected.
(North Sea Continental Shelf Case, supra., p. 7)
It always has an international aspect; it cannot be
dependent merely upon the will of the coastal state as
expressed in its municipal law. Its validity is hinged on
international law. (Anglo-Norwegian Fisheries Case, supra.,
p. 8)
Rules on Delimitation of the Territorial Sea
between States with Opposite or Adjacent Coasts
General Rule: Left to the agreement between opposite
or adjacent coasts;
In the absence of agreement, the
equidistance rule applies: neither state is
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entitled to extend its territorial sea
beyond the median line, every point of
which is equidistant from the nearest
points on the baseline from which the
breadth of the territorial sea is measured.
Exception:Equidistance rule shall not apply and a
different delimitation is required in the
following cases:
 Historic title;
 Other special circumstances. (Art.
15)
Rules on Delimitation of EEZ and the Continental
Shelf between Adjacent or Opposite States
Rule: By agreement among states on the basis
of international law “in order to achieve
an equitable solution”;
In the absence of agreement, matter shall
be subject to UNCLOS dispute
settlement measures (infra.)(Arts. 74, 83)
Negotiations must be meaningful. – Parties must enter into
negotiations with a view of arriving at an agreement. They
should not insist on their own positions, such that the
engagement amounts to mere compliance with a formal
requisite.
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 acts
which jeopardize or hamper efforts toward a final
agreement. (Art. 74 [3]; 83 [3])
Dispute Settlement Procedures
When no agreement is reached by the parties with regard
to territorial sea, EEZ and continental shelf boundary
limitations, the following shall be done:
 Reference to third-party settlement of disputes under
Part XV of UNCLOS;
 If the state declares an exception to acceptance of
UNCLOS dispute settlement procedures under Article
298, and the dispute arises subsequent to the entry of
force of UNCLOS and there is no agreement between
parties – dispute shall be submitted to a conciliation
commission, which shall come up with a non-binding
report on the basis of which the parties shall
negotiate an agreement;
 If they still fail to reach an agreement, they are
required to submit the dispute to a third-party
compulsory procedure (e.g. ICJ, ITLOS, arbitral
tribunals)
HIGH SEAS
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UNCLOS, Art. 86.
Application of the provisions of this Part
The provisions of this Part apply to all parts of the
sea that are not included in the exclusive economic
zone, in the territorial sea or in the internal waters
of a State, or in the archipelagic waters of an
archipelagic State. This article does not entail any
abridgement of the freedoms enjoyed by all States
in the exclusive economic zone in accordance with
article 58.
High Seas, Defined
These refer to waters which do not constitute the internal
waters, archipelagic waters, territorial sea, and exclusive
economic zone of a state. (Implied from Art. 86)
They are beyond the jurisdiction & sovereign rights of the
states.
Fundamental Principles on its Legal Status
 Freedom of the high seas. – The high seas are open
to all states and no state can validly subject any part
of the high seas to its sovereignty; (Arts. 87, 89)
 Peaceful purposes. – They are reserved for peaceful
purposes; (Art. 88)
 Freedom of navigation. – It is the right of every State
to sail ships flying its flag on the high seas. No state
can prevent ships of other states from using the high
seas for lawful purposes; (Art. 90)
 Flag state jurisdiction. – The flag state has exclusive
jurisdiction over ships sailing under its flag in the high
seas; (Art. 92) (see exhaustive discussion in
Navigation; Flag State Jurisdiction, infra., p. 65)
Freedom of the High Seas
Both coastal and land-locked states are entitled to the
following rights in the high seas, subject to conditions laid
down by UNCLOS:
1. Freedom of navigation;
2. Freedom of overflight;
3. Freedom of fishing;
4. Freedom to lay submarine cables and pipelines;
5. Freedom to construct artificial islands and other
installations;
6. Freedom of scientific research;
These freedoms shall be exercised with due regard for the
interests of other states (Art. 87)
Freedoms 1, 2 and 4 are those accorded to all states with
respect to the EEZ of a coastal state. (Art. 58. supra., p. 63)
Freedom of Fishing in the High Seas
The right to fish on the high seas pertains to all states, both
coastal and land-locked. (Art. 116)
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Conservation of the Living Resources of the High
Seas
Every state has the duty to take measures for the
conservation of living resources of the high seas. (Art. 117)
States shall cooperate with each other in the conservation
and management of such resources, including the
determination of the allowable catch. (Arts. 118, 119)
SOUTHERN BLUE FIN TUNA CASES (NEW
ZEALAND & AUSTRALIA v. JAPAN)
ITLOS Order, August 27, 1999
Australia and New Zealand initiated arbitration proceedings
against Japan alleging that Japan breached its obligation
under UNCLOS (Arts. 64, 116-119) in relation to the
conversation and management of southern bluefish tuna by
implementing a unilateral experimental fishing program. As
a result of said experimental program, Japan managed to
catch more southern bluefish tuna, to the detriment of other
coastal states such as New Zealand and Australia.
Furthermore, New Zealand and Australia argue that Japan
failed to adopt necessary conservation measures so as to
maintain and restore stocks to levels which could produce a
maximum sustainable yield.
Even though parties to the 1993 Convention on
Conservation of Bluefin Tuna, they are not prevented
invoke the UNCLOS provisions. According to UNCLOS, the
State Parties have to duty to cooperate directly or through
international organizations with a view of ensuring the
conservation and promoting the objective optimum
utilization of highly migratory species, like the SBT.
Notwithstanding the absence of urgency in the case, the
Tribunal may still prescribe provisional measures to
preserve the rights of the parties or to prevent serious harm
to the marine environment. Conservation of living
resources of the sea is an element of preservation of marine
environment. There is no disagreement that the stock of
SBT had been severely depleted, thus efforts to conserve
shall be intensified.
RIGHT OF ACCESS OF LAND-LOCKED
STATES TO AND FROM THE SEA AND
FREEDOM OF TRANSIT
UNCLOS, Art. 125.
Right of access to and from the sea and freedom of
transit
1. Land-locked States shall have the right of access
to and from the sea for the purpose of exercising the
rights provided for in this Convention including
those relating to the freedom of the high seas and
the common heritage of mankind. To this end,
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land-locked States shall enjoy freedom of transit
through the territory of transit States by all means
of transport
2. The terms and modalities for exercising freedom
of transit shall be agreed between the land-locked
States and transit States concerned through
bilateral, subregional or regional agreements.
3. Transit States, in the exercise of their full
sovereignty over their territory, shall have the right
to take all measures necessary to ensure that the
rights and facilities provided for in this Part for land-
locked States shall in no way infringe their
legitimate interests.
Right of Access
Land-locked states (i.e. a state which has no coast), given
their special geographical circumstance, are given a right of
access to and from the sea in order to enable it to exercise
its rights given by UNCLOS (e.g. rights under freedom of the
high seas, rights of landlocked states to the EEZ, etc.).
Fig.. A map of landlocked states (in green).
In order to access the seas, they are given the right of
freedom of transit through the territory of a coastal state
by all means of transport. This shall be governed by
bilateral, subregional or regional agreements. (Art. 125)
These provisions apply in cases like the Case Concerning
Right of Passage over Indian Territory (Portugal v. India).
(supra., p. 13)
Customs Duties, Taxes and Other Charges
General Rule: Traffic in transit not subject to duties,
taxes or other charges
Exception: Charges for specific services rendered and
facilities provided for use of the
landlocked state by the transit state in
connection with such transit.
Such charges shall not be higher than
those levied for use in the transit state.
Cooperation in the Construction and Improvement
of Means of Transport
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Where there are no means of transport in transit States to
give effect to the freedom of transit or where the existing
means, including the port installations and equipment, are
inadequate in any respect, the transit States and land-
locked States concerned may cooperate in constructing or
improving them. (Art. 129)
Measures to Avoid or Eliminate Delays or Other
Difficulties of a Technical Nature
Transit States shall take all appropriate measures to avoid
delays or other difficulties of a technical nature in traffic in
transit.
Should such delays or difficulties occur, the competent
authorities of the transit States and land-locked States
concerned shall cooperate towards their expeditious
elimination. (Art. 130)
Equal Treatment in Maritime Ports
Ships flying the flag of land-locked States shall enjoy
treatment equal to that accorded to other foreign ships in
maritime ports. (Art. 131)
THE AREA
The Area, Defined
It is the seabed and ocean floor and subsoil thereof beyond
the limits of national jurisdiction.
No State has Sovereignty
No state shall claim or exercise sovereignty or sovereign
rights over any part of the Area or its resources, nor shall
any state or juridical person appropriate any part thereof.
(Art. 137 [1])
Common Heritage of Mankind
The Area and its resources are the common heritage of
mankind. All rights over its resources are vested in mankind
as a whole. (Art. 136)
Its exploration and exploitation is carried out for the benefit
of mankind by the International Seabed Authority, acting in
behalf of all mankind.
Resources in the Area
This refers to all solid, liquid or gaseous mineral resources
in situ in the Area at or beneath the seabed, including
polymetallic nodules. (Art. 133 [a])
General Rule: No state or natural or juridical person
shall claim, acquire or exercise rights
with respect to the minerals recovered
from the Area
Exception: In accordance with the UNCLOS (Art. 137
[3])
Use for Peaceful Purposes
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The Area shall be open to use exclusively for peaceful
purposes by all states. (Art. 141)
International Sea-Bed Authority
It is the organization established by UNCLOS which acts on
behalf of mankind in governing the regime of resources in
the Area. It organizes, carries out and controls the activities
of the Area on behalf of mankind as a whole.
It possesses international legal personality and such other
legal capacity as may be necessary for the exercise of its
functions. (Art. 176)
Organization. – The following are the entities that form part
of the Authority:
 The Assembly – All state parties to the UNCLOS are
ipso facto members of the Authority and form the
membership of its Assembly.
 The Council. – It is the executive organ of the authority
whose 36 members are elected by the Assembly on
the basis of representation. It is responsible for the
implementation of the UNCLOS and the Assembly’s
general policies, enter into agreements, and approve
plans of work of the Enterprise.
 The Enterprise. – It is the organ of the Authority
directly engaged in the exploration and exploitation
of the resources of the Area, including the
transporting, processing and marketing of minerals.
Activities in the Area
The Enterprise carries out mining activities on behalf of the
Authority:
 Directly; or
 By joint ventures with:
o State parties;
o State enterprises; or
o Natural or juridical persons sponsored by state
parties.
Applicants for license in deep seabed mining are limited to
those controlled by states parties to the UNCLOS or by their
nationals. (Art. 153)
NAVIGATION
Right of Navigation
Every State, whether coastal or land-locked, has the right to
sail ships flying its flag on the high seas. (Art. 90)
Nationality of Ships is that of Flag State
Ships carry the nationality of the state whose flag they are
entitled to fly (i.e. flag state). (Art. 91 [1])
There must be a “genuine link” between the state and the
ship. (ibid.)
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 In the M/V “Saiga” (No. 2) Case (infra., p. 60), it was
explained that the purpose behind including this
concept is to secure more effective implementation
of the duties of the flag state. It is not a criterion by
reference to which the validity of the registration of
ships in a flag state may be challenged by other
states.
Such state shall have its own conditions for the grant of its
nationality to ships, their registration within its territory,
and for the right to fly its flag. (Art. 91 [1])
A ship shall sail under the flag of one State only. A ship with
two or more states has no nationality, and may not claim
any of the nationalities represented by these flags. (Art. 92
[2])
A ship cannot change its flag during voyage or while in a port
of call, except in case of transfer of ownership or on the
basis of change of registry. (Art. 92 [1])
Flag of Convenience
The flag of a state which requires a nominal or no link at all
with a ship which is allowed to fly its flag. It is also called
open registry state
Duties of a Flag State with respect to Ships Flying
its Flag
1. Maintain a registry of ships authorized to fly its flag;
2. Take jurisdiction over the internal affairs of the ship;
3. Ensure safety at sea of the ship;
4. Ensure ship is surveyed by a qualified surveyor of
ships and is well-equipped;
5. Ensure ship is manned by qualified master, officers
and crew; and
6. Ensure the officers and crew are conversant with and
are required to observe international regulations.
(Art. 94)
Duty to Render Assistance in Distress
It is the duty of the flag state to require the master of the
ship, without serious danger to the ship, to:
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
assistance, in so far as such action may reasonably be
expected of him; and
c) After a collision, to render assistance to the other
ship, its crew and its passengers. (Art. 98)
Duty with regard to Transport of Slaves
It is the duty of the flag state to take effective measures to
prevent and punish the transport of slaves in ships
authorized to fly its flag, as well as to prevent the unlawful
use of its flag for that purpose. (Art. 99)
Flag State Jurisdiction in the High Seas
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The flag state have exclusive jurisdiction over a ship which
flies its flag on the high seas. (relate to discussion on High
Seas, supra., p. 63)
General Rule: Exclusive jurisdiction over all ships sailing
its flag in the high seas. It covers all
legislative and enforcement jurisdiction
over administrative, technical and social
matters concerning the ship, its master,
officers and crew.
In particular, its jurisdiction includes:
1. Penal or disciplinary proceedings
against the master or any other
person in the service of the ship
arising from collision or any other
incident of navigation concerning a
ship on the high seas; (Art. 97)
2. Prevention or punishment of
transport of slaves in ships
authorized to fly its flag. (Art. 99)
Exceptions: 1. In penal or disciplinary proceedings
on the master or person in the
service as regards to incidents
arising from collision or any other
incident of navigation – the state of
which that person is a national has
jurisdiction concurrent with the flag
state;
2. Piracy – every state may seize a
pirate, ship taken by pirates, seize
the pirates and property on board;
3. On persons or ship engaged in
unauthorized broadcasting from
the high seas – the following states
may arrest the person, seize the
broadcasting apparatus, and
prosecute the offender
a. state of registry of the
broadcasting installation;
b. state of which the offender
is a national;
c. state where the broadcast
transmission is received;
or
d. any state where authorized
radio communication is
suffering interference (Art.
109, infra., p. 67)
4. Exercise of the right of hot pursuit
– a warship or military aircraft of a
state may stop & arrest a foreign
ship on the high seas; (Art. 111,
infra., p. 67)
5. Pollution from a marine casualty –
jurisdiction off the coastal state
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whose coastline is threatened may
take and enforce measures beyond
the territorial sea, including on the
high seas. (Art.
221)
Penal jurisdiction in matters of collision or any other
incident of navigation. – In the event of a collision or any
other incident of navigation concerning a ship on the high
seas, involving the penal or disciplinary responsibility of the
master or of any other person in the service of the ship, the
following have concurrent jurisdiction over the latter’s
person for the institution of penal/disciplinary proceedings:
 Flag state; or
 State of nationality of the person. (Art. 97 [1])
No arrest or detention of the ship, even as a measure of
investigation, shall be ordered by any authorities other than
those of the flag State. (Art. 97 [3])
This rule departs from the decision in the Case of SS
Lotus (supra., p. 29), which allowed Turkey (the state
with jurisdiction over the place of the incident) to
exercise jurisdiction over a French captain (i.e.
territorial jurisdiction.)
Hence, the rule applicable at present is that it is either
the flag state or the state of which such person
is a national which may exercise jurisdiction over the
person in question. (Art. 91 [1])
CLASS NOTES
Complete immunity of ships in the high seas. – The
following ships enjoy complete immunity from the
jurisdiction of any other state other than the flag state:
 Warships; (Art. 95)
 Ships owned or operated by a State and used only
on government non-commercial service. (Art. 96)
Piracy
States have the duty to cooperate in the repression of
piracy in the high seas or in any other place outside the
jurisdiction of the state. (Art. 100)
UNCLOS, Art. 101.
Definition of Piracy
Piracy consists of any of the following acts:
a) Any illegal act of violence or detention, or any
act of depredation, committed for private
ends by the crew or the passengers of a
private ship or a private aircraft, and directed:
i. on the high seas, against another
ship or aircraft, or against persons or
property on board such ship or
aircraft;
ii. against a ship, aircraft, persons or
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property in a place outside the
jurisdiction of any State;
b) Any act of voluntary participation in the
operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or
aircraft; or
c) Any act of inciting or of intentionally
facilitating an act described in
subparagraph (a) or (b).
This definition differs from that found in Art. 122 of
the Revised Penal Code.
The UNCLOS definition contemplates the presence of
two ships, one committing acts of piracy against
another.
The RPC definition, however, only requires that a
person “who, on the high seas, shall attack or seize a
vessel or, not being a member of its complement nor a
passenger, shall seize the whole or part of the cargo of
said vessel, its equipment, or personal belongings of its
complement or passengers.” A second ship is
not required.
CLASS NOTES
This may be committed by warships or a government ship,
if the crew has mutinied and taken control of the ship. (Art
102)
Pirate ship or aircraft. – A ship or aircraft is considered a
pirate ship or aircraft if it is intended by the persons in
dominant control to be used for the purpose of committing
acts of piracy, or has been used to commit acts of piracy and
remains under the control of such persons who committed
such acts
In being classified as such, it may or may not lose its
nationality depending on the law of its flag state.
Seizure of pirate ship or aircraft. – On the high seas or in
any other place outside the jurisdiction of any state, every
state may seize a pirate ship or aircraft, or a ship or aircraft
taken by piracy and under the control of pirates, and arrest
the persons and seize the property on board. (Art. 105)
Such seizure may only be effected by:
 Warships or military aircraft; or
 Other ships or aircraft clearly marked and identifiable
as being on government service and authorized to
that effect. (Art. 107)
If seizure effected without adequate grounds, the seizing
state shall be liable to the flag state of the seized ship for
any resulting loss or damage. (Art. 106)
Unauthorized Broadcasting
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All States shall cooperate in the suppression of
unauthorized broadcasting from the high seas.
“Unauthorized broadcasting” refers to the transmission of
sound radio or television broadcasts from a ship or
installation on the high seas intended for reception by the
general public, contrary to international regulations.
Criminal jurisdiction over unauthorized broadcasting. –
Any person engaged in unauthorized broadcasting may be
prosecuted before the court of:
1. Flag state;
2. State of registry of the installation;
3. State of his nationality;
4. Any state where the transmission can be received;
or
5. Any state where authorized radio communication is
suffering interference
Right to Visit
A warship may board a foreign ship not protected by
immunity (i.e. warships, state-operated vessels, supra. p.
43) in the high seas if there is reasonable ground of
suspecting the foreign ship that it is:
1. Engaged in piracy
2. Engaged in slave trade
3. Engaged in unauthorized broadcasting
4. Without nationality; or
5. Of the same nationality as the warship but flying a
foreign flag or refusing to show its flag (Art. 110 [1])
Right of Hot Pursuit
It is the right of a coastal state to pursue a foreign ship
beyond its territorial sea and contiguous zone when it has
good reason to believe that a foreign ship has violated its
laws.
Requisites. – A coastal state may pursue a foreign ship
beyond the maritime zones over which it has jurisdiction
(i.e. into the high seas), given the following:
 Pursuing ship must have given a visual or auditory
signal to stop at a distance which enables it to be
seen or hears by the foreign ship; Art. 111 [4])
 Pursuit was commenced when the foreign ship is
still within the internal waters, archipelagic
waters and territorial sea or the contiguous zone
of the pursuing state (Art. 111 [1])
*If commenced in the contiguous zone, EEZ
or continental shelf, may be pursued only for
violations of rights in that zone. (Art. 111 [2])
 Pursuit must not have been interrupted; (Art. 111
[1])
 May be exercised only by warships or military
aircraft or other ships of government service and
with authority. (Art. 111 [5])
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Cessation. – Pursuit ceases as soon as the ship pursued
enters the territorial sea of its own state or of a third state.
Liability for stop and seizure without cause. – If pursuit
without cause, the foreign ship shall be compensated for
the resulting loss or damage
Illicit Drug Traffic
States have the duty to cooperate for the suppression of
illicit traffic in narcotic drugs and psychotropic substances
engaged in by ships in the high seas. (Art. 108)
Note, however, that UNCLOS does not authorize the
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
flag state to suppress such traffic
This also applies to the boarding if such foreign ships by
military aircraft. (Art. 110 [4])
SETTLEMENT OF DISPUTES
Duty to Settle Disputes by Peaceful Means
It is the right of the parties to resort to peaceful means of
their own choice on which they can agree ay time
UNCLOS vs. Peaceful Settlement of Parties
UNCLOS will only be applicable when the agreement of the
parties prove unsuccessful and their agreement does not
exclude any further procedure
UNCLOS not applicable if party requests submission of
dispute to a procedure pursuant to any other general,
regional, bilateral agreement
Principle of Compulsory Settlement
This is applicable when no successful settlement can be
achieved or if the parties are unable to agree on the means
of settlement
Choices for the compulsory means of settlement of
disputes. –
1. International Tribunal for the Law of the Sea
2. International court of Justice
3. Arbitral tribunal
4. Special arbitral tribunal
Jurisdiction of the court or tribunal. –
1. Interpretation or application of UNCLOS
2. Interpretation or application of an international
agreement
International Tribunal for the Law of the Sea. –
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 Composed of 21 independent members, representing
the world’s principal legal systems and equitable
geographical distribution
 May for chambers of three or more members
 Must have a Seabed Disputes Chamber – with 11
members; shall form an ad hoc chamber of 3 members
 Jurisdiction on all disputes submitted in accordance
with UNCLOS
Seabed Disputes Chamber. –
 Jurisdiction over disputes and submissions concerning
activities in the Area
PEACEFUL USE OF THE OCEANS
UNCLOS, Art. 301.
Peaceful uses of the seas
In exercising their rights and performing their duties
under this Convention, States Parties shall refrain
from any threat or use of force against the territorial
integrity or political independence of any State, or
in any other manner inconsistent with the principles
of international law embodied
in the Charter of the United Nations.
ARCHAELOGICAL AND HISTORICAL
OBJECTS
UNCLOS, Art. 301.
Archaeological and historical objects found at sea
1. States have the duty to protect objects of an
archaeological and historical nature found at sea
and shall cooperate for this purpose.
2. In order to control traffic in such objects, the
coastal State may, in applying article 33, presume
that their removal from the seabed in the zone
referred to in that article without its approval would
result in an infringement within its territory or
territorial sea of the laws and regulations referred
to in that article.
3. Nothing in this article affects the rights of
identifiable owners, the law of salvage or other
rules of admiralty, or laws and practices with
respect to cultural exchanges.
4. This article is without prejudice to other
international agreements and rules of international
law regarding the protection of
objects of an archaeological and historical nature.
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C. Jurisdiction and Immunities
JURISDICTION
Jurisdiction, Defined
It is the competence of a State to prescribe rules of conduct,
to enforce its legal processes, and to adjudicate
controversies or claims.
Aspects of jurisdiction. –
1. Jurisdiction to prescribe norms of conduct
(legislative jurisdiction)
2. Jurisdiction to enforce the norms prescribed
(executive jurisdiction)
3. Jurisdiction to adjudicate (juridical jurisdiction)
This authority us exclusive over all persons, events and
transactions, except as may be limited by:
 A state’s consent; and/or
Examples: surrender of jurisdiction pursuant
to military basing agreements; grant of
immunities through hosting agreements
 Principles of international law.
Example: absence of jurisdiction over soldiers
of an occupying force.
5 Traditional Bases of Jurisdiction over
Extraterritorial Crimes under International Law
1. Territoriality Principle
Jurisdiction is based on whether jurisdiction is
based on the place where the offense is
committed. The fundamental source of
jurisdiction is sovereignty over territory. A state
has absolute, but not necessarily exclusive, power
to prescribe, adjudicate, and enforce rules for
conduct that occurs within its territory.
Example: Art. 14, CC – Penal laws are
obligatory upon all who live and sojourn in
Philippine territory.
2. Nationality Principle
Jurisdiction is based on the nationality of the
offender. Every state has jurisdiction over its
nationals even when those nationals are outside
the state. Each state has the right to decide who
are its nationals, using either jus sanguinis or jus
soli or naturalization laws. As to corporations, a
state has jurisdiction over corporations whose
principal place of business or registered office is
located in their territories.
Effective nationality link doctrine determines
which of two states of which a person is a national
will be recognized as having the right to give
diplomatic protection to holder of dual
Aihara, a Japanese national, and his wife were insured
nationality.
jointly by Sun Life. Brownell, in his capacity as Attorney
A2015
Example: Art. 15, CC – Philippine family and
personal laws are binding on citizens, even
though living abroad.
3. Protective Principle
Jurisdiction is based on whether the national
interest is injured. A state may exercise
jurisdiction over conduct outside its territory, if it
threatens its security, as long as that conduct is
generally recognized as criminal by states in the
international community.
Example: Art. 2, RPC – laws on crimes
onboard Philippine vessels, forgery of
Philippine currency, offenses committed by
public officers, and crimes against national
security and the law of nations, may be
enforced outside of Philippine territorial
jurisdiction.
4. Universality Principle
Jurisdiction is conferred in any forum that obtains
physical custody of the perpetuator of certain
offenses considered particularly heinous and
harmful to humanity. The principle recognizes
that certain activities universally dangerous to
states and their subjects require authority in all
community members, to punish such acts
wherever they may occur, even absent a link
between the state and the parties or the acts in
question.
Example: Crimes hostes humani generis (e.g.
piracy)
5. Passive Personality Principle
Jurisdiction is based on the nationality of the
victim. State may apply law to an act committed
outside its territory, by a person not its national,
where the victim of the act is one of its nationals.
Q: How does jurisdiction differ from “sovereignty?”
Sovereignty is all the powers of the state. However in
the Las Palmas case, sovereignty was defined in
relation to independence, that sovereignty is exercised
to the exclusion of all other.
Jurisdiction, on the other hand, is a form of power
covered by sovereignty, but has narrower scope. It
means legal competence, and it may be exercised
within territory.
BROWNELL v. SUNLIFE ASSURANCE
G.R. No. L-5731 (1954)
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PUBLIC INTERNATIONAL LAW
General of the United States, instituted a claim before the
CFI saying that he is entitled to the aforementioned
insurance proceeds upon its maturity by virtue of the”
Trading with the Enemy Act” of the US – an act which,
among others, governed the assets of enemy citizens (i.e.
Japanese citizens during WW II)
Brownell:  The application of the Trading with the
Enemy Act in the Philippines is based on
the legislation of the Philippine Property
Act of 1946.
Sunlife  No law has been enacted to extend the
Assurance: application of the Trading with the Enemy
Act in the Philippines especially since the
country gained its
independence.
The Philippines has consented to the application of the
Trading with the Enemy Act within its jurisdiction by
enacting the Philippine Property Act of 1946
Section 3 of the PPA of 1946 provides that "The Trading with
the Enemy Act of October 6, 1917” as amended shall
continue in force in the Philippines after July 4, 1946.
According to the court, a foreign law may have
extraterritorial effect in a country other than the country of
origin, provided the latter, in which it is sought to be made
operative gives its consent thereto. As a general rule, the
jurisdiction of the nation within its territory is necessarily
exclusive and absolute. It is susceptible of no limitation not
imposed by itself. Any restriction upon it, deriving validity
from an external source, would imply a diminution of its
sovereignty to the extent of the restriction, and an
investment of that sovereignty to the same extent in that
power in which would impose such restriction. However,
there are exceptions to the full and complete power of a
nation within its own territories, which can traced up to the
consent of the nation itself. They can flow from no other
legitimate source. This consent may be either express or
implied. The consent of a Senate to the operation of a
foreign law within its territory does not need to be express;
it is enough that said consent can be implied from its
conduct or from that of its authorized officers. Ratification
can be given tacitly as well as expressly. Tacit ratification
takes place when a State begins the execution of a treaty
without expressly ratifying it.
In this case, the application of the Trading with the Enemy
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
Foreign Affairs).
PEOPLE v. LOL-LO and SARAW
G.R. No. 17958 (1922)
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Two boats left the Matuta (a Dutch possession) for Peta
(another Dutch possession). In one of the boats was 1 Dutch
subject and in the other boat 11 men, women, and children,
likewise subjects of Holland. When the one of the boats
arrived between the Islands of Buang and Bukid in the Dutch
East Indies, it was surrounded by six vintas manned by
twenty-four armed Moros. The Moros asked for food, took
the cargo, attacked some of the men, and brutally raped
two women. All of the persons on the Dutch boat, with the
exception of the two young women, were again placed on it
and holes were made in it, the idea that it would submerge.
Two of the Moro marauders were Lol- lo, who also raped one
of the women, and Saraw. They were arrested and charged
with the crime of piracy before the CFI when they returned
home to Tawi-Tawi, Sulu.
Lol-lo and  The crime, having been committed
Saraw: outside the Philippines, is not within the
jurisdiction of any court in the Philippine
Islands.
Piracy is within the jurisdiction of the CFI since jurisdiction
for crimes similar to piracy has no territorial limits.
Piracy is robbery or forcible depredation on the high seas,
without lawful authority and done animo furandi, and in the
spirit and intention of universal hostility.
Pirates are in law hostes humani generis. Piracy is a crime
not against any particular state but against all mankind. It
may be punished in the competent tribunal of any country
where the offender may be found or into which he may be
carried. The jurisdiction of piracy unlike all other crimes has
no territorial limits. As it is against all so may it be punished
by all. Nor does it matter that the crime was committed
within the jurisdictional 3-mile limit of a foreign state, "for
those limits, though neutral to war, are not neutral to
crimes."
There is universal jurisdiction over crimes hostes
humani generis – literally, enemy of mankind.
This categorization includes piracy, torture, genocide,
war crimes, and other crimes against humanity.
Existence of armed conflict is not required for its
invocation.
CLASS NOTES
TUBB v. GREISS
G.R. No. L-1325 (1947)
George L. Tubb and Wesley Tedrow (citizens of the United
States but residents of the Philippines) were under a written
contract of employment with the Army of the
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United States. They were serving as civilian employees in the
US Army Depot in Manila when were apprehended by the
authorities of the United States Army and had been held in
army custody. They were formally charged with violations of
Articles of War regarding misappropriation of United States
Government property destined for military use, said acts
having been committed within premises occupied by the
United States Army under lease contracts.
Thus they filed this petition for habeas corpus.
Tubb and Philippine courts have exclusive jurisdiction
Tedrow: over their arrest, confinement and
imprisonment because
 They are civilians not subject to
military laws;
 Martial law is no longer enforced.
Philippine Courts have no jurisdiction over the case. Not
only did they agree in their contracts that they submit
themselves to US military law, they are also likened to
military personnel who are exempt from the civil and
criminal jurisdiction of the foreign state they are assigned
to.
In their contract of employment, they voluntarily submitted
themselves to United States military law while serving said
contract, thereby submitting themselves to the full extent
of the authority of the United States Army in this area.
Petitioners are also American citizens, their position during
the subsistence of said contract are no different from that
of enlisted men, that in relation to the United States Army
in the Philippines and during the subsistence of their
employment contract, can be deemed to possess the status
of military personnel.
The principle of International Law is that a foreign army
allowed to march through a friendly country or to be
stationed in it, by permission of its government or
sovereign, is exempt from the civil and criminal jurisdiction
of the place. The agreement for the stationing of the US
Army or a part of its forces in the RP implies a waiver of all
jurisdiction over their troops during the time covered by
such agreement, and permits the allied general or
commander-in-chief to retain that exclusive control &
discipline which the government of his army may require.
HAW PIA V. CHINA BANKING CORPORATION
G.R. No. L-554 (1948)
Haw Pia obtained credit facilities from China Banking Corp.
During the Japanese occupation and under Administrative
Ordinance No. 11 dated July 31, 1942, issued by the
Japanese occupation authorities, the defendant bank was
placed under liquidation, with Taiwan Bank as liquidator.
Taiwan bank received partial payments from Haw Pia on
account of his outstanding overdraft. Haw Pia asked
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Taiwan Bank to cancel the mortgage but the latter refused.
Haw Pia filed a suit before the trial court against China
Banking and Taiwan Bank. He wanted the defendants to
execute a deed of cancellation of the mortgage. Trial court
held that the payments Haw Pia made to the Taiwan Bank
did not extinguish his obligation since there is no proof
under international law that the Japanese Military
Administration had authority to liquidate China Banking.
Japanese Military Administration had authority to
liquidate China Banking. The Liquidation of China Banking
is not a confiscation but a mere sequestration of its assets
which required the liquidation of the bank.
The Japanese military authorities had power, under the
international law, to order the liquidation of the China
Banking Corporation and to appoint and authorize the Bank
of Taiwan as liquidator to accept the payment in question,
because such liquidation is not confiscation of the
properties of China bank, but a mere sequestration of its
assets which required the liquidation or winding up of the
business of said bank. Thus, there was valid tender of
payment to Bank of Taiwan which discharged Haw Pia’s
obligation.
Confiscation is not allowed under the Hague Regulations.
However, there was no confiscation here but a mere
sequestration. Under international law, the occupying
power can effect a liquidation that is in the form of a mere
sequestration. In the effort of occupying powers to control
enemy property within their jurisdiction in order to avoid
their use in aid of the enemy and to increase their own
resources, they had to resort to such measures of
prevention which do not amount to a straight confiscation,
as freezing, blocking, placing under custody, and
sequestrating the enemy private property.
Acts of a belligerent military occupant is valid if it is not
political. Confiscation is not allowed, only
sequestration which is a valid measure of prevention.
(Karichi Notes, citing Prof. Roque, 2010)
The receiver appointed by a belligerent occupying
state has the authority to receive payment by virtue of
the rights of such occupying state. Payment to him
extinguishes the obligation to the enemy obligor.
CLASS NOTES
SOVEREIGN IMMUNITIES
Immunity, Generally
The general rule is that jurisdiction of a state within its
territory is complete and absolute. However, there are two
categories of exceptions to this rule:
1. Sovereign immunity, which covers both head of
state and the state itself
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2. Immunity of representative of states or
diplomatic and consular immunities.
Sovereign Immunity
It is the principle by which a state, its agents and property
are immune from the judicial process of another state.
It is premised on the principle of equality of states,
according to which a state may not impose its authority or
extend its jurisdiction on another state without the consent
of the latter through a waiver of immunity. (Magallona,
2005)
It consists of:
1. Immunity of head of state;
2. State immunity
The principle, found in the Constitution,
that the state may not be sued without its
consent, is both municipal and international
law.
Diplomatic and Consular Immunities
Much of the law governing diplomatic relations is
customary law. Official representatives of a state are given
immunities and privileges when they are within the territory
of another state. The immunities are personal, in that they
benefit the person. But the purpose is functional, that is, to
enable them to perform their functions properly. On the
part of the receiving state there lie certain obligations to
protect the representative and his property and office.
HILAO v. ESTATE OF FERDINAND MARCOS
(*Note: There are several Hilao v Estate cases. This first one
has to do with RP’s sovereign immunity.)
Ferdinand Marcos and his wife Imelda fled to Hawai'i. Five
suits filed in the Northern District of California and the
District of Hawai'i by individuals alleging that they or their
relatives had been arrested, tortured, or executed by
military intelligence personnel acting pursuant to martial
law declared by Marcos in 1971. The district courts
dismissed all five suits on the ground that the Act of State
doctrine precluded liability. In an appeal of those decisions
to this court, the Republic filed an amicus curiae brief urging
the U.S. courts to exercise jurisdiction over the human rights
claims. The human rights cases were eventually
consolidated in the Hawaii district court and the
consolidated case was certified as a class action suit against
the Estate. The Republic also sued the Estate. However, they
eventually reached a settlement that included the transfer
of some of the Estate assets to the Republic. Meanwhile,
Hilao was eventually awarded punitive and compensatory
damages against the Estate. He also requested an injunction
against the RP, as aiders
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and abettors of the Estate to seize from disposing of the
latter’s assets. The District Court granted the injunction
which the Republic opposed.
Republic of District court lacked authority to subject it to
the the injunction because it enjoys sovereign
Philippines: immunity under the Foreign
Sovereign Immunities Act (FSIA).
Hilao: District court need not even assume
jurisdiction over the RP. In this case, the FSIA
does not govern because Rule 65(d) of the
Federal Rules of Civil Procedure makes an
injunction binding upon "those persons in
active concert or participation with" an
enjoined party to the action where those
persons have actual notice.
In order to enforce injunction on the Republic of the
Philippines, the District Court must have personal
jurisdiction over it. Also, none of the exceptions to foreign
sovereign immunity under the FSIA is available to Hilao in
this case to be able to successfully sue the RP in the District
Court of Hawaii.
An injunction against the Republic in the absence of
personal jurisdiction over it would be futile, as the court
would be powerless to enforce its injunction. A court should
not issue an unenforceable injunction: "The rule that a
court of equity will not issue an unenforceable decree of
injunction comprehends as a reason for denying injunctive
relief that the court... does not have the means to punish
disobedience once discovered.'"
Also, the Foreign Sovereign Immunities Act of the US is the
sole basis for jurisdiction over a foreign state which Hilao
also hinges his case on. Personal jurisdiction over a foreign
state depends on subject-matter jurisdiction over the action
against the foreign state under the FSIA. It states that
"Personal jurisdiction, like subject-matter jurisdiction, exists
only when one of the exceptions to foreign sovereign
immunity in [the FSIA] applies." However, the court rejected
Hilao’s argument that the “commercial activity” exception
is applicable to the RP in this case because accordingly, the
State was merely acting pursuant to its mandate to recover
misappropriated public assets. As a general rule, foreign
states are immune from the jurisdiction of courts in the
United States unless a claim against them falls within an
exception to immunity under the FSIA. Thus, the district
court lacked jurisdiction over the Republic absent the
existence of an applicable exception under the FSIA.
(*Note: This next Hilao case has to do with claims based on
the US Aliens Torts Claims Act [ATCA])
Hilao, representing victims of Martial Law sued the Estate of
Ferdinand Marcos under the US Alien Torts Claims Act – an
act which gave universal jurisdiction to US courts for
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claims for civil damages, provided summons may be served
in the US.
There is no sovereign immunity against charges of torture.
“US Alien Tort Statute provides a forum for claims by aliens
for torture that has occurred elsewhere. It requires a claim
by an alien, a tort and a violation of international law. The
prohibition against official torture carries with it the force
of jus cogens norm which enjoys the highest status in
international law. All states believe that torture is wrong, all
that engage in torture deny it, and no state claims a
sovereign right to torture its own citizens. Under
international law, any state that engages in official torture
violates jus cogens. Note that RP filed a brief stating that its
foreign relations with the US would not be adversely
affected if claims against Marcos were litigated in the US.”
(Karichi Notes, 2010)
Claims under ATCA make it possible to subject
sovereign acts to claims. This thus makes it unwise
for states to commit violations. (ibid.)
CLASS NOTES
JUSMAG v. NLRC
G.R. No. 108813 (1994)
Sacramento was a security assistance support personnel
working at JUSMAG-Philippines. He was in service from
1969 to 1992. He was dismissed, allegedly because of the
abolition of his position. Before his terminated, he was
advised that he was under administrative leave until April
27, 1992, although the same was not charged against his
leave. During his employment, Sacramento was the
incumbent President of JUSMAG PHILIPPINES-FILIPINO
CIVILIAN EMPLOYEES ASSOCIATION (JPFCEA), a labor
organization duly registered with the DOLE. Because of his
termination, Sacramento filed a complaint before the DOLE
for illegal suspension and dismissal which eventually
reached the NLRC.
JUSMAG:  It had immunity from suit since it was a
US agency.
NLRC:  JUSMAG has waived its right to immunity
from suit when it hired the services of
Sacramento.
JUSMAG has immunity; it did not waive its immunity when
it hired Sacramento as its employee.
A suit against such a US agency is a suit against the US
Government, albeit the latter was not impleaded in the
complaint. Considering that the US has not waived or
consented to the suit, the complaint against JUSMAG
cannot prosper.
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Immunity of State from suit is a universally recognized
principle. In international law, "immunity" is commonly
understood as an exemption of the state and its organs from
the judicial jurisdiction of another state. This is anchored on
the principle of the sovereign equality of states under which
one state cannot assert jurisdiction over another in
violation of the maxim par in parem non habet imperium (an
equal has no power over an equal). The doctrine of
Immunity is restricted to sovereign or governmental
activities (jure imperii) and cannot be extended to
commercial, private and proprietary acts (jure gestionis)
The contract was entered into in the discharge of its
governmental functions, the sovereign state cannot be
deemed to have waived its immunity from suit.
This case enunciated the “purpose test” – immunity
can only be applied in cases involving sovereign
purposes.
CLASS NOTES
UNITED STATES OF AMERICA v. REYES
G.R. No. 108813 (1994)
After her duty as an ID checker at the US Navy Exchange
(JUSMAG HQ in QC), Montoya went shopping at NEX
JUSMAG. On her way to her car after shopping, she was
approached by another ID checker saying that the latter
needed to search her and her belongings following
instructions from Bradford (manager of NEX JUSMAG). The
search was conducted in front of many onlookers. Nothing
irregular was found in Montoya and her belongings. She
later found that she was the only one subjected to such
search, contrary to Bradford’s statement that all employees
were required to be searched that day.
Montoya filed a complaint against Bradford for damages
due to the oppressive and discriminatory acts committed by
the latter in excess of her authority as store manager.
Bradford:  She had functional immunity for acts done
in the exercise of her official functions as
employee of a US agency. The suit should
also be considered as in effect being
against the US government
which did not waive its sovereign
immunity.
Bradford did not have immunity as she was sued in her
private or personal capacity.
Bradford was sued in her private or personal capacity for
acts allegedly done beyond the scope and even beyond her
place of official functions, the case falls within the exception
to the doctrine of state immunity.
Unauthorized acts of government officials or officers are
not acts of the State, and an action against the officials or
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officers by one whose rights have been invaded or violated
by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State
from suit. A public official may be liable in his personal
private capacity for whatever damage he may have caused
by his act done with malice and in bad faith, or beyond the
scope of his authority or jurisdiction, for example, under
Art. 31 of the Vienna Convention on Diplomatic Relations
which admits of exceptions of the general rule of a
diplomatic agent’s immunity from criminal jurisdiction of
the receiving state: (c) an action relating to any professional
or commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions.
No functional immunity with respect to acts outside
official duties.
The “purpose test” was useless here given the facts
of the case because Bradford’s actions were deemed
ultra vires (i.e. beyond her powers).
CLASS NOTES
WYLIE v. RARANG
G.R. No. 74135 (1992)
Aurora Rarang was a merchandise control guard in the
Office of the Provost Marshal. Wylie, the assistant
administrative officer of the US Naval Base, supervised the
publication of the Plan of the Day, a newsletter featuring
important announcements and general matters of interest
to the personnel of the base. Captain Williams, on the other
hand, was the commanding officer of the base. One feature
of the Plan of the Day was the Action Line Inquiry. Under the
said feature, an article was published alleging that a certain
“Auring” appropriated confiscated items for their own
consumption or use. Rarang filed a suit for damages (libel
against Wylie and Williams for her humiliation because of
the article.
Wylie and  They are entitled to functional immunity
Williams: because the publication was done in the
performance of their duties.
The defendants are not entitled to functional immunity
because such is not available with regard to tortious acts.
American naval officers who commit a crime or tortuous act
while discharging official functions are not covered by state
immunity from suit. While the doctrine is also applicable to
complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their
duties. The rule is that if the judgment against such officials
will require the state itself to perform an affirmative act to
satisfy the same, such as the appropriation of the amount
needed to pay the damages awarded against them, the
suit must be regarded as
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against the state itself although it has not been formally
impleaded. Public officials can be held personally
accountable for acts claimed to have been performed in
connection with official duties where they have acted ultra
vires or where there is showing of bad faith. The doctrine
cannot institutionalize irresponsibility and non-
accountability nor grant a privileged status not claimed by
any other official of the Republic. An act or omission that is
ultra vires cannot be part of official duty, but is a tortuous
act.
In this case, there was a finding of negligence since the
Office of the Provost Marshal explicitly recommended the
deletion of the name “Auring” if the article was to be
published. However, despite such recommendation, Wylie
and Williams approved and published the same with the
name “Auring”. According to the court, such act or omission
cannot be part of their official duty.
The Court flip-flopped once again in this case.
According to Prof. Roque, it would seem that the Court
decides cases on the basis of how affected the Filipino
was.
CLASS NOTES
UNITED STATES OF AMERICA v. RUIZ
G.R. No. L-35645 (1985)
The US held a bidding for some naval repair projects. Eligio
de Guzman and Co., Inc submitted bids. Subsequently, the
company received from the US two telegrams requesting it
to confirm its price proposals and for the name of its
bonding company. The company then received a letter
which said that the company did not qualify to receive an
award for the projects, because of its previous
unsatisfactory performance rating on a repair contract with
the US. The letter further said that the projects had been
awarded to third parties. The company sued the US to allow
them to perform the work on the projects.
United  Philippine courts do not have jurisdiction
States: over it since it is a foreign sovereign which
had not given its consent to the
suit.
US is entitled to immunity since sovereign immunity is not
lost when a state enters into contracts related to its
sovereign functions.
State immunity exempts a State from being sued in the
courts of another State without its consent or waiver. This
rule is a necessary consequence of the principles of
independence and equality of States. However, the court
said that the rules of international law are not petrified;
they are constantly developing and evolving. Thus, it has
been necessary to distinguish between sovereign and
governmental acts (jure imperii) and private, commercial
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and proprietary acts (jure gestionis). The result is that
State immunity now extends only to acts jure imperii.
However, the restrictive application of State immunity is
proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial
activities or economic affairs. A State may be said to have
descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only
when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign
functions. In this case the projects are an integral part of the
naval base which is devoted to the defense of both the US
and the RP, indisputably a function of the government 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 conclusion of a
contract by a state but the legal nature of the act.
Makasiar, J., dissenting:
When the U.S. Government, through its agency at Subic Bay,
confirmed the acceptance of a bid of a private company for
the repair of wharves or shoreline in the Subic Bay area, it
is deemed to have entered into a contract and thus waived
the mantle of sovereign immunity from suit and descended
to the level of the ordinary citizen. Its consent to be sued,
therefore, is implied from its act of entering into a contract.
HARRY LYONS, INC. v. UNITED STATES OF
AMERICA
G.R. No. L-11786 (1958)
Harry Lyons, Inc. and the USA entered into a contract for
stevedoring service at the US Naval Base in Subic Bay. The
said contract is valid until June 30, 1956, and was entered
into pursuant to the provisions of Sec. 2 (c) (1) of the Armed
Services Procurement Act of 1947 of the USA. Harry Lyons
Inc. brought an action to collect several sums of money
arising from the contract.
United CFI has no jurisdiction over it and over the
States: subject matter of the action since the USA is
a sovereign state which cannot be sued
without its consent.
(Merits) Court dismissed the case due to Harry Lyons,
Inc.’s failure to exhaust administrative remedies.
(Obiter) USA is not entitled to immunity. State immunity
is lost when a state enters into a proprietary contract.
When a sovereign state enters into a contract with a 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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can be implied that it has given its consent to be sued under
the contract.
This case is an earlier instance of the application of the
purpose test. Since the contract entered into was for a
stevedoring service – which the deemed to be a
proprietary function – it did not uphold the US’ claim
for immunity.
Compare this with the USA v. Ruiz (supra.), which
concerned a case for the repair of wharves – a
function which is obviously non-proprietary and can
only be exercised by the state.
CLASS NOTES
LIANG v. PEOPLE
G.R. No. 125865 (2001)
Informations for grave oral defamation were filed against
Liang, a Chinese national was employed as an Economist by
the Asian Development Bank. On separate occasions, Liang
accordingly uttered defamatory words (“bitch!”) to Joyce V.
Cabal, an ADB clerical staff. The MeTC judge received an
“office of protocol” from the DFA stating that Liang is
covered by immunity from legal processes under Sec. 45 of
the Agreement between ADB and the Philippines. Judge
dismissed the cases without notice to the prosecution.
Liang was not entitled to immunity.
The statements allegedly made by petitioner Liang were not
uttered in the performance of his official functions. SC
disregarded the “office of protocol” from the DFA stating
that Liang is covered by immunity from legal process under
Section 45 of the Agreement between the ADB and the RP
regarding the Headquarters of the ADB in the RP. The
subsequent (2001) MR focused on the diplomatic immunity
of officials and staff of ADB from legal and juridical
processes in the Philippines and the constitutional and
political basis of that immunity. It should be made clear that
nowhere in the assailed Decision is diplomatic immunity
denied, even remotely.
Accordingly, courts cannot blindly adhere and take on its
face the communication from the DFA that Liang is covered
by any immunity. In receiving ex-parte the DFA’s advice and
in motu proprio dismissing the criminal cases without notice
to the prosecution, the latter’s right to due process was
violated. It has been ruled that the mere invocation of
immunity clause does not ipso facto result in the dropping
of the charges.
The immunity mentioned under Sec. 45 of the Agreement
is not absolute, but subject to the exception that the act
was done in an official capacity.
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Slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the
commission of a crime, such as defamation, in the name of
official duty. It is a well-settled principle of law that a public
official may be liable in his personal capacity for whatever
damage he may have caused by his act done with malice or
in bad faith or beyond the scope of his authority or
jurisdiction.
Under the Vienna Convention on Diplomatic Relations, a
diplomatic agent, assuming Liang is such, enjoys immunity
from criminal jurisdiction of the receiving state except in
case of an action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving
state outside his official functions. As already mentioned
above, the commission of a crime is not part of official
duties.
Calling someone a “bitch” is obviously a sovereign
function.
This case shows that the certification made by the DFA
that an individual is entitled to immunity is NOT
conclusive. Determinations made by the executive as
to the grant of immunity are thus subject to judicial
review.
This is a departure from the rule in WHO v. Aquino
(infra.) that Courts are bound to respect executive
determination through the DFA of eligibility to
immunity.
CLASS NOTES
MINUCHER v. COURT of APPEALS
G.R. No. 142396 (2003)
Minucher, an Iranian Labor Attaché, filed a case for
damages on account of what he claimed to have been
trumped-up charges of drug trafficking made by Arthur
Scalzo (a US Drug Enforcement Agency agent). Trial court
ruled for the Minucher. While the trial court gave credence
to the claim of Scalzo and the evidence presented by him
that he was a diplomatic agent entitled to immunity as such,
it ruled that he, nevertheless, should be held accountable for
the acts complained of committed outside his official duties.
The CA dismissed the charges against Scalzo upon
presentation, among other things, of Diplomatic Note no.
414 which was authenticated by the DFA confirming Scalzo’s
diplomatic agent status.
Scalzo: He is entitled to immunity as an agent of the
US DEA and the acts complained of by
Minucher were performed within his
official functions.
Scalzo was not able to sufficiently establish that he has
entitled to diplomatic immunity. However, the court
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ruled that as a DEA agent allowed by the Philippine
government to conduct activities in the country, he is
entitled to state immunity from suit.
The diplomatic immunity of Scalzo under the Vienna
Convention on Diplomatic Relations was not sufficiently
established. Only "diplomatic agents," under the terms of
the Vienna Convention, are vested with blanket diplomatic
immunity from civil and criminal suits. Diplomatic agents
are the heads of missions or members of the diplomatic
staff, thus impliedly withholding the same privileges from
all others. The test is whether or not he performs duties of
diplomatic nature.
However, it was sufficiently established that, indeed, he
worked for the United States Drug Enforcement Agency and
was tasked to conduct surveillance of suspected drug
activities within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo was
acting well within his assigned functions when he
committed the acts alleged in the complaint, the present
controversy could then be resolved under the related
doctrine of State Immunity from Suit. A foreign agent,
operating within a territory, can be cloaked with immunity
from suit but only as long as it can be established that he is
acting within the directives of the sending state. The
consent of the host state is an indispensable requirement of
basic courtesy between the two sovereigns.
The grant of immunity in this case was inconsistent
with the Vienna Convention. Scalzo was not a
diplomatic agent entitled to such immunity.
CLASS NOTES
THE HOLY SEE V. ROSARIO
G.R. No. 101949 (1994)
Holy See exercises sovereignty over the Vatican City. A lot in
Paranaque was offered to Ramon Licup by sellers Holy See
and Philippine Realty Corporation. The agreement to sell
provided that in consideration of payment of an earnest
money, and the sellers will clear the said lots of informal
settlers. Upon payment, Licup assigned his rights to
Starbright Enterprises. Msgr. Crilos informed Starbright of
the refusal of the informal settlers to vacate the lands,
proposing that Starbright undertake the eviction or that the
earnest money be returned to it. Starbright returned the
earnest money, but discovered that the lot was sold to
Tropicana Properties and Development Corporation.
Starbright filed an action for reconveyance & damages
against the Holy See as represented by the Papal Nuncio.
Holy See: It is entitled to immunity as a foreign
sovereign.
Holy See enjoys sovereign immunity.
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The Vatican City represents an entity organized not for
political but for ecclesiastical purposes and international
objects. Despite its size and object, it has an independent
government of its own, with the Pope, who is also head of
the Roman Catholic Church, as the Holy See or Head of
State, in conformity with its traditions, and the demands of
its mission in the world. Inasmuch as the Pope prefers to
conduct foreign relations and enter into transactions as the
Holy See and not in the name of the Vatican City, one can
conclude that in the Pope's own view, it is the Holy See that
is the international person. The Philippines has accorded
the Holy See the status of a foreign sovereign.
While real estate transactions done in the ordinary course
of business are acts of jure gestations, such is not the case
here.
The property in question was initially acquired by the Holy
See for use as a site of the Apostolic Palace for the Papal
Nuncio, and was subsequently sold the same because it
could not be used for the purpose intended. These are
undoubtedly acts jure imperii, pursuant to a state’s right to
create and maintain a diplomatic mission under the Vienna
Convention.
This case demonstrates the sovereign immunity of
states, which arises as a consequence of the doctrine
of sovereign equality.
The remedy of a person who feels aggrieved by the
acts of a foreign sovereign is to can ask his own
government to espouse his cause through diplomatic
channels.
CLASS NOTES
International Organizations
While there is no customary norm granting immunity to
international organizations, such may be extended to them
through a grant in Hosting Agreements (i.e. agreement
allowing the international organization to set up an office
or headquarters in the territory of a host country.)
There are three propositions underlying the grant of
international immunities to organizations:
1) international institutions should have a status which
protects them against control or interference by any
one government in the performance of functions for
the effective discharge of which they are responsible
to democratically constituted international bodies in
which all the nations concerned are represented;
2) no country should derive any national financial
advantage by levying fiscal charges on common
international funds; and
3) the international organization should, as a collectivity
of States members, be accorded the facilities for the
conduct of its official business
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customarily extended to each other by its individual
member States. (International Catholic Migration
Commission v. Calleja, infra.)
The theory behind all three propositions is said to be
essentially institutional in character. "It is not concerned
with the status, dignity or privileges of individuals, but with
the elements of functional independence necessary to free
international institutions from national control and to
enable them to discharge their responsibilities impartially
on behalf of all their members. (ibid.)
The raison d'etre for these immunities is the assurance of
unimpeded performance of their functions by the agencies
concerned. (ibid.)
WORLD HEALTH ORGANIZATION v. AQUINO
G.R. No. L-35131 (1972)
Dr. Verstuyft was assigned by the WHO to the Regional
Office in Manila as Acting Assistant Director of Health
Services. When petitioner Verstuyft's personal effects
contained in twelve crates entered the Philippines, they
were directly stored at the Eternit Corporation's warehouse
in Rizal, pending his relocation into permanent quarters.
Upon application of respondents Constabulary Offshore
Action Center (COSAC) officers, respondent judge issued a
search warrant pursuant Republic Act 4712 amending
section 3601 of the Tariff and Customs Code, directing the
search and seizure of the dutiable items in said crates.
According to said law, bringing into the Philippines of large
quantities of dutiable goods beyond his official needs is
equivalent to unlawful importation.
The trial court judge upheld the search order
notwithstanding the protest of Dr. Francisco Dy (WHO
Regional Director for the Western Pacific stationed in
Manila) and the statement (via letter) of Secretary of
Foreign Affairs Carlos P. Romulo to said judge advising that
"Dr. Verstuyft is entitled to immunity from search in respect
of his personal baggage as accorded to members of
diplomatic missions" pursuant to the Host Agreement and
requesting suspension of the search warrant order. WHO
joined Verstuyft in opposing the search order.
WHO: He is entitled to all privileges and
immunities, exemptions and facilities
accorded to diplomatic envoys in
accordance with international law" under
section 24 of the Host Agreement.
Verstuyft is entitled to diplomatic immunity.
He is entitled to diplomatic immunity, pursuant to the Host
Agreement executed on July 22, 1951 between the
Philippine Government and the World Health Organization.
Such diplomatic immunity includes personal inviolability,
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inviolability of the official's properties, exemption from
local jurisdiction, and exemption from taxation and customs
duties.
When the executive branch affirmed Verstuyft’s diplomatic
immunity, it was the duty of the court to accept such claim
to avoid embarrassing the executive branch in conducting
foreign relations. Diplomatic immunity is essentially a
political question and courts should refuse to look beyond a
determination of the executive branch.
This case shows the process by which immunity should
be invoked.
 First, request from the DFA a certification of your
official/diplomatic status and entitlement to
immunity;
o Determination of immunity is an executive
function;
o To this, the courts should defer.
 Second, present the certification to the Court.
Note, however, that the DFA certification is not
conclusive as to immunity. Such executive
determination is subject to judicial review. (see Liang
v. USA, supra.)
SOUTHEAST ASIAN FISHERIES DEVELOPMENT
CENTER v. ACOSTA
G.R. No. 97468-70 (1993)
Two labor cases were filed against Asian Fisheries
Development Center-Aquaculture Department (SEAFDEC-
AQD) before the NLRC. The private respondents claim that
they have been wrongfully terminated from their
employment by SEAFDEC. SEAFDEC filed a Motion to
Dismiss, alleging that it is an international inter-
government organization composed of various Southeast
Asian countries, and that therefore, the NLRC does not have
jurisdiction over it.
SEAFDEC is an international agency entitled to functional
immunity.
SEAFDEC is an international agency enjoying diplomatic
immunity, enjoying functional independence and freedom
from control of the state in whose territory its office is
located. One of the basic immunities of an international
organization is immunity from local jurisdiction, i.e., that it
is immune from the legal writs & processes issued by the
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 government may
interfere in their operations or even influence or control its
policies and decisions of the organization; besides, such
objection to local jurisdiction
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would impair the capacity of such body to discharge its
responsibilities impartially on behalf of its member-states.
INTERNATIONAL CATHOLIC MIGARATION
COMMISSION v. CALLEJA
G.R. No. 97468-70 (1993)
Private respondent labor unions operating in the
International Catholic Migration Commission – a Vietnam
War refugee processing center, non- profit & UN registered
– and of the International Rice Research Institute filed
petitions for Certification Election for the determination of
the sole and exclusive bargaining agents of rank and file
employees therein.
ICMC and  They were international organizations
IRRI: registered with the UN and hence enjoy
diplomatic immunity.
 They were also subsequently granted the
status of a specialized agency by the
Philippine government with also the
corresponding immunities and
privileges.
 As such, they could not be subject to
certification elections.
ICMC and IRRI have diplomatic immunity.
Specialized agencies are international organizations having
functions in particular fields. The grant of immunity from
local jurisdiction is necessitated by their international
character and respective purposes. The objective is to avoid
the danger of partiality and interference by the host country
in their internal workings.
Conduct of certification elections is violative of diplomatic
immunity.
This immunity grants international organizations immunity
from any form of legal process. While certification elections
are not suits against these organizations per se, they cannot
be viewed as isolated processes; they could trigger off a
series of events in the collective bargaining process which
can lead to the eventuality of court litigation.
Functional immunity is available to international
organizations.
CLASS NOTES
REGINA v. BARTLE AND THE COMMISSIONER
OF POLICE FOR THE METROPOLIS AND
OTHERS, EX PARTE PINOCHET
[1999] UKHL 17 (24th March, 1999); 38 ILM 581
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(*Trivia: The petitioner in this case is named “Regina”
because the action was brought in the name of the Queen
of the United Kingdom – Ed.)
Pinochet [Pee-no-chet; not -shey] became the head of state
of Chile, after a successful coup. During the period of the
Pinochet regime, appalling acts of barbarism were
committed in Chile and elsewhere in the world: torture,
murder, unexplained disappearance of individuals, all on a
large scale. After stepping down as President, he assumed a
lifetime seat in the Chilean Senate. Sen. Pinochet denied the
allegations against him. In 1998, Pinochet came to the UK
for medical treatment. The judicial authorities in Spain
sought to extradite him in order to stand trial in Spain on a
large number of charges.
Pinochet:  He was a head of state during the time
the alleged acts were committed and
therefore subject to sovereign immunity
(subject matter jurisdiction/rationae
materiae)
 UK and Spain had no jurisdiction because
the acts were committed in Chile
(jurisdiction over his person/
rationae personae)
Although Pinochet is entitled to immunity as a former
head of state, acts of torture or international crimes are
not considered as “OFFICIAL ACTS” and are therefore not
covered by his immunity.
Under customary international law, it is accepted that a
state is entitled to expect that its former head of state will
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 the current
government of the state of which he was once the head. The
immunity is accorded for the benefit not of the former head
of the state himself but for the state, and any international
law obligations are owed to that state and not the
individual.
The rationale is the same for former heads of state as it is
for current heads of state. In each case, the obligation in
international law is owed to the state, not the individual,
though in the case of a current head of state, he will have a
concurrent immunity rationae personae. It is the state alone
that can waive immunity, which Chile did not do in this case.
As to the double criminality doctrine, not all the crimes as
charged are extradition crimes, so, Pinochet can be
extradited with regard to charges after Sept. 29, 1988 (date
when Torture became a crime in the UK). The Principle of
Double Criminality requires that the conduct complained of
must constitute a crime under the law of both Spain and of
the UK. The relevant date is the conduct date - meaning, that
the conduct should be a crime in the
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UK at the time it was committed, and not at the time the
extradition was sought (request date). Pinochet as a former
head of state enjoys immunity, but torture as defined under
the Torture convention cannot be a public function, so he
does not enjoy immunity with regard to these acts
committed after Sept. 29, 1988.
Torture is now an international crime on its own.
International Law prohibiting torture has the character of
jus cogens or a peremptory norm, i.e. one of those rules
which have a particular status. Universal Jurisdiction over
torture is justified by its jus cogens nature. Important points
from the torture convention:
 Torture under the Convention can only be committed
by "a public official or other person acting in an
official capacity", but these words include a head of
state. A single act of official torture is "torture";
 Superior orders provide no defense;
 If the states with the most obvious jurisdiction (the
Art. 5(1) states) do not seek to extradite, the state
where the alleged torturer is found must prosecute
or, apparently, extradite to another country
(universal jurisdiction).
 There is no express provision dealing with state
immunity of heads of state, ambassadors or other
officials.
 Since Chile, Spain and the UK are all parties to the
Convention, they are bound under treaty by its
provisions WON such provisions would apply in the
absence of treaty obligation. Chile ratified the
Convention with effect from Oct. 30, 1988 and the UK
with effect from Dec. 8, 1988.
ATTORNEY GENERAL OF ISRAEL v. EICHMANN
36 ILR 277 (Israel Sup. Ct. 1962)
Eichmann was an important Nazi bureaucrat who oversaw
the Final Solution. He was a high-ranking SS officer who
played a central role in the planning and implementation of
the persecution of Jews in Germany, Poland, Hungary and
several other countries before and during World War II. At
the end of the war he escaped capture as a war criminal. He
fled to Argentina where he lived and worked under an alias.
Eichmann was eventually tracked down by Israeli
intelligence agents. Israel doubted that Argentina would
cooperate in the extradition of Eichmann, so in 1960
Eichmann was kidnapped (he was drugged) and taken
secretly to Israel for prosecution. The Eichmann trial heard
scores of witnesses about the Nazi atrocities. Eichmann was
later convicted, executed, cremated and his ashes scattered
on the Mediterranean so as not to create a shrine for his
perverse admirers upon orders of the Israeli Supreme Court.
Eichmann:  Israel exceeded its jurisdiction when he
was abducted and brought before
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Israeli’s courts;
He is immune from suit since he acted in
behalf of his state;
He cannot be punished under a
retroactive criminal law (Nazi
Collaborators Act) since Israel was not
yet a state when the alleged offences
were committed.
Israel had jurisdiction as crimes against humanity are
subject to universal jurisdiction.
The State of Israel was entitled, pursuant to the principle
of universal jurisdiction and acting in the capacity of
guardian of international law and agent for its enforcement,
to try the appellant. Israel also acquired the right to try
Eichmann upon being a member of the United Nations so
that it is immaterial that the State of Israel did not exist at
the time the offenses were committed. It was also held that
Eichmann’s abduction did not have any bearing on the
jurisdiction of the Israeli Court to hear the case. Ultimately,
there is an absence of immunity for crimes against
humanity.
“On jurisdiction: The principle of territorial sovereignty
merely requires that the State exercise its power to punish
within its own borders, not outside them; that subject to
this restriction every State may exercise a wide discretion
as to the application of its laws and the jurisdiction of its
courts in respect of acts committed outside the State; and
that only in so far as it is possible to point to a specific rule
prohibiting the exercise of this discretion . . . is a State
prevented from exercising it. That view was based on the
following two grounds: (1) It is precisely the conception of
State sovereignty which demands the preclusion of any
presumption that there is a restriction on its independence;
& (2) Even if it is true that the principle of the territorial
character of criminal law is firmly established in various
States, it is no less true that in almost all of such States
criminal jurisdiction has been extended . . . so as to embrace
offences committed outside its territory. . .
“However, it is the universal character of the crimes in
question which vests in every State the power to try those
who participated in the preparation of such crimes, and to
punish them therefor. It follows that the State which
prosecutes and punishes a person for that offence acts
solely as the organ and agent of the international
community, and metes out punishment to the offender for
his breach of the prohibition imposed by the law of nations.
“On manner of arrest (kidnapping from Argentina):
(a) In the absence of an extradition agreement between the
State to which a "fugitive offender" has been brought for
trial and the country of "asylum" . . . and even if there
existed such an agreement . . . but the offender was not
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extradited . . . in accordance therewith, the Court will not
investigate the circumstances in which he was detained and
brought to the area of jurisdiction (Sir: the “Ma-and- Pa”
doctrine, originally from Ker v. Illinois).
(b) This also applies if the offender's contention be that the
abduction was carried out by the agents of the State
prosecuting him, since in such a case the right violated is
not that of the offender, but the sovereign right of the State
aggrieved.
(c) the aggrieved State may condone the violation of its
sovereignty and waive its claims, including the claim for the
return of the offender to its territory, and such waiver may
be explicit or by acquiescence.
“Appellant is a "fugitive from justice" from the point of view
of the law of nations, since the crimes that were attributed
to him are of an international character and have been
condemned publicly by the civilized world; therefore, by
virtue of the principle of universal jurisdiction, every
country has the right to try him. This jurisdiction was
automatically vested in the State of Israel on its
establishment in 1948 as a sovereign State. Therefore, in
bringing the appellant to trial, it functioned as an organ of
international law and acted to enforce the provisions
thereof through its own law. Consequently, it is immaterial
that the crimes in question were committed when the State
of Israel did not exist, and outside its territory The moment
it is admitted that the State of Israel possesses criminal
jurisdiction both according to local law and according to the
law of nations, it must also be conceded that the Court is
not bound to investigate the manner and legality of the
[arrest and]...detention.” (Karichi Notes, 2010)
KER v. ILLINOIS
119 U.S. 436 (1886)
Ker was charged to have committed Larceny in Illinois. After
the commission of the alleged offense, he went to Peru. The
Governor of Illinois, made his requisition to the Secretary of
State of the US for a warrant requesting the extradition of
the defendant to Cook County by the Republic of Peru. The
President of the US issued his warrant directed to a
messenger (Julian), to receive Ker from the authorities of
Peru, in compliance with the treaty between the US and
Peru. The messenger, having the necessary papers, arrived
in Lima, but, without presenting them to any officer of the
Peruvian government or making any demand on that
government for the surrender of Ker, forcibly and with
violence arrested him, placed him on board the US vessel
Essex in which he was carried a prisoner to San Francisco,
California. The process of the criminal court was served
upon him, and he was held to answer the indictment already
mentioned. Ker alleged that he was in fact kidnapped from
Peru and brought to the country against his will.
According to him, he was also
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refused any opportunity for communication with any person
or seeking advice for legal assistance.
Ker: He was denied due process of law and that
the abduction violated the US-Peru
Extradition Treaty.
Ker was not denied due process.
Due process of law is complied with when the party is
regularly indicted by the proper grand jury in the state
court, has a trial according to the forms and modes
prescribed for such trials, and when in that trial and
proceedings he isn’t deprived of rights to which he is
lawfully entitled. For mere irregularities in manner in which
he was brought into the custody of the law, he isn’t entitled
to say that he shouldn’t be tried for the crime with
which he is charged in a regular indictment.
This treaty of extradition doesn’t provide that a party fleeing
from the US to escape punishment for crime becomes
thereby entitled to an asylum in the country to which he has
fled. It isn’t contended that Peru couldn’t have ordered Ker
out of the country on his arrival, or at any period of his
residence there. Nor can it be doubted that Peru could, of
its own accord, without any demand from the US, have
surrendered Ker to an agent of Illinois, and this surrender
would’ve been valid within the dominions of Peru. The right
of the Peruvian government to voluntarily give a party, in
Ker’s condition, an asylum in 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 to limit this right in the case of one who
is proved to be a criminal fleeing from justice; so that, on
proper demand and proceedings had therein, the
government of the country of the asylum shall deliver him
up to the country where the crime was committed. And to
this extent, the treaty does regulate or impose a restriction
upon the right of the government of the country of the
asylum to protect the criminal from removal. In this case,
the treaty wasn’t called into operation or relied upon.
The Court pronounced a veritable “Ma- and Pa-
Doctrine” – the manner of arrest is no longer relevant,
granted the accused is subjected to a fair
and impartial trial.
CLASS NOTES
UNITED STATES v. ALVAREZ-MACHAIN
504 US 655 (1991)
Humberto Alvarez-Machain is a medical doctor, indicted for
participating in the kidnap and murder of US-DEA special
agent Enrique Camarena Salazar and a Mexican pilot
working with Camarena, Alfredo Zavala-Avelar. It was
alleged that Machain participated by prolonging the
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Camarena’s life so that others could further torture and
interrogate him. The US sought his extradition but the
Mexican government did not cooperate. Machain was then
forcibly kidnapped by Mexican nationals hired by the DEA
from his office in Guadalajara, Mexico, flown by private
plane to El Paso, Texas, where he was arrested by DEA
officials.
Alvarez-  US courts do not have jurisdiction over
Machain: the case because the abduction violated
the US-Mexico Extradition Treaty.
US courts have jurisdiction over the case notwithstanding
the abduction of Machain.
The court in interpreting the treaty ruled that there is
nothing about the obligation of the US and Mexico to
refrain from forcible abductions of people from the territory
of the other nation, or the consequences under the Treaty
if such an abduction happens. It also found that finds that in
the history of negotiation and practice under the treaty,
there is no showing that abduction outside of the Treaty
constitutes a violation. , Since his abduction was not in
violation of the Extradition Treaty, therefore the Ker
doctrine is applicable to this case. The fact that Machain was
forcibly abducted does not therefore prohibit his trial in a
court in the United States for violation of criminal laws of
the United States. However, in the end Machain was
acquitted for insufficiency of evidence against him.
SOSA v. ALVAREZ
542 US 692 (2004)
Upon his acquittal from the charges lodged by the DEA,
Alvarez-Machain sued Sosa and a DEA operative, claiming
damages from the US under the Federal Torts Claim Act for
his false arrest. FTCA authorizes suits for personal injury
caused by a negligent and wrongful act or omission of an
employee of the government while acting within the scope
of his office (like the DEA operative). He was also seeking
damages from Sosa under the Alien Torts Statute for a
violation of the law of nations. ATS provides that “district
courts shall have original jurisdiction of any civil action by
an alien for a tort only, committed in violation of the law of
nations or a treaty of the US.
Alvarez-Machain’s claims based on the ATS and FTCA were
rejected by the US SC.
According to the court, it cannot exercise jurisdiction over
the claim of Alvarez-Machain. Accordingly, the FTCA is
provided an insufficient basis for the suit, even if abducting
the doctor from Mexico violated customary norms of
international law. Accordingly, while the FCTA does
provides a waiver of immunity of the US government 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 injuries
suffered in a foreign country. In this case, the abduction of
Alvarez-Machain occurred in Mexico so the exception
clearly applies, hence, the US government cannot be held
liable.
As for the ATS, the court said that it is a jurisdictional statute
creating no new causes of action. The reasonable inference
from history and practice is that the ATS was intended to
have practical effect the moment it became law, on the
understanding that the common law would provide a cause
of action for the modest number of international law
violations thought to carry personal liability at the time:
offenses against ambassadors, 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 under federal common law for
violations of any international norm with less definite
content and acceptance among civilized nations than the
18th-century paradigms familiar when the ATS was enacted.
Accordingly, actionable violations of international must be
of a norm that is specific, universal, and obligatory. A single
illegal detention of less than a day, followed by the transfer
of custody to lawful authorities and a prompt arraignment,
violates no norm of customary international so well defined
as to support the creation of a federal remedy for Alvarez-
Machain.
STATE v. EBRAHIM
1991 (2) SALR 553
Ismail Ebrahim is a South African citizen who was a member
of the military wing of the African National Congress (ANC).
In 1964, he was convicted of several acts of sabotage and
sentenced to 15 years imprisonment and released in
1979. Thereafter, he was restricted by
executive order to the district of Pinetown in Natal. He fled
to Swaziland while the restriction order was still in force. He
was forcibly abducted from his house in Swaziland by two
men who informed him that they were members of the
South African Police. He was bound, blindfolded and gagged
and taken across the border into South Africa to a group of
armed white men. They questioned him about the activities
of the ANC. He inferred they were members of the security
police because they were permitted to pass through an army
road blockade without search or questioning. In South
Africa, he was formally arrested, and was charged with
treason.
Ebrahim:  The court did not have jurisdiction over
his case because he was abducted by
agents of the South African government
The court does not have jurisdiction. Thus, Ebrahim’s
conviction and sentence cannot stand.
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The South African common law is Roman-Dutch law. The
unlawful removal of a person from one jurisdiction to
another is regarded as abduction and as a serious breach of
the law in Roman-Dutch law. The individual must be
protected against illegal detention and abduction, the
bounds of jurisdiction must not be exceeded, sovereignty
must be respected, the legal process must be fair to those
affected and abuse of law must be avoided in order to
protect and promote the integrity of the administration of
justice. This applies equally to the state. When the state is a
party to a dispute, as for example in criminal cases, it must
come to court with "clean hands". When the state itself is
involved in abduction across international borders, as in the
present case, its hands are not clean.
JOHN DOE I, et.al. v. UNOCAL
963 F. Supp. 880 (1997)
Plaintiffs are farmers from Burma. They brought a class
action against Unocal, Total, the Myanmar Oil and Gas
Enterprise (MOGE), the State Law and Order Restoration
Council (SLORC), and individual officers of Unocal. They
allege that SLORC is a military junta that seized control in
Burma in 1988, and MOGE is a state-owned company
controlled by SLORC that produces and sells energy
products. Plaintiffs seek injunctive, declaratory and
compensatory relief for alleged international human rights
violations perpetrated by defendants in furtherance of
defendants Unocal, Total and MOGE's joint venture, the
Yadana gas pipeline project.
UNOCAL:  Moved to dismiss plaintiffs' complaint
for lack of subject-matter jurisdiction
pursuant to Federal Rule of Civil
Procedure 12(b)(1)
MTD was GRANTED as to SLORC and MOGE because they
are entitled to sovereign immunity pursuant to the Foreign
Sovereign Immunities Act (FSIA).
Under the FSIA, a foreign state is immune from suit, and
federal courts lack subject matter jurisdiction over claims
against the foreign state, unless one of the enumerated
exceptions applies. The FSIA provides a general exception to
jurisdictional immunity where: [1] the action is based upon
a commercial activity carried on in the United States by the
foreign state; or [2] upon an act performed in the United
States in connection with a commercial activity of the
foreign state elsewhere; or [3] upon an act outside the
territory of the United States in connection with a
commercial activity of the foreign state elsewhere and that
act causes a direct effect in the United States. In this case,
plaintiffs contended that SLORC and MOGE are not entitled
to immunity because this case falls within clauses 2and 3 of
the commercial activity exception. However, the court
found that plaintiff’s allegations were not enough to sustain
a finding that the two exceptions applied in this
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case. Hence, the case was dismissed as to SLORC and MOGE
because of their sovereign immunity.
District Court has subject-matter jurisdiction over UNOCAL
under the Alien Tort Claims Act (ATCA).
As for the plaintiffs’ ACTA claim, said law provides that the
district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States. The ATCA
requires:
1) a claim by an alien;
2) alleging a tort; and
3) a violation of international law.
In this case, the first two requirements were established
however, there was a dispute whether plaintiffs may assert
claims based on violations of international law against the
private defendants. Under the ATCA, jurisdiction may be
based on a violation of a jus cogens norm which enjoys the
highest status within international law. The prohibition
against official torture (as plaintiffs allege, have been
committed by defendants in concert with SLORC) rises to
the level of a jus cogens norm, and jurisdiction against
UNOCAL may be premised on a violation of that norm.
CASE CONCERNING THE ARREST WARRANT
OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF
CONGO v. BELGIUM)
ICJ Reports 2002, p. 3 (2002)
Belgium's Parliament voted a "law of universal jurisdiction",
allowing it to judge people accused of war crimes, crimes
against humanity or genocide. An investigating judge issued
"an international arrest warrant in absentia" against Mr.
Abdulaye Yerodia Ndombasi, the then Minister of Foreign
Affairs of the Democratic Republic of the Congo, charging
him, as perpetrator or co-perpetrator, with offences
constituting grave breaches of the Geneva Conventions of
1949 and of the Additional Protocols thereto, and with
crimes against humanity. Congo, in response, instituted
proceedings against Belgium for issuing said warrant.
Congo:  The international warrant issued by
Belgium constituted a violation of the
principle that a State may not exercise its
authority on the territory of another
State;
 Diplomatic immunity of the Minister of
Foreign Affairs of a sovereign state.
Belgium violated exceeded its authority when it issued the
international warrant of arrest against the former Minister
of Foreign Affairs of Congo. The latter is also entitled to
diplomatic immunity.
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The Court found that the issue of the arrest warrant against
Mr. Abdulaye Yerodia Ndombasi, and its international
circulation, constituted violations of a legal obligation of the
Kingdom of Belgium towards the Democratic Republic of the
Congo. They failed to respect the immunity from criminal
jurisdiction and the inviolability which the incumbent
Minister for Foreign Affairs of the Democratic Republic of
the Congo enjoyed under international law. The functions
of a Minister of Foreign Affairs are such that throughout the
duration of his or her office, he or she, when abroad enjoys
full immunity from criminal jurisdiction. That immunity and
inviolability protects the individual against any act of
authority of another state which would hinder him or her in
the performance of duties. No distinction can be drawn
between acts performed in an official capacity and those
claimed to have been performed in a private capacity or for
that matter, between acts performed before the person
concerned assumed office and acts committed during that
period.
However, the immunity from jurisdiction enjoyed by
incumbent Ministers for Foreign Affairs does not mean that
they enjoy impunity in respect of any crimes they might
have committed, irrespective of their gravity. Immunity
from criminal jurisdiction and individual criminal
responsibility are quite separate concepts. While
jurisdictional immunity is procedural in nature, criminal
responsibility is a question of substantive law. Jurisdictional
immunity may well bar prosecution for a certain period or
for certain offences; it cannot exonerate the person to
whom it applies from all criminal responsibility. The
immunities enjoyed under International law by an
incumbent or former Minister for Foreign Affairs do not
represent a bar to criminal prosecution in certain
circumstances:
 Such persons enjoy no criminal immunity under
international law in their own countries, and may
thus be tried by those countries' courts in accordance
with the relevant rules of domestic law.
 They will cease to enjoy immunity from foreign
jurisdiction if the State which they represent or have
represented decides to waive that immunity.
 After a person ceases to hold the office of Minister for
Foreign Affairs, he or she will no longer enjoy
al1 of the immunities accorded by international law
in other States.
 An incumbent or former Minister for Foreign Affairs
may be subject to criminal proceedings before certain
international criminal courts, where they have
jurisdiction
UNITED STATES v. PURGANAN
G.R. No. 148571 (2002)
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The DOJ received from the DFA NOTE VERBALE NO. 0522
containing a request for the extradition of Mark Jimenez to
the US. Attached to the note were the warrant of arrest
issued by the US district court and other supporting
documents. Secretary of Justice Drilon issued DO 249
designating and authorizing a panel of attorneys to handle
the case. Pending evaluation, Jimenez requested copies of
the official extradition request form the US Government, as
well as the documents attached thereto. Drilon denied the
requests saying that it is premature to furnish Jimenez with
a copies pending he evaluation, that the evaluation is not a
preliminary investigation since it is merely a procedure to
determine the requirements under the relevant law and
treaty have been complied with by the requesting
government (US); thus, the constitutionally guaranteed
rights of the accused in all criminal prosecutions are not
available to Jimenez.
Jimenez filed a case against Drilon claiming that his due
process rights were violated. He won in the first case but lost
in the second one (Secretary of Justice v. Hon. Lantion)
The US government then filed this third case for a petition
for the extradition of Jimenez. A warrant of arrest was
subsequently issued.
Jimenez:  He was entitled to basic due process
rights of notice and hearing during the
evaluation stage of the extradition
proceedings (subject of first two cases)
and before a warrant of arrest can be
issued against him.
Jimenez was not entitled to the basic due process rights of
notice and hearing during the evaluation stage of the
extradition proceedings and before warrant of arrest
could be issued against him.
The ultimate purpose of extradition proceedings is to
determine whether the request expressed in the petition,
supported by its annexes & the evidence that may be
adduced during the hearing of the petition, complies with
the Extradition Treaty and Law; and whether the person
sought is extraditable. The proceedings are intended merely
to assist the requesting state in bringing the accused - or the
fugitive who has illegally escaped - back to its territory, so
that the criminal process may proceed therein. By entering
into an extradition treaty, RP is deemed to have reposed its
trust in the reliability or soundness of the legal and judicial
system of its treaty partner, as well as in the ability and the
willingness of the latter to grant basic rights to the accused
in the pending criminal case therein.
Extradition proceedings are not equivalent to a criminal
case in which guilt or innocence is determined.
Consequently, an extradition case is not one in which the
constitutional rights of the accused are necessarily
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available. It is more akin, if at all, to a court’s request to
police authorities for the arrest of the accused who is at
large or has escaped detention or jumped bail. Having once
escaped the jurisdiction of the requesting state, the
reasonable prima facie presumption is that the person
would escape again if given the opportunity. Potential
extraditees do not have the right to a hearing for the
issuance of a warrant of arrest nor the right to bail granted
by the RTC.
Accordingly, extradition is the removal of an accused from
the Philippines with the object of placing him at the disposal
of foreign authorities, to enable to requesting state to hold
him in connection with any criminal investigation directed
against him, or the execution of a penalty imposed on him
under the penal or criminal law of the requesting state or
govt.
The Extradition Procedure is as follows:
1. The Extradition Request – The request is made by the
Foreign Diplomat of the Requesting State addressed
to the Sec of Foreign Affairs (Philippines) which
contains the copy of the criminal charge, recital of the
acts for which extradition is requested, the text of the
applicable law, and such other supporting
documents. It t is the task of the executive authority
to evaluate the sufficiency of the request pursuant to
Sec 5 of PD 1069 and the corresponding provision in
the extradition treaty (Article 7 RP-US Treaty).
2. The Extradition Petition – upon the finding made by
the SFA that he extradition request is sufficient and
complete in form and substance, he shall deliver the
same to the SOJ (Drilon) who shall immediately
designate and authorize the attorney to handle the
case. The lawyer so designated shall file a written
petition with the RTC for the court to take
consideration of the extradition request. The judge
shall summon the extraditee and he may issue a
warrant of arrest if it appears that the arrest will best
serve the ends of justice.
3. The Extradition Hearing – The treaty does not specify
the procedure but merely state that the proceeding
shall in so far as practicable be not inconsistent with
summary proceedings. The trial court determines
WoN the offense mentioned is (1) extraditable based
on the application of dual criminality rule and (2) if
the offense for which extradition is requested is a
political one.
The court also laid down five postulates of extradition in this
case:
1. Extradition is a major instrument for the suppression
of crime. With the advent of easier and faster means
of international travel, the flight of affluent criminals
from one country to another for the purpose of
committing crime and evading prosecution has
become more frequent. Accordingly, governments
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are adjusting their methods of dealing with criminals
and crimes that transcend international boundaries.
2. The Requesting State Will Accord Due Process to the
Accused. A duly authorized representative’s signature
on an extradition treaty signifies our confidence in the
capacity and the willingness of the other state to
protect the basic rights of the person sought to be
extradited. That signature signifies our full faith that
the accused will be given, upon extradition to the
requesting state, all relevant and basic rights in the
criminal proceedings that will take place therein;
otherwise, the treaty would not have been signed, or
would have been directly attacked for its
unconstitutionality.
3. The proceedings are Sui Generis. As pointed out in
Secretary of Justice v. Lantion extradition proceedings
are not criminal in nature.
4. Compliance shall be in GF. Fulfilling our obligations
under the Extradition Treaty promotes comity with
the requesting state. Failure to fulfill our obligations
thereunder paints a bad image of our country before
the world community. Such failure would discourage
other states from entering into treaties with us,
particularly an extradition treaty that hinges on
reciprocity. We are bound by pacta sunt servanda to
comply in good faith with our obligations under the
Treaty.
5. There is an underlying risk of flight. Persons to be
extradited are presumed to be flight risks. This prima
facie presumption finds reinforcement in the
experience of the executive branch: nothing short of
confinement can ensure that the accused will not flee
the jurisdiction of the requested state in order to
thwart their extradition to the requesting state.
CLINTON v. JONES
520 U.S. 681 (1997)
Clinton was the Governor of the Arkansas before he became
the President of the US. Jones worked as an employee of the
Arkansas Industrial Development Commission. According to
Jones, when that she was working as a state employee staff
at the registration desk in an official conference, Ferguson,
a former State Police officer, persuaded her to leave her
desk and to visit the Governor in a business suite at the
hotel, where he made "abhorrent" sexual advances that she
vehemently rejected. She filed a complaint against Clinton.
Clinton:  He filed a motion to dismiss claiming
presidential immunity (as he was already
the US President at that time)
Clinton is not immune from the suit filed by Jones.
The president has immunity from damages claims arising
out of official acts extending to the outer perimeter of his
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authority. The immunity serves the public interest in
enabling such officials to perform their designated
functions effectively without fear that a particular decision
may give rise to personal liability. The sphere of protected
action must be related closely to the immunity's justifying
purposes. However, presidential immunity does not extend
to unofficial conduct, which is what is involved in this case.
The court also said that with respect to acts taken in his
public character (official acts), the President may be
disciplined principally by impeachment, not by private
lawsuits for damages. Other than that, he is otherwise
subject to the laws for his purely private acts.
FORBES v. CHUOCO TIACO
G.R. No. L-6157 (1910)
Forbes (then Governor- General of the Philippines) at the
request of the Imperial Government of China ordered the
deportation of Chuoco, a Chinese National, along with 11
others. Chuoco Tiaco returned to the Philippines and filed a
complaint against Forbes and the officials he instructed to
carry out the deportation (Harding and Trowbridge) for
damages.
Forbes:  The CFI lacked jurisdiction over him and
his officials pursuant to immunity.
The action was brought against Forbes and the others in
their official capacities. Consequently, the CFI lacked
jurisdiction over them.
The Governor General, in his official capacity, being one of
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
performs in carrying out what he honestly deems to be the
duties of his office as are the other coordinate branches of
the Government. The court also explained that the
executive department has the power to expel undesirable
aliens from the country.
Moreland, J., concurring:
In explaining the Principle of Non-liability, he said that it is
undoubted that neither the Legislature, nor a member
thereof is liable in damages for any act which it performs,
believing that it had the power so to act, even though it
ultimately appears that such act is entirely outside of its
powers and jurisdiction and is wholly and utterly void. It is
equally undoubted that neither the courts, constituting
another coordinate branch of the Government, nor
members thereof, are, under similar circumstances, liable
in damages. He believed that what the Governor-General
exercised were functions essentially judicial overlapping
with executive functions. Thus, if a judge acted in place of
the GG, he would not be civilly liable. Therefore, so must the
Governor-General. The subject matter is the same, the
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mental process involved is the same and the discretion used
is the same. Whenever, therefore, the State confers judicial
powers upon an individual, it confers them with 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
produce in him an inevitable tendency, insidious in
character, constant in pressure, certain in results, to protect
himself by following lines of least resistance and to temper
the force of his executive arm in places and upon occasions
where there was strong opposition, either by powerful and
influential persons or by great federated interests, and
where public prejudice was intense, active, and threatening.
DAVID v. MACAPAGAL-ARROYO
G.R. No. 171396 (2004)
Arroyo issued PP 1017 declaring a state of national
emergency, considering the acts and activities of the
extreme Left and the extreme Right to be a clear and present
danger to the safety and the integrity of the Philippine State
and of the Filipino people. On the same day, she issued G. O.
No. 5 implementing PP 1017 "to immediately carry out the
necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless
violence." One week after the declaration of a state of
national emergency, she lifted PP 1017. She issued
Proclamation No. 1021, declaring that the state of national
emergency has ceased to exist.
Petitioners assailed the constitutionality of Arroyo’s acts
before the SC. Incidental to the determination of WON the
petitioners had locus standi to file the case, the SC also
occasioned to rule on the propriety of impleading President
Macapagal-Arroyo in the suit.
It was improper to implead President Macapagal-Arroyo in
the suit as she is entitled to Presidential Immunity.
According to the SC, settled is the doctrine that the
President, during his tenure of office or actual incumbency,
may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations
while serving as such. Furthermore, it is important that he
be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance
of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch
and anything which impairs his usefulness in the discharge
of the many great and important duties imposed upon him
by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the
President is not accountable to anyone. Like any other
official, he remains
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accountable to the people but he may be removed from
office only in the mode provided by law and that is by
impeachment.
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANY v. ITALY: GREECE INTERVENING)
ICJ Judgment of 3 February 2012
Italy allowed civil claims to be brought against Germany in
the Italian courts, seeking reparation for injuries caused by
violations of international humanitarian law committed by
the German Reich during the Second World War. According
to Germany, Furthermore, Italy has breached Germany’s
jurisdictional immunity.
Germany filed an Application instituting proceedings
against Italy before the ICJ, in respect of a dispute
originating in violations of obligations under international
law allegedly committed by Italy through its judicial practice
“in that it has failed to respect the jurisdictional immunity
(or state immunity) which Germany enjoys under
international law”.
Germany: Italy violated its immunity through the
following:
 By instituting the proceedings;
 By taking measures of constraint against
Villa Vigoni, a German State property
situated in Italian territory;
 By declaring enforceable in Italy decisions
of Greek civil courts rendered against
Germany on the basis of acts similar to
those which gave rise to the claims
brought before Italian courts
Italy:  Territorial tort principle should be applied
in this case;
 Serious violations of the principles of
international law applicable to armed
conflict;
 Violation of jus cogens norms, which have
greater value than rules of international
law; and
 As a measure of last resort, since the
claimants in the cases filed before the
Italian courts had no other means of
redress, they had to entertain them
Italy violated Germany’s jurisdictional immunity.
Although there has been much debate regarding the origins
of State immunity and the identification of the principles
underlying that immunity in the past, the ILC concluded in
1980 that the rule of State immunity had been “adopted as
a general rule of customary international law solidly rooted
in the current practice of States”. That conclusion was
based upon an extensive survey of State practice and is
confirmed by the record of
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national legislation, judicial decisions and the comments of
States on what became the United Nations Convention on
the Jurisdictional Immunities of States and their Property. It
believes that practice to show that, whether in claiming
immunity for themselves or according it to others, States
generally proceed on the basis that there is a right to
immunity under international law, together with a
corresponding obligation on the part of other States to
respect and give effect to that immunity.
The customary international law in force when the claims
were filed before Italian courts should apply because of
Article 13 of the International Law Commission Articles on
Responsibility of States for Internationally Wrongful Acts.
The article states that the compatibility of an act with
international law can be determined only by reference to
the law in force at the time when the act occurred.
Regarding the matter of Villa Vigoni, the ICJ held that based
on Article 19 of the UN Convention, measures of constraint
may only be taken against property belonging to another
state if the property is being used for non- government
commercial purposes. As a center for cultural exchange,
Villa Vigoni is clearly being used for governmental non-
commercial purposes. Thus, Italy violated Germany’s
immunity. Regarding the matter of allowing Greek decisions
to be enforced in Italy, the ICJ held that such an act also
amounts to exercising jurisdictional power. Since Italy
exercised jurisdictional power in granting exequatur, it
violated Germany’s immunity.
As for the territorial tort principle, it cannot apply because
customary international law shows that a state should be
accorded immunity for torts committed by its armed forces
on the territory of another state. The territorial tort
principle is based on Article 11 of the European Convention,
which provides that State A cannot claim immunity from
State B in proceedings which relate to redress for injury, if
such injury occurred in State A while State B was present in
the former’s territory. Article 11 must be read in
conjunction with Article 31, which precludes the actions of
armed forces from affecting the immunities or privileges
enjoyed by a state. Article 12 of the United Nations
Convention provides that a state cannot invoke immunity if
it caused injury within another state. This article does not
make any express mention of the acts of armed forces, but
the International Law Commission’s commentary says that
it does not apply to situations involving armed conflicts. It
cannot be held that the acts of the German military affected
Germany’s state immunity.
As for Italy’s remaining defenses, they are not applicable
because the acts were committed in the course of an armed
conflict, and the current status of customary international
law has not developed to the point where actions of armed
forces which amount to serious violations of international
human rights are excluded from
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state immunity. Furthermore, jus cogens norms prevail over
state immunity. State immunity being procedural in
character, does not involve determining the lawfulness of
the actions brought before a state’s courts. Lastly, nothing
in international law shows that the entitlement of a State to
immunity depends on the existence of effective alternatives
to securing redress.
Judge Trinidade, dissenting:
According to him, jus cogens cannot be deconstructed into
substantial and procedural. In order to avoid denial of justice
and impunity, jus cogens must stand above the prerogative
or privilege of state immunity. The tension between State
immunity and the right of access to justice should be
resolved in favor of the latter, particularly in cases of
international crimes. The “threshold of gravity” of the
breaches of human rights and of international humanitarian
law removes any bar to jurisdiction, in the quest for
reparation to victimized individuals. In relation to this, he
said that all mass atrocities should be considered in light of
the “threshold of gravity”. Furthermore, states cannot
waive rights which are inherent to human beings. In reality,
what jeopardizes international legal order are international
crimes, not individuals’ quest for reparation. Grave
breaches of human rights and international humanitarian
law are anti- juridical acts amounting to breaches of jus
cogens. Since they are breaches of jus cogens, they cannot
simply be disregarded by relying on State immunity.
Moreover, international crimes perpetrated by states (such
as the German Third Reich in this case) are neither acts jure
gestionis (commercial acts) nor acts jure imperii
(governmental acts). They are delicta imperii (crimes of the
government), which cannot be given immunity. What
cannot be waived in delicta imperii is the individual’s right
of access to justice. This includes the right to reparation for
the grave violations of the rights inherent to him as a
human. The term “immunity” was never meant to be a
principle or a norm of general application. It was never
intended to except jurisdiction on and cover up
international crimes. A finding of particularly grave
violations of human rights and of international
humanitarian law is a valuable test for the removal of any
bar to jurisdiction. He emphasized that it is absurd to
remove State immunity in trade relations or local personal
tort (e.g. traffic accidents) but not in international crimes.
State immunity is not supposed to stand in the way of the
realization of justice. Securing justice to victims includes
enabling them to seek and obtain redress for the crimes
they suffered.
One cannot embark on a wrongfully assumed and formalist
lack of conflict between procedural and substantive rules,
in effect unduly depriving jus cogens of its legal
consequences. Contrary to legal positivism, law
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and ethics go together and this must be kept in mind to
realize justice at both the national and international levels.
• Court: covered by immunity
• Sir:
• Could not file under domestic laws, because
forced labor is not absolutely prohibited.
• The case is controversial because we don't
know if the court was correct.
• Italy and dissenting
• Jus cogens prohibition should not be precluded
by procedural law. Substantive shall prevail over
procedural.
• Duty to provide redress for violation:
• Reparation - not limited to compensation
• Restoration of status quo ante
• Satisfaction - formal apology
• Duty to prosecute and punish
CLASS NOTES
QUESTIONS RELATING TO THE OBLIGATION
TO PROSECUTE OR EXTRADITE (BELGIUM v.
SENEGAL)
ICJ Judgment of 20 July 2012
Mr. Habré was President of Chad for 8 years, during which
large-scale violations of human rights were allegedly
committed, including arrests of actual or presumed political
opponents, detentions without trial or under inhumane
conditions, mistreatment, torture, extrajudicial executions
and enforced disappearances. After being overthrown, he
was granted political asylum by the Senegalese government
and he subsequently settled in Dakar.
Complaints were filed against Mr. Habré with a Belgian
investigating judge, for serious violations of international
humanitarian law, crimes of torture and the crime of
genocide. The complaints were based on crimes covered by
the Belgian Law of 1993 concerning the punishment of
serious violations of international humanitarian law, as
amended by the Law 1999, and by the Convention against
Torture. The Minister of Justice of Chad stated that the
Sovereign National Conference had officially lifted from the
former President all immunity from legal process. However,
when Belgium sought to extradite Mr. Habré, the Dakar
Court of Appeals held that, as “it could not extend its
jurisdiction to matters relating to the investigation or
prosecution of a Head of State for acts allegedly committed
in the exercise of his functions”; that Mr. Habré should “be
given jurisdictional immunity”, which “is intended to survive
the cessation of his duties as President of the Republic”; and
that it could not therefore “adjudicate the lawfulness of
*the+ proceedings and the validity of the arrest warrant
against a Head of State”.
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Senegal:  Charges concerned crimes committed
outside the territory of Senegal by a
foreign national against foreign nationals
and that they would involve the exercise
of universal jurisdiction, while the
Senegalese Code of Criminal Procedure
then in force did not provide for such
jurisdiction
Belgium:  The complaints filed before the Belgian
courts were based on crimes covered by
the Belgian Law of 1993 concerning the
punishment of serious violations of
international humanitarian law, as
amended by the Law 1999 and by the
Convention against Torture (CAT). The
Convention was ratified by Senegal on 21
August 1986, without reservation, and
became binding on it on 26 June 1987, the
date of its entry into force. Belgium
ratified the Convention on 25 June 1999,
without reservation, and became bound
by it on 25 July 1999.
Senegal is bound to extend its jurisdiction relating to the
prosecution of a Head of State of a foreign country under
the Convention against Torture.
Senegal’s failure to enact implementing legislation for the
CAT delayed the submission of this case to Senegalese
authorities, thus causing Senegal to breach its obligation
under Article 6 of the CAT to “immediately make a
preliminary inquiry into the facts” as soon as a suspect is
identified in the territory of the state party. The first
complaint against Habré was filed in Dakar, Senegal. It
“became imperative” for Senegal to conduct the
preliminary inquiry. Senegal failed to include any materials
demonstrating that it had carried out such an inquiry with
respect to Habré’s involvement. Senegal breached CAT
Article 7, which requires the state party having jurisdiction
over the territory where a person accused of offenses under
the CAT is found, to submit the case to its competent
authorities for prosecution or to extradite him.
The prohibition on torture is part of customary international
law and has become a peremptory norm (jus cogens).
However, the obligation to prosecute alleged perpetrators
of torture only arises after the Convention has entered into
force for that state party. Senegal’s obligations under the
Convention date back to June 1987 when Senegal joined the
CAT. There were a number of complaints regarding serious
offenses committed by Habré after that date for which
Senegal is obligated to prosecute. Belgium is entitled to
invoke Senegal’s compliance with the Convention beginning
in 1999 and has, in fact, requested Senegal’s compliance
since 2000 when the first complaint against Habré was filed
in Senegal.
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CASE CONCERNING ARMED ACTIVITIES ON
THE TERRITORY OF THE CONGO
(DEMOCRATIC REPUBLIC OF THE CONGO v.
UGANDA)
ICJ Reports 2005, p. 168 (2005)
Congo filed an Application instituting proceedings against
Uganda in respect of a dispute concerning “acts of armed
aggression perpetrated by Uganda on the territory of the
Democratic Republic of the Congo, in flagrant violation of
the United Nations Charter and of the Charter of the
Organization of African Unity”. Uganda allegedly violated
principles of conventional and customary law by engaging
in military and paramilitary activities against Congo, by
occupying its territory and by actively extending military,
logistic, economic and financial support to irregular forces
having operated there, by committing acts of violence
against nationals of the Congo, and by engaging in the
illegal exploitation of Congolese natural resources.
Uganda filed a counter-claim alleging involvement by Congo
in armed attacks against Uganda and in an attack on the
Ugandan Embassy and on Ugandan nationals in Kinshasa.
Accordingly, this was a violation of the immunity accorded
to diplomats pursuant to the Vienna Convention on
Diplomatic Relations.
Congo violated its obligations under the Vienna
Convention on Diplomatic Relations by launching attacks
on the Ugandan Embassy.
Through the attacks by members of the Congolese armed
forces on the premises of the Ugandan Embassy in Kinshasa,
and their maltreatment of persons who found themselves
at the Embassy at the time of the attacks, the Congo
breached its obligations under Article 22 of the Vienna
Convention on Diplomatic Relations. Furthermore, by the
maltreatment by members of the Congolese armed forces
of Ugandan diplomats on Embassy premises and at Ndjili
International Airport, Congo also breached its obligations
under Article 29 of the Vienna Convention.
D. International Responsibility
ILC Draft Articles on Responsibility of States for
Internationally Wrongful Acts (ILCDA), Art. 1.
Responsibility of a State for its
internationally wrongful acts
Every internationally wrongful act of a State entails
the international responsibility of that State.
International Responsibility, Generally
International responsibility arises as a consequence of
illegal acts or for failure of a state to observe obligations
under international law. (Magallona, 2005)
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It is the necessary corollary of a right, such that rights of an
international character involve international responsibility.
Thus, if a state violates an international obligation, it bears
responsibility for that violation. (Higgins, Chapter 9)
The basis of the rules on state responsibility, at present, is
the Draft Articles on Responsibility of States for
Internationally Wrongful Acts, prepared by the
International Law Commission.
Elements of Internationally Wrongful Acts
ILCDA, Art. 2.
Elements of an internationally
wrongful act of a State
There is an internationally wrongful act of a State
when conduct consisting of an action or omission:
a) is attributable to the State under
international law; and
b) constitutes a breach of an international
obligation of the State.
1. Attribution to state.
Owing to a state’s lack of physical being, it can
only act by and through its agents and
representatives. (Higgins, Chapter 9) As such, a
state can be subject to international responsibility
by “attribution”, that is, by considering the acts or
omissions committed by a person or state organ
which can be attributed to the state.
The rules on attribution to a state are discussed,
infra.
2. Breach.
There is a breach when a State violates a rule
contained in any source of international law. This
includes treaty provisions, customary norms as
well as general principles of international law. The
breach may relate to an obligation under a
customary norm or a conventional rule.
(Magallona, 2005)
Eight (8) Instances of State Attribution
Acts and omissions of certain persons or individuals are
attributed to the state as its own act in determining its
responsibility for an internationally wrong act. (Magallona,
2005)
The ILC provides for rules governing such attribution. They
may be categorized as follows:
1. Those pertaining to state organs or officials
 State organs; (ILCDA, Art. 4)
 State organ placed at the disposal of
another state (ILCDA, Art. 6)
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 State organ acting in excess of authority
(Art. 7)
2. Those pertaining to other individuals or groups
 Non-state organ or person empowered
by state’s domestic law; (ILCDA, Art. 5)
 Person or group under direction or
control of a state; (ILCDA, Art. 8)
 Person or group acting under color of
authority; (ILCDA, Art. 9)
 Insurrectional movement eventually
becoming the new government; (ILCDA,
Art. 10)
 State ratification. (ILCDA, Art. 11)
State organ. –
ILCDA, Art. 4.
Conduct of organs of a State
1. The conduct of any State organ shall be
considered an act of that State under
international law, whether the organ exercises
legislative, executive, judicial or any other
functions, whatever position it holds in the
organization of the State, and whatever its
character as an organ of the central Government
or of a territorial unit of the State.
2. An organ includes any person or entity which has
that status in accordance with the internal
law of the State.
The state organ contemplated is not limited to organs of the
central government. It extends to organs of whatever
classification, function or rank in the hierarchy. This
includes the armed forces, police, local government units
and administrative divisions. (Brownlie, Chapter 21)
Acts of the legislature are likewise covered. Responsibility
may arise when a legislature fails to incorporate certain
rules in domestic law per a treaty obligation. Acts of the
judiciary may also give rise to state responsibility, such as
when it declines to give effect to a treaty. (ibid.)
Acts of officials or state agents are also covered, whatever
may be their particular status or rank under domestic law
State organ placed at the disposal of another state. –
ILCDA, Art.6.
Conduct of organs placed at the disposal of a State
by another State
The conduct of an organ placed at the disposal of a
State by another State shall be considered an act of
the former State under international law if the
organ is acting in the exercise of elements of the
governmental authority of the State at whose
disposal it is placed.
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This deals with the limited situation in which an organ of
one state (A) is effectively put at the disposal of another
state (B) so that the organ may temporarily act for B’s
benefit and under its authority.
In this case, the organ acts exclusively for the purposes of
and on behalf of B and its conduct is attributed to B State
alone.
State organ acting in excess of authority. –
ILCDA, Art.7.
Excess of authority or contravention
of instructions
The conduct of an organ of a State or of a person
or entity empowered to exercise elements of the
governmental authority shall be considered an act
of the State under international law if the organ,
person or entity acts in that capacity, even if it
exceeds its authority or contravenes instructions.
Even if a state organ, acting in its official capacity,
committed an act or omission ultra vires or contrary to the
instructions of the state, such state will still incur
responsibility.
Thus, a state, in attempting to evade responsibility, cannot
invoke the defense that the organ went beyond its lawful
orders in committing the act or omission constituting the
breach.
Non-state organ or person empowered by state’s
domestic law. –
ILCDA, Art. 5.
Conduct of persons or entities exercising elements
of governmental authority
The conduct of a person or entity which is not an
organ of the State under article 4 but which is
empowered by the law of that State to exercise
elements of the governmental authority shall be
considered an act of the State under international
law, provided the person or entity is
acting in that capacity in the particular instance.
This is intended to take account of the increasingly common
phenomenon of parastatal entities, which exercise
elements of governmental authority in place of state
organs, as well as situations where former State
corporations have been privatized but retain certain public
or regulatory functions.
Example: private security firms contracted to act as
prison guards.
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Some writers (e.g. Crawford) are of the position that
a law which clothes entities with such powers is not
required. What is essential is the existence of state
authorization.
CLASS NOTES
Person or group under direction or control of a state. –
ILCDA, Art. 8.
Conduct directed or controlled by a State
The conduct of a person or group of persons shall
be considered an act of a State under international
law if the person or group of persons is in fact acting
on the instructions of, or under the direction or
control of that state in carrying out the
conduct.
This contemplates cases where state organs supplement
their own action by recruiting or instigating private persons
or groups who act as “auxiliaries” while remaining outside
the official state structure.
Control. – In order to determine whether there is a “real
link” between the private persons or groups and the state,
it becomes necessary to consider the degree of control
exercised by the latter over the former.
There are two tests for this purpose:
1. Effective Control Test
Control must have been exercised in respect to
each individual act or omission which constitutes
the breach. The private persons or groups must
have been mere agents of the state who were told
what had to be done at all stages.
This presents a higher threshold for attribution. A
general situation of dependence and support
would thus be insufficient to justify attribution.
This test was enunciated in the Case Concerning
Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. USA), supra.
2. Overall Control Test
Control must have gone “beyond the mere
financing and equipping of such forces” and must
have involved “participation in the planning and
supervision of military operations.”
This presents a lower threshold for attribution.
There need be no showing of actual or direct
control.
This test was enunciated in the case of Prosecutor
v. Tadid, supra, and was applied in the Case
Concerning Application of the
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Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), infra.
These apparently conflicting tests may be reconciled:
 When dealing with the matter of individual
criminal responsibility and the application of the
rules of international humanitarian law (e.g. in
the case of Tadid), use the Overall Control Test;
 When dealing with the matter of state
responsibility, use the Effective Control Test.
CLASS NOTES
Person or group acting under color of authority. –
ILCDA, Art. 9.
Conduct carried out in the absence or default of
the official authorities
The conduct of a person or group of persons shall
be considered an act of a State under international
law if the person or group of persons is in fact
exercising elements of the governmental authority
in the absence or default of the official authorities
and in circumstances such as to call for the
exercise of those elements of authority.
This deals with the exceptional case of conduct in the
exercise of elements of the governmental authority by a
person or group of persons acting in the absence of the
official authorities and without any actual authority to do
so. The exceptional nature of the circumstances envisaged
in the article is indicated by the phrase “in circumstances
such as to call for”. Such cases occur only rarely, such as
during revolution, armed conflict or foreign occupation,
where the regular authorities dissolve, are disintegrating,
have been suppressed or are for the time being inoperative.
They may also cover cases where lawful authority is being
gradually restored, e.g. after foreign occupation. (ILC,
Comments on the Draft Articles, 2001)
Insurrectional movement eventually becoming the new
government. –
ILCDA, Art. 10.
Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement
which becomes the new Government of a State
shall be considered an act of that State under
international law.
2. The conduct of a movement, insurrectional or
other, which succeeds in establishing a new
State in part of the territory of a pre- existing
State or in a territory under its administration
shall be considered an act of
the new State under international law.
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3. This article is without prejudice to the
attribution to a State of any conduct, however
related to that of the movement concerned,
which is to be considered an act of that State
by virtue of articles 4 to 9.
No government can be held responsible for the conduct of
rebellious groups committed in violation of its authority.
Hence, if an insurrection is successfully abated, the state
cannot be held liable for any culpable violation of
international law committed by the insurrectionists
(granted the State was itself not guilty of bad faith or
negligence).
This article applies in cases where the insurrection is
successful and the original government is overthrown. Such
movement which had installed itself as the new government
or establishes a new state will be liable for the acts it
committed during the insurrection which would constitute
breaches of international law.
State ratification. –
ILCDA, Art. 11.
Conduct acknowledged and adopted by a State as
its own
Conduct which is not attributable to a State under
the preceding articles shall nevertheless be
considered an act of that State under international
law if and to the extent that the State acknowledges
and adopts the conduct in question
as its own.
While purely private conduct cannot generally be attributed
to a state, this article covers situations where such
attribution can be made “to the extent that the state
acknowledges and adopts the conduct in question as its
own.”
Note that this does not cover mere support or
endorsement. It must consist in acknowledgement or
adoption of the acts as the state’s own by way of official act.
In the Case Concerning United States Diplomatic and
Consular Staff in Tehran (United States Of America v.
Iran), supra, the ratification was done by a decree
issued by Ayatollah Khomeini, in which he announced
that no release of the US hostages were to be made
unless the US turned over the Shah of Iran to them.
By that decree, the Court ruled that the act of
occupation of the US Embassy in Tehran by militants
was effectively transformed into an act of the Iranian
State itself.
CLASS NOTES
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Rules on Breach
There is a breach of an international obligation when an act
or omission of a state is not in conformity with what is
required of it by that obligation, regardless of its origin or
character. (ILCDA, Art. 12) It can arise from breaches of
bilateral obligations, obligations owed to some states or to
the international community as a whole. (ILC, Comments on
the Draft Articles, 2001)
In the context of state responsibility, there is no distinction
between contractual and tortious responsibility. (Rainbow
Warrior Arbitration, infra.)
In considering the breach, the following rules must be
considered:
 The state must be bound by the obligation in
question at the time the act occurs. (ILCDA, Art.
13)
 The breach occurs at the moment the act is
performed, even if its effects continue. (ILCDA,
Art. 14 [1])
 A breach of a continuing character extends over
the entire period during which the act continues
and remains not inconformity with the
international obligation. (ILCDA, Art. 14 [2])
 A breach committed through a series of actions or
omissions defined in aggregate as wrongful
occurs when the aggregate of acts or omissions is
already sufficient to constitute the wrongful act
prohibited by the obligation. (ILCDA, Art. 15)
o The fact of breach continues for as long
as the actions or omissions are repeated
and remain not in conformity with the
international obligation. (ibid.)
Principle of Objective Responsibility. – This principle
provides that, provided agency and causal connection are
established, there is a breach of duty by result alone.
Responsibility arises for acts committed by a state despite
the absence of fault or culpa. (Brownlie, Chapter 21)
This in effect gives rise to “strict liability.” All a claimant
needs to show is the fact of breach, fault or negligence
on the part of the state notwithstanding.
This is not to say, of course, that fault or negligence is
immaterial. They may be considered in determining
the extent of reparation that must be made.
CLASS NOTES
Responsibility in connection with the act of another state.
– A state may also be held responsible in relation to
internationally wrongful acts of other states in the following
instances:
 When a state aids or assists another state in the
commission of an internationally wrongful act by
the latter, if:
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o That state does so with knowledge of the
circumstances of the internationally
wrongful act; and
o The act would be internationally
wrongful if committed by that State.
(ILCDA, Art. 16)
 When a state directs and controls another state in
the commission of an internationally wrongful
act, if:
o That state does so with knowledge of
the circumstances of the internationally
wrongful act; and
o The act would be internationally
wrongful if committed by that S\state.
(ILCDA, Art. 17)
 When a state coerces another state to commit an
act, if:
o The act would, but for the coercion, be
an internationally wrongful act of the
coerced state; and
o The coercing state does so with
knowledge of the circumstances of the
act. (ILCDA, Art. 18)
Defenses; Circumstances Precluding Wrongfulness
A state may invoke the following circumstances in order to
preclude the wrongfulness of the act or omission imputed
against him:
 Party alleging the breach had actually consented
to the commission of a given act; (ILCDA. Art. 20)
 The act was taken as a lawful measure of self-
defense in conformity with the UN Charter;
(ILCDA, Art. 21)
 The act was taken as a countermeasure; (ILCDA,
Art. 22)
 It was impossible for the state to comply with the
obligation due to force majeure; (ILCDA, Art. 23)
 The author of the act was in a situation of distress,
and had no other reasonable way to save his life
and those of others entrusted to his care apart
from the allegedly wrongful act; (ILCDA, Art. 24)
 Necessity
o The act was the only means of the State
to safeguard an essential interest
against a grave and imminent peril; and
o The act does not seriously impair an
essential interest of the State/s towards
which the obligation exists, or of the
international community as a whole;
(ILCDA, Art. 25)
Legal Consequences of an Internationally Wrongful
Act
The state responsible for the internationally wrongful act
is under an obligation:
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a) To observe its continued duty to perform the
obligation breached; (ILCDA, Art. 29)
b) To cease the act, if it is continuing; and (ILCDA,
Art. 30)
c) To offer appropriate assurances and guarantees
of non-repetition, if circumstances so require.
(ibid.)
d) To make full reparation for the injury caused by
the act. (ILCDA, Art. 31)
Reparation. – The responsible state is under an obligation
to make full reparation for the injury caused by the
internationally wrongful act. (ILCDA, Art. 31)
The payment of reparation is the “corollary of the violation
of the obligations resulting from an engagement between
states.” (Factory at Chorzow, supra.)
Essential principle of reparation. – The Court in the Factory
at Chorzow case (supra.) laid down the essential principle in
reparations.
“Reparation must, so far as possible,
wipe out all the consequences of the
illegal act and re-establish the situation
which would, in all probability have
existed if the act had not been
committed.” (ibid.)
Forms of reparation. – Full reparation for the injury caused
by the internationally wrongful act shall take the form of the
following, singly or in combination:
1. Restitution
This is the responsibility of the responsible state
to re-establish the situation which existed before
the wrongful act was committed, provided and to
the extent that restitution:
 Is not materially impossible; and
 Does not involve a burden out of
proportion to the benefit deriving from
restitution instead of compensation.
(ILCDA, Art. 35)
It is the restoration to status quo ante. It may take
the form of material restoration, or the reversal
of some juridical act.
2. Compensation
Insofar as the damage is not made good by
restitution, the responsible state is under an
obligation to compensate for any financially
assessable damage, including loss of profits
insofar as it is established. (ILCDA, Art. 36)
It is the “…payment of a sum corresponding to the
value which restitution in kind would bear.”
(Factory at Chorzow, supra.)
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It excludes “moral damage” to a state, i.e. the
affront or injury caused by a violation of rights not
associated with actual damage to property or
persons (which is the subject matter of
“Satisfaction”, infra.).
3. Satisfaction
The responsible state is under a duty to give
satisfaction for the injury caused insofar as it
cannot be made good by restitution or
compensation. (ILCDA, Art. 37 [1])
It consists in the following:
 an acknowledgement of the breach;
 an expression of regret;
 a formal apology; or
 another appropriate modality.
It should not be out of proportion to the injury
and may not take a form humiliating to the
responsible state. (ILCDA, Art. 37 [2])
This is a remedy for those injuries which are not
financially assessable (hence not covered by
restitution or compensation). This includes
“moral damage” to a state, i.e. the affront or
injury caused by a violation of rights not
associated with actual damage to property or
persons. (ILCDA, Art. 37 [3])
Countermeasures
Countermeasures are those self-help remedies undertaken
by states affected by internationally wrongful acts. These
are not associated with armed conflict, and are not
inconsistent with other international obligations. They are
temporary measures justified as necessary and
proportionate responses to an internationally wrongful act
which terminated once the end is achieved.
Example: suspension of flights to and from the
responsible state, tightening of trade, etc.
Not a form of punishment. – They are not intended to be a
form of punishment for wrongful conduct; it is an
instrument for achieving with the obligations of the
responsible state under these draft articles.
Use with risk. – A state which resorts to countermeasures
based on its unilateral assessment of the situation does so
at its own risk and may incur responsibility for its own
wrongful conduct in the event of an incorrect assessment.
Must be commensurate to the injury. – Countermeasures
must be commensurate with the injury suffered, taking into
account the gravity of the internationally wrongful act and
the rights in question.
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Article 49 of the ILC Draft Articles lays down the following
guidelines with regard to the use of countermeasures. To
wit:
1. The taking of countermeasures must only be used
to induce the responsible state to comply with its
obligations to cease the act, to offer assurances of
non-repetition, and to provide reparation.
2. It must be limited to the non-performance for the
time being of the affected state’s international
obligations to the responsible state.
3. It must, as far as possible, be taken in such a way
as to permit the resumption of performance of
the obligations in question.
Use of countermeasures should not affect the following:
a) The obligation to refrain from the threat or use of
force as embodied in the Charter of the United
Nations;
b) Obligations for the protection of fundamental
human rights;
c) Obligations of a humanitarian character
prohibiting reprisals;
d) Other obligations under peremptory norms of
general international law. (ILCDA, Art. 50 [1])
A state taking countermeasures is not relieved from
fulfilling its obligations:
a) Under any dispute settlement procedure
applicable between it and the responsible State;
b) To respect the inviolability of diplomatic or
consular agents, premises, archives and
documents. (ILCDA, Art. 50 [2])
Termination. – Countermeasures shall be terminated as
soon as the responsible state has complied with its
obligations (i.e. cessation, reparation) in relation to the
internationally wrongful act. (ILCDA, Art. 53)
CORFU CHANNEL CASE
ICJ Reports 1949, p. 4 (1949), supra.
(supra. Refer to p. 15)
RAINBOW WARRIOR ARBITRATION
(Lifted from Karichi Notes, 2010)
French agents destroyed a Greenpeace, Int’l vessel, the
Rainbow Warrior, while in harbour in New Zealand. New
Zealand prosecuted 2 captured French agents of the
Directorate General of External Security.
Acts of organs of state. A communiqué from the Prime
Minister of France confirmed that agents acted under its
instructions, & promised reparation. Dispute over France’s
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demand for release & New Zealand’s claim for
compensation. The UN Secretary General's ruling required
France to pay US $7 million to New Zealand and to
undertake not to take certain defined measures injurious to
New Zealand trade with the European Communities. The
ruling also provided that Major Mafart and Captain Prieur
were to be released into French custody but were to spend
the next 3 years on an isolated French military base in the
Pacific.
CASE CONCERNING UNITED STATES
DIPLOMATIC AND CONSULAR STAFF IN
TEHRAN (UNITED STATES OF AMERICA v. IRAN)
ICJ Reports 1980, p. 3 (1980), infra
(infra. Refer to discussion in p. 116)
THE FACTORY AT CHORZOW (GERMANY v.
POLAND)
1928 PCIJ (ser. A) No. 17 (1928), supra.
(supra. Refer to p. 15)
How much is the damage: To wipe out all the
consequences of the illegal act
The court made a distinction between legal and
illegal taking
The problem in IL is that the only way that a taking can
be illegal is if there is no just, adequate and prompt
compensation. (Cielo Notes, 2013)
CLASS NOTES
LEGAL CONSEQUENCES OF THE
CONSTRUCTION OF A WALL IN THE
OCCUPIED PALESTINIAN TERRITORY
(ADVISORY OPINION)
ICJ Reports 2004, p. 176 (2004)
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Israel constructed a wall Occupied Palestinian Territory
Israel wanted to make it as a defense buffer against
Muslims in order to prevent rocket attacks into Israeli
territory. It was built in such a way that OPT will be annexed.
Thus, the UN Secretary-General communicated to the Court
the GA decision to submit a question for an advisory opinion.
The question was:
“What are the legal consequences arising from
the construction of the wall being built by Israel,
the occupying Power, in the Occupied Palestinian
Territory, including in and around East Jerusalem,
as described in the report of the Secretary-
General, considering the rules and principles of
international law, including the Fourth Geneva
Convention of 1949, and relevant Security Council
and General Assembly resolutions?”
The building of the wall is illegal and must be removed.
The building of wall is illegal for being a violation of
humanitarian law. Humanitarian Law is a law for the
protection of the civilian in times of armed conflict. The wall
limited the liberty of movement. Civilians during armed
conflict must never be displaced.
Basic human rights were also violated.
• Work, housing, children, health
• Liberty of movement is affected; they cannot
access their workplace, schools, hospitals
Legal Consequences
• Third party states must not recognize the building
of the wall;
• Israel must make reparation for damages, and
remove the wall, pursuant to the doctrines of
international responsibility.
CASE CONCERNING APPLICATION OF THE
CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA v. SERBIA AND
MONTENEGRO)
ICJ Reports 2007, p. 43 (2007)
Bosnia and Herzegovina accused Yugoslavia of
responsibility for the commission of genocide in Bosnia. In
its application, Bosnia asked the Court to grant, as
provisional measures, that Yugoslavia cease all acts of
genocide and cease providing support for any group
engaging in military or paramilitary activities against
Bosnia, and requested that the Court indicate that Bosnia
had the right to seek and receive assistance in defending
itself.
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PUBLIC INTERNATIONAL LAW
The acts of genocide committed in Srebrenica were not
perpetrated by “persons or entities” having the status of
organs of the Federal Republic of Yugoslavia (as Serbia was
known at that time) under its internal law, as then in force.
There is no showing that the Federal Republic of Yugoslavia
(FRY) army took part in the massacres, nor that the political
leaders of the FRY had a hand in preparing, planning or in
any way carrying out the massacres.
While it is true that there is much evidence of direct or
indirect participation by the official army of FRY, along with
the Bosnian Serb armed forces, in military operations in
Bosnia and Herzegovina in the years prior to the events in
Srebrenica, it was not shown that there was such any
participation in relation to the massacres committed at
Srebrenica. Furthermore, neither the Republika Srpska nor
the VRS were de jure organs of the FRY, since none of them
had the status of organ of that State under its internal law.
The acts were not committed by persons who, while not
organs of Serbia, did nevertheless act on the instructions
of, or under the direction or control of Serbia.
The Court, citing Nicaragua v. US, held that the applicable
rule is that the conduct of a person or group of persons shall
be considered an act of a State under international law if
the person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that
State carrying out the conduct. Under this test, it must be
shown that this “effective control” was exercised, or that
the State’s instructions were given, in respect of each
operation in which the alleged violations occurred, not
generally in respect of the overall actions taken by the
persons or groups of persons having committed the
violations.
Bosnia has not proved that the instructions were issued by
the federal authorities in Belgrade, or by any other organ of
the FRY, to commit the massacres. Although the decision to
kill the adult male population of the Muslim community in
Srebrenica was taken by some members of the VRS Main
Staff, it is without instructions from or effective control by
the FRY.
The Court therefore held that the acts of those who
committed genocide at Srebrenica cannot be attributed to
Serbia under the rules of international law of State
responsibility. Thus, the international responsibility of
Serbia is not engaged on this basis.
TRAIL SMELTER CASE
In 1896, a smelter was started under American auspices
near the locality known as Trail, B.C. In 1906, the
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Consolidated Mining and Smelting Company of Canada,
Limited, acquired the smelter plant at Trail. This facility
resulted in sulphur dioxide fumes and higher concentrations
being emitted into the air. About 300-350 tons of sulphur
were being emitted daily in 1930. From 1925, at least, to
1937, damage occurred in the State of Washington,
resulting from the sulphur dioxide emitted from the Trail
Smelter.
The Court held Canada responsible for the conduct of the
Trail Smelter and enjoined it to pay compensation to
United States. The court also provided for future
monitoring of the effects of the factory's activities on the
environment, to prevent possible future damages to the
United States environment.
Under the principles of international law, as well as of the
law of the United States, no State has the right to use or
permit the use of its territory in such a manner as to cause
injury by fumes in or to the territory of another or the
proper- ties or persons therein, when the case is of serious
consequence and the injury is established by clear and
convincing evidence.
Considering the circumstances of the case, the Tribunal
holds that Canada is responsible in international law for the
conduct of the Trail Smelter. Apart from the undertakings in
the Convention, it is, therefore, the duty of the Government
of Canada to see to it that this conduct should be in
conformity with the obligation of the Dominion under
international law as herein determined.
This is unique because the effect of pollution
transcends other states.
The case did not use any treaty or convention.
 The principle used is not environmental BUT not
to allow its territory to be used in such a manner
as to cause injury by fumes in or to the territory
of another
 This is a precedent for TRANSBOUNDARY
ENVIRONMENTAL HARM
 States must ensure that corporations existing in
their territory must comply with these laws
CLASS NOTES
UNION BRIDGE COMPANY CLAIM (UNITED
STATES v. GREAT BRITAIN)
(1924)
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 the
Cape Gov’t Railways at Port Elizabeth, an agent of the
British gov’t, without Union Bridge’s consent, and its
subsequent sale.
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PUBLIC INTERNATIONAL LAW
Act of state organ. Harrison purported to act upon
instructions given to him, and in doing so, he committed 2
mistakes in as much as it 1) was neutral property; and 2) was
intended for a road, an not a railway bridge. The
consignment of the material to Blomfontein was a wrongful
interference with neutral property, and it was within
Harrison’s duty, as railway storekeeper, to forward material
by rail, and he did so under instructions which fix liability on
the British gov’t. This liability is not affected by the fact that
this was done under a mistake, or that the British had no
intention to appropriate the material.
YOUMANS CLAIM (US v. MEXICO)
(1926)
(Lifted from Karichi Notes, 2010)
A mob killed 3 US nationals & Mexican police’s attempt to
quell the mob, under the Mayor’s instructions, led to the
open firing upon the house & more killings.
Act of state organ; failure to protect aliens in territory.
Mexico is liable for the acts of the soldiers whether 1)
outside the scope of their authority; or 2) done in a private
capacity. Clearly, it is not intended by the rule to say that no
wrongful act of an official acting in the discharge of duties
entrusted to him can impose responsibility on a gov’t under
IL because such wrongful act must be considered to be
“outside the scope of his competency.” If this were the
meaning intended by the rule, then no wrongful act
committed by an official could ever be considered as acts
for which the gov’t could be held liable. The soldiers’
participation in the murder cannot be considered as acts in
their private capacity when it is clear that at the time of the
commission of these acts, the neb were on duty under the
immediate supervision and in the presence of a
commanding officer. Duty: to exercise due diligence to
protect the person and property of aliens.
ZAFIRO CLAIM (GREAT BRITAIN v. US)
(1925)
(Lifted from Karichi Notes, 2010)
Claim WRT acts of a Chinese crew of the Zafiro, a private
ship commissioned by the US military, in looting houses in
Cavite during the Spanish-US War of 1898; defense: soldiers
on shore leave.
Act of state organ. US is liable for the whole damage as the
Chinese crew of Zafiro are shown to have participated to a
substantial extent, and the part chargeable to unknown
wrongdoers cannot be identified. But interest is not allowed
because a considerable, though unascertainable part of the
damage is not chargeable to the Chinese crew of the Zafiro.
There was no effective control of the Chinese
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crew at the time when the real damage took place. The
nature of the crew, the absence of civil or military control
ashore, and the situation of the neutral property, were
circumstances calling for diligence on the part of those in
charge of the Chinese crew to see to it that they were under
control when they went ashore in a body.
BOLIVAR RAILWAY COMPANY CLAIM (GREAT
BRITAIN v. VENEZUELA)
(1903)
(Lifted from Karichi Notes, 2010)
Claims were brought by Bolivar arising out of the revolution
in Venezuela that brought Castro to power & against Castro
himself, after his assumption to power.
Successful insurrectionists. Claims in respect of contractual
obligations incurred by both the old and new governments
were allowed, but claims incurred by an unsuccessful
revolution against Castro were not allowed. If the personal
responsibility of Castro were the question for decision, it
might be possible to hold him responsible for the claims
incurred by the 2nd revolution as growing out of the
revolution he had led. However, such is not the ground on
which successful revolutions are charged, through the gov’t,
with responsibility. Responsibility comes because it is the
same nation. Nations do not die when there is a change of
government. These are but expressions of a change of
national will. The nation is responsible for the debts
contracted by its titular government until the obligation is
discharged. The nation is responsible for the obligations of
a successful revolution from its beginning, because, it
represented ab initio a changing national will, crystallizing
in the finally successful result — success demonstrated that
from the beginning it was registering the national
NEER CLAIM (US v. MEXICO)
(1926)
(Lifted from Karichi Notes, 2010)
US claims damages for Mexico’s failure to exercise due
diligence in prosecuting the murderer of an American.
Standard of treatment of aliens in territory. The proprietary
of governmental acts should be put to the test of
international standards, and that the treatment of an alien,
in order to constitute an international delinquency, should
amount to an outrage, to bad faith, to wilful neglect of duty,
or to an insufficiency of governmental action so far short of
international standards that every reasonable and impartial
man would readily recognize its insufficiency. Whether the
insufficiency proceeds from deficient execution of an
intelligent law or from the fact that the laws of the country
do not empower the
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whether embodied in a single instrument or in two or more

authorities to measure up to international standards is related instruments and whatever its particular
immaterial. designation. (Vienna Convention on the Law of Treaties
[TC], Art. 2 [1a])

STARETT HOUSING CORPORATION v. IRAN While the definition excludes unwritten agreements, such
4 Iran-US Claims Report (1983)
exclusion does not mean that those have no legal force and
effect.
(Lifted from Karichi Notes, 2010, and subsequently edited)
Covered Not Covered
Starett Housing Corporation was contracted by the Iranian
Government for the construction of a 6000-unit apartment
 Agreements between  Agreements between
states states and other actors
complex. It contends that their property interests in the
housing Project have been unlawfully taken by the post- of
international
revolution Government of Iran through the appointment of
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
ratifying acts and conditions that prevented Starrett from
 Those governed by  Those governed by
international law the national law of
completing the Project.
one of the parties or
any other national
Expropriation Even Without Nationalization Law. The Court
law
noted that the Government of Iran did not issue any law or
system
decree according to which the Zomorod Project or Shah Goli
expressly was nationalized or expropriated. However, it is No Substantive Requirements of Form and Name
recognized in international law that measures taken by a The definition also covers simplified agreements which are
State can interfere with property rights to such an extent not in the form of formal treaties but have become of
that these rights are rendered so useless that they must be common use, such as: exchange of notes, agreed minutes,
deemed to have been expropriated, even though the State memoranda of understanding, among others. Its form will
does not purport to have expropriated them and the legal vary according to usage.
title to the property formally remains with the original
owner. Nomenclature is likewise insignificant. It can be called:
“treaty”, “covenant”, “pact”, etc.
Assumption of control over property by a government does
not automatically and immediately justify a conclusion that Conclusion and Entry into Force of Treaties
the property has been taken by the government, thus Representatives of a state. – A person may be said to be
requiring compensation under international law. In this representing a state for purposes of adopting or
case it cannot be disregarded that Starett has been authenticating the text of a treaty, or for expressing the
requested to resume the Project. It has been proved that at consent of the state to be bound by a treaty, given the
least by the end of January 1980 the Government of Iran had following:
interfered with the Claimants' property rights in the Project  He produces a “full powers” instrument; or
to an extent that rendered these rights so useless that they
must be deemed to have been taken. “Full powers.” – A document from a state
designating a person/s to represent it for:
There is no actual taking; instead, there was o negotiating, adopting or authenticating
CREEPING taking. It does not have to be a complete the text of a treaty;
taking as long as there is serious interference with o Expressing a state’s consent to be
the property. bound by a treaty; or
CLASS NOTES o For accomplishing any other act with
respect to a treaty. (TC, Art. 2 [1c])

E. Vienna Convention on the Law  If it appears from the intention of states

considered to consider him so and to dispense
of Treaties with the production of full powers. (TC, Art. 7 [1])
Treaty, Defined
However, there are three (3) categories of representatives
It is an international agreement concluded between states
who are considered in international law as representatives
in written form and governed by international law,
of the state without having to produce “full powers.” To wit:

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a) Heads of State, Heads of Government and
Ministers for Foreign Affairs, for the purpose of
performing all acts relating to the conclusion of a
treaty;
b) Heads of diplomatic missions, for the purpose of
adopting the text of a treaty between the
accrediting State and the State to which they are
accredited;
c) Representatives accredited by States to an
international conference or to an international
organization or one of its organs, for the purpose
of adopting the text of a treaty in that conference,
organization or organ. (TC, Art. 7 [2])
Acts relating to treaties performed a person who fails to
satisfy the “full powers” requirement or does not fall under
any of its exceptions are void and without legal effect. (TC,
Art. 8)
Adoption. – Adoption of the text of a treaty takes place
after the form and content of a treaty has been settled by
the negotiating states. This is preparatory to the
authentication of the text of a treaty and to its signature.
This is not an expression of an agreement to be bound.
Authentication. – This is the step wherein the definitive text
of a treaty is established as the correct and authentic one.
It enables states to know finally and definitively what is the
content of the treaty to which they might subscribe to. After
this step, the treaty is no longer susceptible to alteration.
Expression of consent to be bound. – The means by which
a state should express its consent to be bound by a treaty
depends on the treaty itself or on the agreement of the
parties thereto. The TC provides for the following means
through which this is accomplished: (TC, Art. 11)
1. Signature
A signature can ordinarily express such consent to
be bound. However, if the treaty contains a
stipulation requiring other means (e.g.
ratification) in order for states to be bound
thereto, such signatures will not have a binding
effect.
2. Exchange of instruments constituting a treaty
3. Ratification
Ratification shall be used by a state to express its
consent to be bound in the following instances:
a) the treaty provides for such consent to be
expressed by means of ratification;
b) it is otherwise established that the
negotiating States were agreed that
ratification should be required;
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c) the representative of the State has signed
the treaty subject to ratification; or
d) the intention of the State to sign the treaty
subject to ratification appears from the full
powers of its representative or was
expressed during the negotiation. (TC, Art.
14)
The consent to be bound by a state is established
upon:
a) exchanges of the instrument of ratification
between the parties; or
b) deposit of the instrument of ratification with
the depositary agreed upon. (TC, Art. 16)
4. Acceptance, Approval, Accession
This occurs when a state which did not sign a
treaty, already signed by other states, formally
accepts its provisions. (Brownlie, Chapter 26) It
gives flexibility to the process of becoming bound
to a treaty. (Magallona, 2005)
The consent to be bound by a state is established
upon:
c) exchanges of the instrument of acceptance,
approval or accession between the parties;
or
d) deposit of the instrument of acceptance,
approval or accession with the depositary
agreed upon. (TC, Art. 16)
Deposit with a depositary. – the parties to a treaty may
agree to appoint a depositary who shall be charged with,
among others, keeping custody of the original text,
preparing certified copies of the instrument, receiving
signatures, and informing the parties of acts, notifications
and communications relating to the treaty. (TC, Art. 77)
The depositary may be any of the following:
1. One or more states;
2. An international organization; or
3. The Chief Administrative Officer of such
organization.
In the case of expression of consent through ratification,
acceptance, approval or accession, the consent to be bound
is only established upon the deposit of the instrument of
ratification, acceptance, approval or accession with the
depositary so designated by the parties. (TC, Art. 16)
In most cases, it is the Secretary-General of the
United Nations who is designated as depositary.
CLASS NOTES
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PUBLIC INTERNATIONAL LAW
Entry into force. – It is the fixed date or periods reckoned
from certain events as agreed upon by the parties which
mark the beginning of the binding force of a treaty as law.
Example: TC, Art. 84 (1) – “The present
Convention shall enter into force on the thirtieth
day following the date of deposit of the thirty-
fifth instrument of ratification or accession.”
Provisional application. – A treaty or an agreement among
the parties may provide for the application of certain
provisions before a treaty’s entry into force. (TC, Art. 25 [1])
Reservation
It is “a unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of
the treaty in their application to that State.” (TC, Art. 2 [1d])
Right to formulate reservations; Exceptions. – A State may,
when signing, ratifying, accepting, approving or acceding to
a treaty, formulate a reservation. (TC, Art. 19)
It is a right that pertains to the sovereignty and
independence of a state in regulating its foreign relations. It
aids the development of international relations by enabling
states to ratify treaties which they would not have
otherwise ratified had they not been able to make
reservations thereto. (Magallona, 2005)
There are three (3) exceptions to this grant:
a) the reservation is prohibited by the treaty;
b) the treaty provides that only specified
reservations, which do not include the
reservation in question, may be made; or
c) in cases not failing under subparagraphs (a) and
(b), the reservation is incompatible with the
object and purpose of the treaty. (TC, Art. 19)
Consent/acceptance by other state parties. –
General Rule: Acceptance by other parties not required
for reservations expressly allowed by the
treaty. (TC, Art. 20)
Exception: Acceptance will be required in the
following cases:
1. When it appears from the limited
number of the negotiating States
and the object and purpose of a
treaty that the application of the
treaty in its entirety between all the
parties is an essential condition of
the consent of each one to be
bound by the treaty; (TC, Art. 20 [2])
2. When a treaty is a constituent
instrument of an international
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organization. (TC, Art. 20 [3])
(For the effect of reservations to multilateral treaties, see
Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, infra.)
No reservation of peremptory norms. – Reservations that
offend jus cogens norms would not be compatible with the
object and purpose of the covenant. Accordingly, provisions
therein which represent customary international law may
not be the subject of reservations. (Brownlie, Chapter 26)
Observance of Treaties
Pacta Sunt Servanda. – Literally, “pacts must be respected,”
it is the fundamental principle of the law of treaties. Every
treaty in force is binding upon the parties to it and must be
performed by them in good faith. (TC, Art. 26)
Cannot invoke internal law to evade treaty obligations. –
General Rule: A party may not invoke the provisions of
its internal law as justification for its
failure to perform a treaty. (TC, Art. 27)
Exceptions:  The violation concerns the state’s
competence to conclude treaties; or
 The violation concerned a rule of
internal law of fundamental
importance. (TC, Art. 46, infra.)
Retroactivity. –
General Rule: No retroactive application. It cannot bind
a party in relation to any act or fact which
took place or ceased to exist before the
fate of the entry into force.
(TC, Art. 28)
Exception: Unless a different intention appears from
the treaty. (ibid.)
Treaties and Third States
General Rule: Pacta tertiis nec nocent nec prosunt – A
treaty does not create either obligations
or rights for a third State without its
consent. (TC, Art. 34)
Exceptions:  Express acceptance. – Parties to the
treaty establish an obligation therein,
and the third state expressly accepts
the obligation in writing; (TC, Art. 35)
 Stipulations pour autrui. – Treaty gives
third states rights, and a third state
gives his assent thereto. (TC. Art. 35)
 Treaty as customary international law.
– A treaty may become binding on
non-parties if it becomes a part of
international custom. (Brownlie,
Chapter 26) (TC, Art. 38)
Interpretation of Treaties
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PUBLIC INTERNATIONAL LAW
TC, Art. 31.
General Rule of Interpretation
1. A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be
given to the terms of the treaty in their context
and in the light of its object and purpose.
2. The context for the purpose of the
interpretation of a treaty shall comprise, in
addition to the text, including its preamble and
annexes:
a. any agreement relating to the treaty
which was made between all the parties in
connection with the conclusion of the
treaty;
b. any instrument which was made by
one or more parties in connection
with the conclusion of the treaty and
accepted by the other parties as an
instrument related to the treaty.
3. There shall be taken into account, together with
the context:
a. any subsequent agreement between the
parties regarding the interpretation of the
treaty or the application of its provisions;
b. any subsequent practice in the application
of the treaty which establishes the
agreement of the parties regarding its
interpretation;
c. any relevant rules of international law
applicable in the relations between the
parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended.
TC, Art. 32.
Supplementary Means of Interpretation
Recourse may be had to supplementary means of
interpretation, including the preparatory work of
the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the
application of article 31, or to determine the
meaning when the interpretation according to
article 31:
a) leaves the meaning ambiguous or
obscure; or
b) leads to a result which is manifestly
absurd or unreasonable.
Invalidity, Termination and Suspension of Treaties
The validity and continuance in force of a treaty and of
consent to be bound is presumed. (TC, Art. 42) However, a
state may invoke certain grounds in for the invalidity,
termination and suspension of treaties.
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Grounds for invalidity. –
1. Violation of provisions of internal law regarding
competence to conclude treaties; (TC, Art. 46)
This ground concerns constitutional limitations
which may affect the validity of a state’s consent
to a treaty under international law
2. Representative’s lack of authority (TC, Art. 47)
A state representative acting under specific
restrictions, such restrictions being known to the
other state parties, who acts beyond them in
giving his consent to a treaty, renders the state’s
consent defective. Such an incident can be used
as a ground for the invalidation of that state’s
consent.
3. Error (TC, Art. 48)
This error must relate to a fact or situation which
was assumed by that State to exist at the time
when the treaty was concluded and formed an
essential basis of its consent to be bound by the
treaty. However, this ground cannot be invoked if
circumstances existed that should have put such
state on notice of a possible error.
4. Fraud (TC, Art. 49)
If a state has been induced to conclude a treaty by
the fraudulent conduct of another negotiating
state, the former may invoke the fraud as
invalidating its consent to be bound by the treaty.
5. Corruption of a state representative (TC, Art. 50)
If the expression of a State’s consent to be bound
by a treaty has been procured through the
corruption of its representative directly or
indirectly by another negotiating State, the State
may invoke such corruption as invalidating its
consent to be bound by the treaty.
6. Coercion of state representatives (TC, Art. 51)
The expression of a State’s consent to be bound
by a treaty which has been procured by the
coercion of its representative through acts or
threats directed against him shall be without any
legal effect.
7. Coercion of a state by threat or use of force (TC, Art.
52)
The expression of a State’s consent to be bound
by a treaty which has been procured by the
coercion of its representative through acts or
threats directed against him shall be without any
legal effect.
8. Conflict with jus cogens (TC, Art. 53)
A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general
international law.
Grounds for termination. –
1. State succession
Treaties may be affected when one state
succeeds whole or partly to the legal personality
and territory of another. This would be
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dependent on the form of succession and the
type of treaty concerned.
2. War and armed conflict
While hostile relations do not automatically
suspend or terminate treaties, it is possible for
war conditions to lead to termination of treaties
on grounds of impossibility or fundamental
change of circumstances.
3. Operation of treaty provisions (TC, Art. 54 [a])
The treaty may be terminated pursuant to
conductions for such specified therein.
4. Termination by agreement (TC, Art. 54 [b])
Termination of or withdrawal from a treaty may
take place at any time by consent of all parties.
5. Material breach (TC, Art. 60)
A material breach consists in:
 Repudiation of the treaty not sanction
by the present Convention;
 Violation of a provision essential to the
accomplishment of the object or
purpose of the treaty.
In bilateral agreements, a breach by one entitles
the other to invoke such breach as a ground for
termination.
In multilateral agreements, a breach by one may
lead to:
 Removal of the state in breach from the
treaty relation;
 Termination of the treaty;
 Suspension of the treaty only between
a specially affected state and the one in
breach;
6. Supervening impossibility of performance (TC, Art. 61)
A party may invoke the impossibility of
performing a treaty as a ground for terminating or
withdrawing from it if the impossibility results
from the permanent disappearance or
destruction of an object indispensable for the
execution of the treaty.
Example: submergence of an island, drying of a
river
7. Fundamental change of circumstances (TC, Art. 62)
Principle of clausula rebus sic stantibus – A
fundamental change of circumstances which has
occurred with regard to those existing at the
time of the conclusion of a treaty, and which was
not foreseen by the parties, may not be invoked
as a ground for terminating or withdrawing from
the treaty unless:
a) the existence of those circumstances
constituted an essential basis of the
consent of the parties to be bound by
the treaty; and
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b) the effect of the change is radically to
transform the extent of obligations still
to be performed under the treaty.
8. Emergence of a conflicting jus cogens norm (TC, Art.
64)
If a new peremptory norm of general
international law emerges, any existing treaty
which is in conflict with that norm becomes void
and terminates.
Voidable treaties. – Certain grounds of both invalidity and
termination must be invoked by a party and so such treaties
concerned are simply voidable. These are:
 Invalidity:
o Violation of provisions of internal law
regarding competence to conclude
treaties;
o Representative’s lack of authority;
o Error;
o Fraud;
o Corruption of Representative.
 Termination:
o Material breach;
o Impossibility;
o Fundamental change in
circumstances.(Brownlie, Chapter 26)
Void treaties. – The following grounds render a treaty void:
 Coercion of a state
 Conflict with jus cogens (ibid.)
In the case of the Philippines, the treaty-making
process consists of the following steps:
1. Negotiation
2. Signature
3. Ratification
Note that affixation of the Philippine representative’s
signature does not constitute consent to be bound.
This is due to the requirement in Art. VII, Sec. 21 for
the 2/3 concurrence of the Senate for a treaty to be
valid and effective.
Ratification in the Philippines comprises of the
following steps:
1. A treaty is signed by the Executive;
2. The treaty is concurred with by the Senate via a
2/3 vote;
3. The treaty is then deposited with the authority
designated by the treaty itself.
CLASS NOTES
DEFINITION OF TREATY
ABAYA v. EBDANE, JR.
G.R. No. 167919 (2007)
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DPWH awarded a contract for a road rehabilitation package
to China Road and Bridge Corporation (CRBC). The road
project is funded under a Loan Agreement which was
provided by an Exchange of Notes between Japan and the
Philippines.
Abaya: The contract with CRBC is void ab initio.
 Award of the project to CRBC violates the
Government Procurement Reform Act (RA
9184) which provides that the Approved
Budget Contract shall be the upper limit or
ceiling for the bid prices.
 Under the law, all bids or awards should not
exceed the ceilings or upper limits,
otherwise the contract is void.
 DPWH recommended the award to the
Chinese corporation whose bid was more
than 200M overpriced based on the ABC.
DPWH: RA 9184 is inapplicable.
 Executive Order No. 40 exempts from the
scope and application of RA 9184
government commitments with respect to
bidding and award of contracts financed
partly or wholly with funds from
international financing institutions as well
as from bilateral and other similar foreign
sources.
The contract is valid.
The Loan Agreement is in the nature of an executive
agreement because it is an integral part in the Exchange of
Notes between Japan and the Philippines. Under the UN
Treaty Collection, an exchange of notes is a record of a
routine agreement that has many similarities with the
private law contract. The agreement consists of the
exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the
other. Under the usual procedure, the accepting State
repeats the text of the offering State to record its assent.
The signatories of the letters may be government Ministers,
diplomats or departmental heads. The technique of
exchange of notes is frequently resorted to, either because
of its speedy procedure, or, sometimes, to avoid the process
of legislative approval.
Treaties, agreements, conventions, charters, protocols,
declarations, memoranda of understanding, modus vivendi
and exchange of notes all refer to "international instruments
binding at international law. Both the 1969 Vienna
Convention and the 1986 Vienna Convention do not
distinguish between the different designations of these
instruments. Instead, their rules apply as long as they meet
the common requirements.
Section 4 of RA 9184 states that:
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“Section 4. Scope and Application.- x x x Any
treaty or international or executive agreement
affecting the subject matter of this Act to which
the Philippine government is signatory shall be
observed.”
The Loan Agreement being in the nature of an executive
agreement falling under the purview of Section 4, it is
exempt from the application of RA 9184 bid-ceiling
requirements.
That an exchange of notes is in the nature of an
executive agreement is a mere obiter dictum.
CLASS NOTES
DEPARTMENT OF BUDGET AND MANAGEMENT
PROCUREMENT SERVICE v. KOLONWEL
TRADING
G.R. No. 175608 (2007)
DepEd requested the services of the DBM-PS to undertake a
procurement project which is to be jointly funded by the
World Bank and the Asian Development Bank through an
International Bank Reconstruction and Development (IBRD)
Loan Agreement. The award of the World Bank-ADB book
project for the Department of Education to Vibal, et. al is
now being contested despite earlier finding of conflict of
interest.
The trial court held that it lacked jurisdiction to try the case
because there was a failure to comply with the protest
mechanism under RA 9184, namely that the protest must
be: 1) in writing, in the form of a verified position paper 2)
submitted to the head of the procuring entity; and 3)
payment of a non-refundable protest fee. The trial court
also held that the World Bank Guidelines on Procurement
under IBRD Loans are not in any way superior over the local
laws.
Foreign loan agreements with international financial
institutions such as the IBRD Loan Agreement partake of an
executive or international agreement within the purview of
Section 4, RA 9184 as held in the Abaya case.
All interested bidders were notified by DepEd that the
procurement of the project was to be funded from the
proceeds of the RP-IBRD Loan Agreement which stipulates
that the goods shall be procured in accordance with the
World Bank guidelines.
Doctrine: Even if there is a conflict between the World
Bank procurement guidelines and municipal
procurement law (RA 9184), the WB guideline prevails.
Prof. Roque commented that the ruling was “stupid”
for the following reasons:
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 This contravenes the sovereignty of the state;
 The World Bank is not a state that could be a
party to a treaty; its guidelines were not even in
the form of a treaty;
 There is no conflict between PH and WB rules
regarding conflict of interest; In fact, the WB
guidelines are the basis of the procurement law
in the Philippines but there is a penal clause in
our law (that is the only difference)
In ruling that this is an executive agreement, Abaya
was used but the court cited a portion of Abaya which
does not exist.
Note that in Abaya, what was deemed an executive
agreement was the Exchange of Notes, not the loan
agreement itself.
CLASS NOTES
SUPLICO V. NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY
G.R. No. 178830 (2008)
The Philippine government through the DOTC entered into a
project with the Chinese government known as the ZTE
National Broadband Network Project or the ZTE-DOTC NBN
deal. Suplico sought to enjoin NEDA from pursuing, entering
into indebtedness, disbursing funds and implementing the
ZTE-DOTC Broadband Deal
Suplico’s petition was dismissed because the issue was
already moot. Prior to Suplico’s action, it was shown that in
the Notes of Meeting between Philippines and China, the
Philippine government conveyed its decision not to
continue with the project due to several constraints. The
same Notes also contained President Hu Jintao’s expression
of understanding of the Philippine Government decision.
Carpio, J., dissenting:
The NBN Project should be declared null and void for its
failure to comply with requirements set by law:
1. an appropriation law funding the contract;
2. certification of appropriation and fund availability
Also the Government Procurement Reform Act states that
all procurement of infrastructure, goods and services shall
be done through Competitive Bidding. ZTE’s argument that
there is no provision in the executive agreement between
China and the Philippines for the conduct of public bidding
will only be tenable if executive agreements can amend or
repeal a prior law. However, executive agreements cannot
amend or repeal a prior law.
An executive agreement has the force and effect of law.
But like implementing rules of executive agencies,
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executive agreements must comply with the laws they
implement. Only a treaty, upon ratification of the Senate,
acquires the status of municipal law.
That the Chinese government handpicked ZTE Corporation
to supply the goods and services does not make the ZTE
Supply Contract an executive agreement. ZTE Corporation is
not even a government agency but a business enterprise
performing purely commercial functions.
Also, an executive agreement is generally governed by
international law. However the ZTE Contract itself provides
that it shall be governed by Philippine law. Thus, the ZTE
contract is not an executive agreements but simply a
commercial contract, which must comply with the public
bidding mandated by the governing Philippine law.
CNMEG v. HONORABLE SANTA MARIA
G.R. No. 185572 (2012)
CNMEG and North Luzon Railways Corporation entered into
an agreement that the latter will conduct a feasibility study
and construct the Northrail Project. A complaint was filed
for the annulment of the contract and loan agreement on
the ground that it is unconstitutional and it also violated RA
9184. It is alleged that the contract and the loan agreement
is an executive agreement and therefore its validity cannot
be questioned before the local courts.
The Vienna Convention on the Law of Treaties defines a
treaty as an international agreement concluded between
States in written form and governed by international law,
whether embodied in a single instrument or in two or more
related instruments and whatever its particular
designation.
To be considered an executive agreement, the following
three requisites provided under the Vienna Convention
must concur:
a) the agreement must be between states;
b) it must be written; and
c) it must governed by international law.
This case lacks the first and third requisites.
The agreement is not between states. The Contract
Agreement was not concluded between the Philippines and
China, but between Northrail and CNMEG. CNMEG is neither
a government nor a government agency. Northrail and
CNMEG entered into the Contract Agreement as entities
with personalities distinct and separate from the Philippine
and Chinese governments, respectively. Neither can it be
said that CNMEG acted as agent of the Chinese government.
It is not governed by international law. Since the Contract
Agreement explicitly provides that Philippine law shall be
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applicable, the parties have effectively conceded that their
rights and obligations thereunder are not governed by
international law. It is merely an ordinary commercial
contract that can be questioned before the local courts.
Therefore it is not an executive agreement and the case can
be tried by Philippine (local courts).
The Court in effect introduced a fourth test to consider
an agreement an executive agreement – the purpose
of the contract. The contract must have been
undertaken for a purpose consistent with jus imperii
(i.e. that it must be for a sovereign purpose)
In the instant case, it was a mere supply agreement.
Hence, it must be governed by Philippine law.
CLASS NOTES
DEFINITION OF RATIFICATION
LIM v. EXECUTIVE SECRETARY
G.R. No. 151445 (2002)
As part of the Global War on Terror, US Armed Forces, in
conjunction with the Philippine military, held the Balikatan
exercises – a simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty (MDT) and the
Visiting Forces Agreement (VFA).
Petitioners argue that the VFA does not authorize US forces
to engage in combat operations in Philippine territory.
However, through the Balikatan exercises, US forces were
engaged in combat operations against the Abu Sayaff. As
such, they charged that the exercises were unconstitutional.
The Balikatan Exercises fall under the umbrella of
sanctioned or allowable activities in the context of the
VFA.
The holding of the Balikatan Exercises must be viewed in line
with the Mutual Defense Treaty and the Visiting Forces
Agreement. The VFA permits United States personnel to
engage, on an impermanent basis, in “activities,” the exact
meaning of which was left undefined. Since the terminology
used in the VFA is ambiguous, the Court referred to the
Vienna Convention on the Law of Treaties which contains
provisos governing interpretations of international
agreements. It clearly provides that the cardinal rule of
interpretation must involve an examination of the text,
which is presumed to verbalize the parties’ intentions. The
Convention also dictates what may be used as aids to
deduce the meaning of terms, which it refers to as the
context of the treaty, as well as other elements may be
taken into account alongside the aforesaid context.
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To settle the ambiguity, the Court made reference to the
Draft Terms of Reference (TOR) relating to the exercises,
which expressly prohibit US involvement in combat
operations without prejudice to self-defense. Hence, the
Balikatan cannot be said to have authorized US involvement
in combat operations.
The ambiguity of the meaning of the word “activities” was
deliberately made that way to give both parties a certain
leeway in negotiation. Thus, visiting US forces may sojourn
in Philippine territory for purposes other than military. As
conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nation’s
marine resources, sea search-and-rescue operations to
assist vessels in distress, disaster relief operations, civic
action projects such as the building of school houses,
medical and humanitarian missions, and the like.
On the question of whether American troops are actively
engaged in combat alongside PH troops under the guise of
an alleged training, the Court said that it cannot rule on this
as it involves a question of fact which is not a fit topic for
certiorari.
Balikatan exercises were entered into in relation to
the kidnapping of Burnham spouses in Dos Palmas.
The Balikatan, if found to be a rescue mission, is
unconstitutional. But this is a question of fact which
the Court refused to rule on.
CLASS NOTES
BAYAN v. ZAMORA
G.R. No. 138570 (2000)
BAYAN challenges the constitutionality of the Visiting Forces
Agreement (VFA).
The VFA is constitutional.
The constitutional provision which governs the VFA is
Section 25, Article XVIII of the 1987 Constitution:
“After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the
United States concerning Military Bases, foreign
military bases, troops, or facilities shall not be
allowed in the Philippines except 1) under a treaty
2) duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum
held for that purpose, and
3) recognized as a treaty by the other
Contracting State.”
The VFA is constitutional because it has met all the
requisites laid down by Section 25, Article XVIII.
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Whether US recognizes the VFA as a treaty is
inconsequential. Even if the US merely treats the VFA as an
executive agreement it is still binding because under
international law, an executive agreement is as binding as a
treaty. In international law, there is no difference between
treaties and executive agreements in their binding effect
upon states so long as negotiating functionaries have
remained within their powers.
Also, the US government, through Ambassador Hubbard,
stated that the US has fully committed to living up to the
terms of the VFA. As long as the US acknowledges the VFA
as a treaty and binds itself to further comply with its
obligations, there is compliance with the mandate of the
Constitution.
The Court in effect said that the 3rd requisite in Section
25 is satisfied so long as the US says the VFA is binding
on them, and that it is no longer our business to look
into US ratification practices.
Prof. Roque pointed out pertinent points raised by
Justice Puno in his dissent:
 The US Senate did not ratify the agreement.
Hence, in light of sovereign equality, why should
the Philippine Senate ratify it?
 Treaties enjoy the force of domestic law.
Because the US treated is an executive
agreement, we have a situation where the VFA
is binding as domestic law in the Philippines,
while in the US it is not;
 The VFA may involve bases because it is for an
indefinite period.
CLASS NOTES
BAYAN MUNA v. EXECUTIVE SECRETARY
G.R. No. 159618 (2011)
The Philippines signed the Rome Statute, a treaty which
establishes the International Criminal Court (ICC) with the
power to exercise its jurisdiction over persons for the most
serious crimes of international concern (considered grave
under international law, such as genocide, crimes against
humanity, war crimes, and crimes of aggression) and shall
be complementary to the national criminal jurisdictions.
However, no ratification was made.
Consequently, a non-surrender bilateral agreement was
executed between the RP and the US, which aims to protect
what it refers to and defines as “persons” of the RP and US
from frivolous and harassment suits that might be brought
against them in international tribunals. The Agreement
prevents the State-parties from surrendering a national of
the other to a third party or to the international tribunal
without the consent of the said other State.
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The Non-Surrender Agreement is sought to be nullified
because it contravenes the Rome Statute.
The Non-Surrender Agreement does not contravene the
Rome Statute because the Philippines is only a signatory
State and not yet a State-Party because it had not ratified
yet. Under the Vienna Convention on the Law of Treaties, a
signatory state is only obliged to refrain from acts which
would defeat the object and purpose of a treaty; whereas a
State-Party, on the other hand, is legally obliged to follow
all the provisions of a treaty in good faith. The Philippines is
only a signatory to the Rome Statute and not a State-Party
for lack of ratification by the Senate. Thus, it is only obliged
to refrain from acts which would defeat the object and
purpose of the Rome Statute, and it is not obliged to follow
any provision therein.
Regarding the non-surrender agreement between the
US and the Philippines:
 The bilateral agreement between US and PHL
defeats the purpose of the ICC or Rome Statute
which is to put an end to impunity
o SC: we are not a state party here
 In violation of jus cogens norm: that all who
commits international crimes should be
punished
o SC: It is an executive agreement so still
binding to us (even if not treaty)
 We are violating our obligation under Rome
statute
o SC: it is complementary to Rome Statute
because as a signatory our role is only to
refrain from acts which would defeat the
object and purpose of a treaty
o Why are we not violating impunity which
is customary norm:
(a) Complementary  because the
state can still prosecute
 Sir: It seems that the Supreme Court is saying
that signing a treaty without ratification has no
effect (?)  The Philippines is not bound by the
command of the International Criminal Court to
surrender to its jurisdiction
 Because what is involved here is an impunity
agreement so even if states had not ratified it,
because it is a customary norm.
CLASS NOTES
PIMENTEL v. EXECUTIVE SECRETARY
G.R. No. 158088 (2005)
Senator Pimentel et. al filed a mandamus to compel the
Executive Secretary and the DFA to transmit the signed copy
of the Rome Statute to the Senate for its concurrence in
accordance with Section 21, Article VII of the 1987
Constitution, which provides that “no treaty or
international agreement shall be valid and effective
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unless concurred in by at least two-thirds of all the
Members of the Senate.”
The Executive Secretary and the DFA do not have the
ministerial duty to transmit to the Senate the signed copy
of the Rome Statute even without the signature of the
President.
Pimentel et al erroneously interpreted Section 21 to mean
that the power to ratify treaties belongs to the Senate and
that the signing of the treaty at the United Nations
headquarters meant that it was already ratified. The power
to ratify belongs to the President, but this power is limited
by the Senate. Signing a treaty is merely a mark of
authentication and a symbol of good faith. It is a different
step from ratification. The Philippines is not bound by treaty
law or international law to ratify the treaty it has signed.
The signature on the Rome Statute does not signify final
consent. Ratification is what will bind the Philippines to the
Statute’s provisions. The Statute itself requires that the
signature of the representatives of the states be subject to
ratification, acceptance or approval of the signatory states.
There is no legal obligation to ratify a treaty, but a refusal to
ratify must be based on substantial grounds.
The treaty-making process involves the following
steps
 Negotiation: submissions of proposals and
counter-proposals
 Signature: authenticates the draft instrument
and symbolizes the good faith of the parties.
However, this does not indicate final consent of
the state
 Ratification: the formal act by which a state
confirms and accepts the provisions of a treaty
concluded by its representatives.
 Exchange of the instruments of ratification:
signifies the effectivity of the treaty.
CLASS NOTES
SALONGA et. al v. SMITH et. al
G.R. No. 176051 (2009)
Daniel Smith was a member of the US Armed Forces who
was charged for the rape of Suzette Nicolas. Pursuant to the
Visiting Forces Agreement, US was granted custody of Smith
pending the proceedings. RTC found Smith guilty. Pursuant
to the VFA, he shall serve his sentence in a facility that shall
be agreed upon by the Philippines and US authorities. The
Romulo-Kenney agreement was entered into which
provided that Smith will be detained at the 1st floor, Rowe
(JUSMAG) Building, US Embassy. The Philippine police & jail
authorities shall have access to the place of detention in
order to ensure the compliance of the US with the terms of
the VFA. Therefore, Smith was taken out of the Makati jail
by Philippine law enforcement
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agents and brought to the US Embassy. The VFA is being
assailed for being void and unconstitutional.
The VFA is constitutional.
In Bayan vs. Zamora, the SC upheld the constitutionality of
the VFA stating that the VFA was duly concurred in by the
Philippine senate and has been recognized as a treaty by the
US. Though the VFA was not submitted for advice and
consent of the US Senate, it is still a binding international
agreement or treaty recognized by the US because:
 Only policymaking agreements are submitted to the
US Senate;
 Those that carry out or further implement
policymaking agreements are submitted to Congress
under the provisions of Case-Zablocki Act. Submission
of this kind of agreement to the US Senate is not
necessary;
 The RP-US Military Defense Treaty is the policymaking
agreement, while the VFA is its implementing
agreement. The RP-US Military Defense Treaty has
been ratified & concurred by both Philippine & US
senates.
The VFA is different from Medellin vs. Texas because in that
case, the US Supreme Court held that treaties entered into
by the US are not automatically part of their domestic law
unless these treaties are self-executing or there is an
implementing legislation to make them enforceable.
Comparing the VFA with the Vienna Convention on Consular
Relations & the Avena decision of the International Court of
Justice (which is subject matter of the Medellin decision),
the VFA is a (1) self- executing agreement because the
parties intend its provisions to be enforceable and (2) it is
covered by implementing legislation which is the Case-
Zablocki Act. These two characteristics are absent in the
subject matter of the Medellin decision.
 Bayan Muna may be overturned due to change
of circumstances  in Salonga, this is an actual
case or controversy unlike in Zamora which
involves a declaratory relief
 Salonga: Mutual Defense Treaty is no longer in
effect because of the UN Charter (against the
use of force)
 SC:
 the first ruling is that there is a treaty: MDT
is a treaty to which VFA depends (even if
VFA is not treaty)
 even if there is no treaty, it is still binding
because of an implementing legislation
(Case-Zablocki act)  but it applies only to
executive agreements
 There is no distinction between treaties
and executive agreements
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 Dissent: Medellin v. Texas discussed that a
treaty does not automatically bind the US
 The treaty must be self-executory;
 There must be a domestic enabling
legislation.
CLASS NOTES
RESERVATIONS TO THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE
CRIME OF GENOCIDE
ICJ Reports1951, p 15 (1951)
The General Assembly of the United Nations requested the
International Court of Justice for an Advisory Opinion on the
following questions:
I. Can the reserving State be regarded as being a
party to the Convention while still maintaining its
reservation if the reservation is objected to by one
or more of the parties to the Convention but not
by others?
II. If the answer to Question I is in the affirmative,
what is the effect of the reservation as between
the reserving State and:
(a) The parties which object to the
reservation?
(b) Those which accept it?
III. What would be the legal effect as regards the
answer to Question I if an objection to a
reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but
which has not yet done so?
I. YES. A State which has made and maintained a
reservation which has been objected to by one or more
of the parties to the Convention but not by others, can be
regarded as being a party to the Convention if the
reservation is compatible with the object and purpose of
the Convention; otherwise, that State cannot be
regarded as being a party to the Convention.
II. (a) if a party to the Convention objects to a reservation
which it considers to be incompatible with the object and
purpose of the Convention, it can in fact consider that the
reserving State is not a party to the Convention;
(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 the reserving
State is a party to the Convention
No State can be bound by a reservation to which it has
not consented, therefore, it necessarily follows that each
State objecting to it will or will not, on the basis of its
individual appraisal within the limits of the criterion of
the object and purpose stated above, consider the
reserving State to be a party to the Convention. Such a
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decision will only affect the relationship between the
State making the reservation and the objecting State.
III. (a) an objection to a reservation made by a signatory
State which has not yet ratified the Convention can have
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
(b) an objection to a reservation made by a State which
is entitled to sign or accede but which has not yet done
so, is without legal effect.
1. In relation to WWII genocide; scenarios:
 If the reservation is allowed and ALL
accept –it will be binding
 If the object of the treaty is subject of the
convention – not allowed
 In case of reservation, the other states can
object – OPPOSABILITY
2. A jus cogens norm is a peremptory norm
3. A country is bound even without ratification:
 If it codifies CIL
 If the agreement is entered a third state
without that a third state gave its consent
to be bound thereto (not pour autrui where
benefits are involved and that the third
state accepts)
4. It is the same with contract law:
 Mutuality (only the parties are bound)
 Autonomy (like pacta sunt servanda)
5. A party cannot automatically opt out of the
effect of treaty  as in Nicaragua
6. In traveaux preparatoires  aid to
interpretation
7. When it can be declared void:
 Void due to jus cogens
 Fraud and inducement
 No full powers
 Error in fact and situation
 Coercion
 Corruption
Rebus sic stantibus  a legal doctrine allowing for a
treaty to become inapplicable and not binding on a
party because of fundamental changes in the
circumstances
CLASS NOTES
CASE CONCERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA
(NICARAGUA v. USA)
ICJ Reports 1986, p.14 (1986), supra.
The United States questions the jurisdiction of the ICJ since
Nicaragua had not yet ratified the instruments relating to
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the compulsory jurisdiction of the PCIJ (predecessor of the
ICJ).
There was a valid declaration on the part of Nicaragua of its
intent to ratify. The declaration had a certain potential
effect which could be maintained for many years. Having
been made unconditionally and being valid for an unlimited
period, it had retained its potential effect at the moment
when Nicaragua became a party to the Statute of the new
Court. The constant acquiescence of Nicaragua constitutes
a valid mode of manifestation of its intent to recognize the
compulsory jurisdiction of the Court.
AKBAYAN v. AQUINO
G.R. No. 170516 (2008)
AKBAYAN et. al requested for the full text of the Japan-
Philippines Economic Partnership Agreement (JPEPA)
including the offers made by both parties during the
negotiation process and all pertinent attachments and
annexes. Undersecretary Aquino did not grant this request.
Aquino said that they shall be provided with a copy once the
negotiations are completed and as soon as thorough legal
review of the proposed agreement has been conducted.
AKBAYAN et. al argues that the President cannot exclude the
Congress since whatever power and the authority the
President has now pertaining to negotiations is only
delegated by the Congress through the Constitution.
The treaty making power of is exclusive to the President,
subject only to the concurrence of at least 2/3 of all
Members of the Senate for the validity of the treaty. As
head of the State it is constitutionally vested in the office as
well as inherent that the President is the sole organ and
authority in the external affairs of the country.
VINUYA v. EXECUTIVE SECRETARY
G.R. No. 162230 (2010)
The “Malaya Lolas” is a group whose members were victims
of mass rape and sexual slavery in the Philippines during
World War II. The women sued in Japan for compensation
as a consequence of Japan’s internationally wrongful act of
sanctioning rapes during the war. The Japanese courts
dismissed their complaint on the ground that the women
had no personality to sue because only states could sue for
compensation on behalf of victims of war crimes.
They have approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in filing a
claim against the Japanese officials and military officers
who ordered the establishment of the "comfort women"
stations in the Philippines. Officials of the Executive
Department declined to assist the Malaya Lolas, and
maintained that the individual claims of the comfort
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women for compensation had already been fully satisfied by
Japan’s compliance with the Peace Treaty between the
Philippines and Japan.
The Supreme Court held in this case that the Executive
Department has the exclusive prerogative whether or not it
is going to espouse the claims of the Malaya Lolas. Since the
Executive Department has determined that taking up
comfort women’s cause would be inimical to our country’s
foreign policy interests, to overturn the Executive
Department’s determination would mean an assessment of
the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has been
constitutionally committed.
The conduct of the foreign relations of our government is
committed by the Constitution to the executive and
legislative – the political – departments of the government
and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or
decision.
Also, when negotiating peace accords and settling
international claims, governments have dealt with private
claims as their own, treating them as national assets, and as
counters, chips, in international bargaining. Settlement
agreements have lumped, or linked, claims deriving from
private debts with others that were intergovernmental in
origin, and concessions in regard to one category of claims
might be set off against concessions in the other, or against
larger political considerations unrelated to debts. Except as
an agreement might otherwise provide, international
settlements generally wipe out the underlying private
claims, thereby terminating any recourse under domestic
law.
F. Vienna Conventions on
Diplomatic Relations and
Consular Relations, and
Optional Protocols
VIENNA CONVENTION ON DIPLOMATIC
RELATIONS
Diplomatic Mission
Establishment. – Diplomatic missions are established by
mutual consent. (Vienna Convention on Diplomatic
Relations [DC], Art. 2)
Not same as establishing diplomatic relations. – A state
may establish diplomatic relations with another without
agreeing to establish a diplomatic mission therein. It may
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likewise withdraw a diplomatic mission without necessarily
severing diplomatic relations.
Functions. – The functions of a diplomatic mission are:
a) Representing the sending State in the receiving State;
b) Protecting in the receiving State the interests of the
sending State and of its nationals, within the limits
permitted by international law;
c) Negotiating with the Government of the receiving
State;
d) Ascertaining by all lawful means conditions and
developments in the receiving State, and reporting
thereon to the Government of the sending State;
e) Promoting friendly relations between the sending
State and the receiving State, and developing their
economic, cultural and scientific relations. (DC, Art. 3
[1])
Diplomatic missions may also perform consular functions,
(DC, Art. 3 [2]) which are regulated by the Vienna
Convention on Consular Relations. (infra.) Consent of a
receiving state to the establishment of diplomatic relations
also implies the establishment of consular relations. (CC,
Art. 2 [2])
The primary function of the mission is basically
“legitimate espionage” – that is, to collect
information on the receiving state.
CLASS NOTES
Duties of the diplomatic mission to the receiving state. –
These include:
1. Duty to respect the laws and regulations of the
receiving state;
2. Duty not to interfere in the internal affairs of
that state.
Members of the Mission
The following are the members of a diplomatic mission:
1. Head of mission
a. That of ambassadors or nuncios accredited
to Heads of State, and other heads of mission
of equivalent rank;
b. That of envoys, ministers and internuncios
accredited to Heads of State;
c. That of chargés d’affaires accredited to
Ministers for Foreign Affairs.
2. Staff of the mission
a. Diplomatic staff – staff having diplomatic
rank.
b. Administrative and technical staff –
employed in the administrative and
technical staff of the mission. (e.g.
secretaries, receptionists)
c. Service staff – employed in the domestic
service of the mission. (e.g. driver, maid,
security guards)
Diplomatic agents. – This term refers to the:
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 Head of mission; and
 Members of the diplomatic staff.
The distinction is essential because they are the only ones
covered by diplomatic immunities and privileges.
Commencement of diplomatic functions. – The process
with regard to heads of mission is as follows:
1. Initiation of agréation [ah-gre-ya-shawn] –
sending state inquires with receiving state
regarding the acceptability of the head of mission
proposed to be accredited.
2. Issuance of the agrément [ah-gre-mahnt] – if the
receiving state finds the proposed head
acceptable, the receiving state issues an
agrément (i.e. approval given by the receiving
state to the proposed head.)
The receiving state may refuse agrément, and is
not obliged to give a reason therefor.
Agrément may be withdrawn by the receiving
state only when the head of mission is not yet
present in its territory. Once that threshold is
crossed, it may:
 Ask the receiving state of his
withdrawal; or
 Declare him persona non grata.
3. Formal nomination and public announcement –
the head of state presents his diplomatic
credentials (i.e. authorization from the sending
state) to the head of state of the sending state in
a ceremony.
As to members of the staff of the mission, the sending State
may freely appoint them. (DC, Art. 7)
Cessation of diplomatic functions. – Functions of a
diplomatic agent come to end:
1. On notification by the sending state to the
receiving state that his function has ended. (DC,
Art. 43)
2. On notification by the receiving state to the
sending state that the agent has been declared
persona non grata and the receiving state refuses
to recognize him as a member of the mission.
(ibid.)
Persona non grata – Literally, “an unwelcome
person”; a receiving state may declare a
diplomatic agent or other staff member as such at
any time, without any obligation to explain its
decision. (DC, Art. 9)
 The sending state has the duty to either
(1) recall the person concerned or (2)
terminate his services in the mission.
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 Continues even if diplomatic ties are

 Failing at this, the receiving state may severed, and even in times of armed
refuse to recognize the person as a conflict (DC, Art. 45 [a])
member of the mission.
 Extends to archives and documents of
the mission, wherever they may be (DC,
3. Death of the diplomatic agent; and
Art. 24)
4. Severance of diplomatic relations, resulting in
 Extends to all official correspondence
permanent or temporary recall of the mission.
relating to the diplomatic mission (DC,
Art. 27 [2])
No practice of professional/commercial activity. – A
 Extends to the private residences of
diplomatic agent shall not practice for personal profit any
diplomatic agents (DC, Art. 30 [1])
professional or commercial activity in the receiving state.
(DC, Art. 42)
It was this duty to protect the premises of the
diplomatic mission that the Government of Iran failed
Members of the family not agents. - Members of the family
to discharge in the Case Concerning United States
of a diplomatic agent forming part of his household are not
Diplomatic and Consular Staff in Tehran (United States
diplomatic agents themselves. However, they are
Of America v. Iran), (infra.)
nonetheless entitled to the same personal rights of
CLASS NOTES
diplomatic agents. (DC, Art. 36 [1])

Diplomatic Immunities and Privileges Personal privileges, at a glance. – Diplomatic agents and
family members forming part of their household enjoy the
Basis. – There are three theories that form the basis of the
following rights:
grant of diplomatic immunities and privileges:
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 personifies 33)
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 of  Criminal: FULL IMMUNITY
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]) Administrative  Personal inviolability; (Art. 29)
3. The premises of the mission, their furnishings and and Technical  Immunity from jurisdiction; (Art.
other property thereon and the means of Staff: 31)
transport of the mission shall be immune from  Criminal: FULL IMMUNITY
search, requisition, attachment or execution. (DC,  Civil: FUNCTIONAL IMMUNITY
Art. 22 [3])  Exemption from social security
provisions; (Art. 33)

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Exemption from dues and taxes;
(Art. 34)
Exemption from personal services;
(Art. 35)
Service Staff:  Immunity in respect of acts
performed in the course of their
duties (FUNCTIONAL) (Art. 37 [3])
 Exemption from dues and taxes on
the emoluments they receive by
reason of their employment
 Exemption from social security
provisions; (Art. 33)
Personal inviolability of the diplomatic agent. – The
person of a diplomatic agent shall be inviolable. He shall not
be liable to any form of arrest or detention. The receiving
State shall treat him with due respect and shall take all
appropriate steps to prevent any attack on his person,
freedom or dignity. (DC, Art. 29)
This covers:
1. His private residence
2. Papers and correspondence;
3. Property, except for measures of execution due to
cases not covered by the agent’s immunity from
criminal and civil jurisdiction of the receiving
state. (infra.) (DC, Art. 30)
Immunity from jurisdiction. – A diplomatic agent enjoys
immunity from the following:
1. Criminal jurisdiction;
2. Civil and administrative jurisdiction;
 Exceptions:
i. A real action relating to private
immovable property situated in the
territory of the receiving State, unless he
holds it on behalf of the sending State for
the purposes of the mission;
ii. An action relating to succession in which
the diplomatic agent is involved as
executor, administrator, heir or legatee
as a private person and not on behalf of
the sending State;
iii. An action relating to any professional or
commercial activity exercised by the
diplomatic agent in the receiving State
outside his official functions. (DC, Art. 31
[1])
Q: If the secretary of the Ambassador were to be
charged administratively with sexual
harassment, would he be immune?
No. The secretary falls under “administrative and
technical staff,” and thus only has FUNCTIONAL civil
and administrative immunity.
Since the sexual harassment was not part of the
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discharge of his duties, he may be held liable for the
same.
Q: If a diplomatic mission rents a lot for its embassy,
but the lot is subject to a deed of restriction
which was breached by the former, can the
restriction be enforced against the mission?
Theoretically, you can sue the lessor (i.e. owner of the
lot) and receive judgment. However, it would not be
possible to enforce the judgment against the mission
since the premises of the embassy, leased or
otherwise, is inviolable and no legal writ may be
served therein.
This immunity from jurisdiction may be waived by the
sending state, by way of express waiver. But, this does
amount to waiver of immunity with respect to execution of
judgment, for which a separate waiver shall be necessary.
(DC, Art. 32)
A diplomatic agent cannot be obliged to give evidence as a
witness. (DC, Art. 31 [2])
Exemption from social security provisions. - Diplomatic
agent shall with respect to services rendered for the
sending State be exempt from social security provisions
which may be in force in the receiving State. (DC, Art. 33)
Exemption from all dues and taxes. – A diplomatic agent
shall be exempt from all dues and taxes, personal or real,
national, regional or municipal, except:
a) Indirect taxes of a kind which are normally
incorporated in the price of goods or services;
b) Dues and taxes on private immovable property
situated in the territory of the receiving State,
unless he holds it on behalf of the sending State
for the purposes of the mission;
c) Estate, succession or inheritance duties levied by
the receiving State;
d) Dues and taxes on private income having its
source in the receiving State and capital taxes on
investments made in commercial undertakings in
the receiving State;
e) Charges levied for specific services rendered;
f) Registration, court or record fees, mortgage dues
and stamp duty, with respect to immovable
property; (DC, Art. 34)
Exemption from personal services. – The receiving State
shall exempt diplomatic agents from all personal services,
from all public service of any kind whatsoever, and from
military obligations such as those connected with
requisitioning, military contributions and billeting. (DC, Art.
35)
Exemption from customs duties and related charges. - The
receiving State shall, in accordance with such laws and
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regulations as it may adopt, permit entry of and grant
exemption from all customs duties, taxes, and related
charges other than charges for storage, cartage and similar
services, on:
a) Articles for the official use of the mission;
b) Articles for the personal use of a diplomatic agent
or members of his family forming part of his
household, including articles intended for his
establishment. (DC, Art. 36 [1])
Some diplomatic officers abuse this privilege by
importing local goods duty-free, then selling them in
their areas. “Maliit sweldo nila e. Pero at least may
natitirhan ako for free when I’m abroad.” (Roque,
2013)
CLASS NOTES
Period of enjoyment. – The privileges and immunities shall
be enjoyed:
 FROM the moment he enters the territory of the
receiving State on proceeding to take up his post
or, if already in its territory, from the moment
when his appointment is notified to the Ministry
for Foreign Affairs;
 TO when he leaves the country after the basis for
his immunity ends.
o It subsists for a reasonable time even after
his functions end, up the time he leaves
the receiving state.
o But, with respect to acts performed by
such a person in the exercise of his
functions as a member of the mission,
immunity shall continue to subsist.
Immunity while in transit. - If a diplomatic agent passes
through or is in the territory of a third State in the process
of:
 proceeding to take up or to return to his post; or
 when returning to his own country,
Such third State shall accord him inviolability and such other
immunities as may be required to ensure his transit or
return.
This does not include vacations to third states.
CLASS NOTES
This right also applies with regard to:
 Any members of his family enjoying privileges or
immunities who are accompanying the diplomatic
agent, or travelling separately to join him or to
return to their country;
 Official correspondence and communications;
VIENNA CONVENTION ON CONSULAR
RELATIONS
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Consular Relations
Establishment. – Consular relations are established by
mutual consent. (Vienna Convention on Consular Relations
[CC], Art. 2 [1])
Arises with diplomatic relations. - Consent given to the
establishment of diplomatic relations between two States
implies, unless otherwise stated, consent to the
establishment of consular relations. (CC, Art. 2 [2])
This makes the following possible:
• Establishment of diplomatic relations without
consular relations, by express declaration; and
• Establishment of consular relations initially, ahead or
as a preliminary step to diplomatic relations.
Functions. – Consular functions consist in:
a) Protecting in the receiving State the interests of the
sending State and of its nationals;
b) Furthering the development of commercial, economic,
cultural and scientific relations between the sending
State and the receiving State and otherwise promoting
friendly relations between them;
c) Ascertaining by all lawful means conditions and
developments in the commercial, economic, cultural
and scientific life of the receiving State, reporting
thereon to the Government of the sending State;
d) Issuing passports and travel documents to nationals of
the sending State, and visas or appropriate documents
to persons wishing to travel to the sending State;
e) Helping and assisting nationals, both individuals and
bodies corporate, of the sending State;
f) Acting as notary and civil registrar, and performing
certain functions of an administrative nature;
g) Safeguarding, within the limits imposed by the laws
and regulations of the receiving State, the interests of
minors and other persons lacking full capacity who are
nationals of the sending State;
h) Representing or arranging appropriate representation
for nationals of the sending State before the tribunals
and other authorities of the receiving State;
i) Transmitting judicial and extrajudicial documents or
executing letters rogatory or commissions to take
evidence for the courts of the sending State;
j) Exercising rights of supervision and inspection in
respect of vessels having the nationality of the sending
State, and of aircraft registered in that State, and in
respect of their crews, and extending them assistance;
k) Performing any other functions entrusted to a consular
post. (CC, Art. 5, paraphrased)
Consular officers may also perform diplomatic functions or
acts granted these conditions:
• The sending state has no diplomatic mission in the
receiving state;
• The sending state is not represented by a diplomatic
mission of a third state therein;
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2. Transmission of consular commission – The

• The receiving state consents to the arrangement. (CC, consular commission is transmitted to the
Art. 17 [1]) receiving state for consideration. (CC, Art. 11 [2])
3. Issuance of exequatur – If the receiving state is in
Note, however, that the performance of diplomatic acts agreement, it shall issue an exequatur – an
does not alter the legal status of the consular officer and authorization from the receiving state by which
does not confer upon him diplomatic privileges and the head of a consular post is admitted to the
immunities. (ibid.) exercise of consular functions. (CC, Art. 12 [1])
Consular Post.
A receiving state may refuse to issue an
It is a consulate-general, consulate, vice-consulate, or
exequatur, and is under no obligation to explain
consular agency which exercises consular functions over a
itself. (CC, Art. 12 [2])
particular consular district. (CC, Art. 3)
The exequatur covers the members of the
Consular district. – It is a geographic area assigned or
consular staff working under the head’s orders
defined by the sending state for the exercise of consular
and responsibility. But the receiving state may
functions. (CC, 1 [1b])
nonetheless require an exequatur for consular
staff if it wishes. (CC, Art. 19 [1])
Establishment. – They may be established in the territory of
the receiving State only with that State’s consent. In
A head is not allowed to exercise consular
particular, the following are subject to the approval of the
functions without an exequatur. There are,
sending state:
however two exceptions to this rule:
• Seat of the consular post, and subsequent changes
• Admission on a provisional basis, pending
thereto;
delivery of the exequatur; (CC, Art. 13)
• Opening of a vice-consulate or consular agency in
• Appointment of an acting head of the
different consular seat;
consular post, in the event that the head can
• Opening of an office forming part of an existing
no longer discharge his functions or in case
consular post elsewhere than at the seat thereof. (CC,
of vacancy. (CC, Art. 15)
Art. 4)
Appointment of the consular staff. – The sending state may
Consular functions may also be undertaken by a diplomatic
freely appoint the members of the consular staff.
mission. (CC, Art. 3)
Cessation of consular functions. – Functions of a consular
Members of the Post
agent come to end:
The following are the members of a consular post:
1. On notification by the sending state to the
1. Heads of the post
receiving state that his function has ended. (CC,
a. Consuls=General
Art. 25)
b. Consuls
2. On notification by the receiving state to the
c. Vice-Consuls
sending state that the officer or staff member has
d. Consular agents (CC, Art. 9)
been declared persona non grata and the
2. Staff of the post
receiving state refuses to recognize him as a
a. Consular employees – any person employed
member of the mission. (CC, Art. 23)
in the administrative or technical service of a
consular post;
The sending state has the duty to either (1) recall
b. Members of the service staff – means any
the person concerned or (2) terminate his
person employed in the domestic service of
services in the post. (ibid.)
a consular post.
 Failing at this, the receiving state may
(1) withdraw the exequatur or (2) cease
Consular officers are of two categories,
to consider the person as a member of
• Career consular officers; and
the consular staff. (CC, Art. 23 [2])
• Honorary consular officers.
3. On withdrawal of the exequatur; (CC, Art. 25 [b])
Appointment of heads of consular posts. –
4. On notification by the receiving State to the
1. Issuance of a consular commission – He is
sending State that the receiving State has ceased
appointed by the sending state via the issuance of
to consider him as a member of the consular staff;
a consular commission – a document which
(CC, Art. 25 [c])
certifies to his official capacity and indicates his
5. Closure of the consulate;
full name, category or class, consular district, and
the seat of his consular post. (CC, Art. 11 [1])

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6. Death of the consular staff member; and
7. Severance of consular relations, resulting in
permanent or temporary recall of the post.
Members of the family enjoy privileges. - Members of the
family of a member of a consular post forming part of his
household shall enjoy the same privileges and immunities
accorded to him. (CC, Art. 53 [2])
Duties of the Receiving State
Freedom of movement. - The receiving State shall ensure
freedom of movement and travel in its territory to all
members of the consular post. (CC, Art. 34)
Freedom of information. – The receiving state shall permit
and protect freedom of information on the part of the
consular post for all official purposes. (CC, Art. 35 [1])
In communicating with the Government, the diplomatic
missions and other consular posts, wherever situated, of
the sending State, the consular post may employ all
appropriate means, including diplomatic or consular
couriers, diplomatic or consular bags and messages in code
or cipher. (ibid.)
The official correspondence of the consular post shall be
inviolable. (CC, Art. 35 [2])
Give information on death, guardianship, shipwrecks and
air crashes. - If the relevant information is available to the
receiving State, such authorities shall have the duty to
inform the post without delay of the following:
a) Death of a national of the sending State, to the
consular post in whose district the death
occurred;
b) Any case where the appointment of a guardian or
trustee appears to be in the interests of a minor or
other person lacking full capacity who is a national
of the sending State;
c) if a vessel, having the nationality of the sending
State, is wrecked or runs aground in the territorial
sea or internal waters of the receiving State, or if
an aircraft registered in the sending State suffers
an accident on the territory of the receiving State,
to the consular post nearest to the scene of the
occurrence. (CC, Art. 37)
Duties and rights with regard to nationals of the sending
state in the custody of the receiving state. - If the national
so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the
sending State if, within its consular district, a national of
that State is arrested or committed to prison or to custody
pending trial or is detained in any other manner.
Consular officers shall have the right to visit a national of
the sending State who is in prison, custody or detention, to
converse and correspond with him and to arrange for his
legal representation. They shall also have the right to visit
A2015
any national of the sending State who is in prison, custody
or detention in their district in pursuance of a judgment.
(CC, Art. 36)
It was this duty to inform the consular agents of
Mexico that the United States failed to discharge in the
Case Concerning Avena and other Mexican
Nationals (Mexico v. United States Of America), infra.
CLASS NOTES
Consular Immunities and Privileges
Inviolability of the consular premises. – The consular
premises are the buildings or parts of buildings and the land
ancillary thereto, irrespective of ownership, used
exclusively for the purposes of the consular post. (CC, Art. 1
[1j])
Consular premises are inviolable to the extent of the
following: (CC, Art. 33 [1])
1. The authorities of the receiving State shall not
enter that part of the consular premises which is
used exclusively for the purpose of the work of the
consular post
• Except with the consent of the head of
the consular post or of his designee or
of the head of the diplomatic mission of
the sending State.
• Such consent may be assumed in case of
fire or other disaster requiring prompt
protective action. (CC, Art. 33 [2])
2. The receiving State is under a special duty to take
all appropriate steps to protect the consular
premises against any intrusion or damage and to
prevent any disturbance of the peace of the
consular post or impairment of its dignity; (CC,
Art. 33 [3])
• This extends to the consular archives
and documents, wherever they may be.
(CC, Art. 33)
3. The consular premises, their furnishings, the
property of the consular post and its means of
transport shall be immune from any form of
requisition for purposes of national defense or
public utility.
• If expropriation is necessary for such
purposes, all possible steps shall be
taken to avoid impeding the
performance of consular functions, and
prompt, adequate and effective
compensation shall be paid to the
sending State. (CC, Art. 33[4])
Exemption from taxation of consular premises. - Consular
premises and the residence of the career head of consular
post of which the sending State or any person acting on its
behalf is the owner or lessee shall be exempt from all
national, regional or municipal dues and taxes whatsoever,
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PUBLIC INTERNATIONAL LAW
other than such as represent payment for specific services
rendered. (CC, Art. 32)
Personal inviolability of consular officers. – Consular
officers enjoy the following rights as to their personal
inviolability:
1. They are not liable to arrest or detention pending
trial;
• Except in case of grave crime and
pursuant to a decision of a competent
judicial authority; (CC, Art. 41 [1])
2. They shall not be committed to prison not be
subject to any other form of restriction to
personal freedom;
• Except in case of grave crime and
pursuant to a decision of a competent
judicial authority, or in the execution of
a final judicial decision. (CC, Art. 41 [2])
Immunity from jurisdiction; Functional immunity. –
Consular officers and employees are immune from the
jurisdiction of administrative and judicial authorities with
respect to acts performed in the exercise of consular
functions. (CC, Art. 43)
This exemption, however, does not apply in the following
civil cases:
• Arising out of a contract concluded by a consular officer
or a consular employee in which he did not contract
expressly or impliedly as an agent of the sending State;
or
• By a third party for damage arising from an accident in
the receiving State caused by a vehicle, vessel or
aircraft. (CC, Art.43)
This immunity from jurisdiction may be waived by the
sending state, by way of express waiver. (CC, Art. 45 [1])
Exemption from certain requirements of the receiving
state. – Members of the consular post are entitled to the
following exemptions:
• Registration of aliens and residence permits; (CC, Art.
46 [1])
• Work permits for employment of foreign labor, with
respect to services rendered by them for the sending
state (CC, Art. 47 [1])
• Social security provisions, with respect to services
rendered by them for the sending state (CC, Art. 48 [1])
• All dues and taxes, personal or real, national, regional
or municipal, except: (CC, Art. 49 [1])
o Indirect taxes normally incorporated in the price;
o Taxes or dues on private immovable property in
the territory of the receiving state;
o Estate succession or inheritance taxes and duties
on transfers;
A2015
o Taxes on private income, including capital gains,
and investment income, and sourced from the
receiving state;
o Charges on specific services rendered; and
o Registration, court or record fees, mortgage dues,
and stamp duties in private transactions.
• Customs duties and inspection;
• All personal services, public services of any kind, and
military obligations. (CC, Art. 52)
The above exemptions do not apply to the following:
• Consular employees and members of the service staff
who carry on private gainful occupation in the
receiving state; (CC, Art. 57 [2a])
• Members of the family of said employees and staff
members; (CC, Art.57 [2b])
• Members of the family of consular post members who
themselves carry on private gainful occupation in the
receiving state; (CC, Art. 57 [2c])
• Members of the family of honorary consular officers;
(CC, Art. 58 [3])
• Members of the family of consular employees in the
consular posts headed by honorary consular officers
(CC,Art. 58 [3] )
CASE CONCERNING UNITED STATES
DIPLOMATIC AND CONSULAR STAFF IN
TEHRAN (UNITED STATES OF AMERICA v. IRAN)
ICJ Reports 1980, p. 3 (1980)
The US instituted proceedings against Iran arising out of an
armed attack at its Embassy and Consulates in Iran and the
seizure and detention as hostages of its diplomatic and
consular staff and two more US citizens.
Iran breached its obligations under the Vienna
Conventions on Diplomatic Relations and Consular
Relations.
Under the Vienna Convention on Diplomatic Relations and
Consular Relations, Iran was obligated to take appropriate
steps to protect the US Embassy and Consulates. However,
it did nothing to prevent the attack, stop it before it reached
its completion or oblige the militants to withdraw from the
premises and release the hostages. This inaction is a clear
and serious violation of Iran’s obligations under the said
Conventions.
The obligations laid on States by the two Vienna
Conventions are of cardinal importance for the
maintenance of good relations between States in the
interdependent world of today. There is no more
fundamental prerequisite for the conduct of relations
between States than the inviolability of diplomatic envoys
and embassies, so that throughout history nations of all
creeds and cultures have observed reciprocal obligations
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,
irrespective of their differing constitutional and social
systems, to achieve mutual understanding and to resolve
their differences by peaceful means.
CASE CONCERNING AVENA AND OTHER
MEXICAN NATIONALS (MEXICO v. UNITED
STATES OF AMERICA)
ICJ Reports 2004, p. 12 (2004)
52 individuals were convicted and sentenced to death in the
United States. Mexico alleged that all 52 were Mexican
nationals at the time of arrest and that these individuals
were not informed of their rights under Art 36 of the Vienna
Convention on Consular Relations. Mexico instituted
proceedings against the United States for violations of the
Vienna Convention on Consular Relations. Mexico asks the
Court to declare that the United States, in arresting,
detaining, trying, convicting and sentencing the
54 Mexican nationals on death row, violated its
international legal obligations to Mexico, in its own right
and in the exercise of its right of consular protection of its
nationals, as provided by Articles 5 and 36 of the Vienna
Convention.
The United States violated its obligation under Art 36 of
the Vienna Convention.
The Court noted that the Vienna Convention did not provide
a definition of the phrase “without delay.” By looking at the
object and purpose of the Convention, the phrase “without
delay” means there is a duty upon the arresting authorities
to give to an arrested person 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 national.
The three elements under Art 36, paragraph 1(b) are:
a) right of individual concerned to be informed without
delay of his rights;
b) right of the consular post to be notified without
delay of the individual’s detention, if he so requests;
c) obligation of the receiving State to forward without
delay any communication addressed to the consular
post by the detained person.
Mexican nationals have never been informed of their rights
under Art 36, par 1(b). Thus, in each of these 47 cases, the
duty to inform “without delay” has been violated. Thus, the
United States violated its obligation under Art 36 par 1(b).
In view of these violations, the US is under an obligation to
permit review and reconsideration of the conviction and
sentence of these nationals’ cases by the US courts
ascertaining whether in each case the violation of Art 36
committed by the competent
A2015
authorities caused actual prejudice to the defendant in the
process of administration of criminal justice.
International Organizations
A. The UN Charter and the Use
of Force
UN Charter, Art. 2
The Organization and its Members, in pursuit of the
Purposes stated in Article 1, shall act in accordance
with the following Principles.
xxx
(3) All Members shall settle their international
disputes by peaceful means in such a
manner that international peace and
security, and justice, are not endangered.
(4) All Members shall refrain in their
international relations from the threat or
use of force against the territorial integrity
or political independence of any state, or
in any other manner inconsistent with the
Purposes of the
United Nations.
Membership
UN Charter, Art. 4
1. Membership in the United Nations is open to
all other peace-loving states which accept the
obligations contained in the present Charter
and, in the judgment of the Organization, are
able and willing to carry out these obligations.
2. The admission of any such state to
membership in the United Nations will be
effected by a decision of the General Assembly
upon the recommendation of the Security
Council.
Requisites for Admission as UN Member:
1) a State;
2) peace-loving;
3) must accept the obligations of the Charter;
4) must be able to carry out these obligations;
5) must be willing to do so.
This list is exclusive. No additional requirements may be
required by any state. (Competence of the General
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PUBLIC INTERNATIONAL LAW
Assembly for the Admission of a State to the United
Nations [Advisory Opinion], infra.)
The Security Council
UN Charter, Art. 24
Chapter V: The Security Council
Functions and Powers
1. In order to ensure prompt and effective action by
the United Nations, its Members confer on the
Security Council primary responsibility for the
maintenance of international peace and security,
and agree that in carrying out its duties under this
responsibility the Security Council acts on their
behalf.
xxxx
UN Charter, Art. 25
The Members of the United Nations agree to accept
and carry out the decisions of the Security Council
in accordance with the present Charter.
UN Charter, Art. 23
Composition
1. The Security Council shall consist of fifteen
Members of the United Nations. The Republic of
China, France, the Union of Soviet Socialist
Republics, the United Kingdom of Great Britain
and Northern Ireland, and the United States of
America shall be permanent members of the
Security Council. The General Assembly shall elect
ten other Members of the United Nations to be
non-permanent members of the Security Council,
due regard being specially paid, in the first
instance to the contribution of Members of the
United Nations to the maintenance of
international peace and security and to the other
purposes of the Organization, and also to
equitable geographical distribution.
UN Charter, Art. 27 (3)
Voting
xxx
3. Decisions of the Security Council on all other
matters shall be made by an affirmative vote of
nine members including the concurring votes of
the permanent members; provided that, in
decisions under Chapter VI, and under
paragraph 3 of Article 52, a party to a dispute
shall abstain from voting
HIGGINS, CHAPTER 10:
THE UNITED NATIONS
A2015
Article 1, UN Charter
• States the purposes of the United Nations
• Purposes:
o Maintenance of peace
o Settlement of disputes
o Promotion of social, economic, and
humanitarian welfare
• Full recognition that if disputes are not settled, the
peace may not be maintained
• Injustice and economic and social deprivation provide
the ground for instability and international terrorism
• UN as the key institution to avoid, contain, and
resolve disputes
• UN shall act on the basis of certain prescriptions in
the Charter:
1. Promotion and development of
international law
2. Role in the settlement of disputes
3. Intended to play a certain role in the
provision of collective security
The Formal Consideration of International Law
within the United Nations
• The study of legal issues within the UN: Different from
the immediate disputes before the General assembly
or Security Council
• Legal issues being considered by the Sixth committee
of the General Assembly
1. Strengthening the role of the organization
2. Status of national liberation movements
3. Status of the Protocols and the Geneva
Conventions relating to the protection of
victims of armed conflict
4. Consideration of how the security of
diplomatic and consular missions and
representatives could be better protected
5. General problem if peaceful settlement of
disputes
6. Question of an additional Protocol to the
Vienna Convention on Consular Relations
• Tasks of the Sixth Committee
1. Make a report on all the above mentioned
topics
2. Examine reports on legal matters that other
bodies present to the UN (ex: when
International Law Commission reports on its
work to the General Assembly)
Article 13, UN Charter
• The ILC was set up in fulfillment of the task of the
General Assembly to initiate studies and make
recommendations
• Subject matter of the studies and recommendations:
promoting international co-operation in the political
field and encouraging the progressive development of
international law and its codification
• For a long time already, ILC focused on the codification
of state responsibility. Related to this
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PUBLIC INTERNATIONAL LAW
topic is the ILC's significant progress when it comes to
state immunity and the law of non-navigational uses of
international watercourses.
o ILC was also able to pass a first draft of a code
of crimes against the peace and security of
mankind
• Topics for codification, with a necessary element of
development, must also be selected with care. For
example, after starting with the topic on Relations
between States and International Organization, the ILC
eventually decided not to pursue it.
• However, there is the recent tendency to go for topics
of manageable dimensions in order to conclude them
within a reasonable time-scale. Now that the
Commission has been enlarged, it is expected to be
able to cover more topics and be more productive.
Peaceful Settlement of Disputes
• Chapter VI: contains provisions on the Pacific
Settlement of Disputes
• Who may bring disputes before the Security Council
and General Assembly
o Secretary-General (art. 99) - on any matter which
in his opinion may threaten the maintenance of
international peace and security
o Members of the UN - whether they are parties to
the dispute or not (art. 35)
o States which are not members of the UN, but is a
party to the dispute - art. 35 (2)
• Non-members of the Security Council shall be allowed,
under various conditions, to participate in the debates
of the Security Council (arts. 31 & 32)
On the Fact-Finding Mission of the Security Council
• The Security Council can investigate any dispute and
enter into fact-finding missions
• The neutral verification of the facts has been proven to
be successful and is used as a means of containing and
defusing a situation
• There seems to be a resolution that the Secretary-
General may himself establish a fact-finding mission,
without the need for an authorization by the Security
Council
• Dispute settlement possibilities (art. 33)
1. Negotiation
2. Mediation
3. Conciliation
4. Arbitration
5. Judicial settlement
6. Resort to regional agencies
7. Sometimes, the Secretary-General himself
will put proposed solutions to the Security
Council
8. Usually, the Security Council devises the
proposals
• The Security Council sometimes suggests assistance in
the pursuit of the measures enumerated above
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On Third-Party Methods
• The Security Council may ask the Security-General to
provide conciliators and mediators
• Art. 33 does not insist that only the UN provides the
personnel who will participate in third-party methods
• Art. 33 focuses on pacific settlement
o Emphasizes the important role of regional
organizations in the maintenance of international
peace and security
o some are of the opinion that the creation of
dispute-settlement mechanisms by regional
organizations are expression of a regional desire
for local resolution of the dispute, to the exclusion
of any interference by the Security Council
o Sometimes it is also the UN that wishes to avoid
dealing with an issue. The Western Sahara and
the Chad vs. Libya case may be used as examples
to prove the point.
• On the relationship of regional agencies to the UN in
matters of peaceful settlement.
o No indicia to serve as guide when it is more
appropriate to go for regional, rather than the
global
• Disadvantage of regional bodies: the desire for
regional stability will often cause regional bodies to
seek to accommodate the more powerful of the two
protagonists, at the expense of the other
Peace and Collective Security: Intention and
Innovation
• The UN, by virtue of Chapter VII, has an important role
in the containment of disputes
• The provision of collective security by the Big Powers
o The keystone of international peace
o Big Powers: the Soviet Union, US, China, France,
and the UK
o Through the collective security, it would be
unnecessary for states to act in self-help and their
unilateral use of force would be restricted to self-
defense and such would be monitored by the
Security Council
o However, when the Cold War happened, the
intentions of the collective security came into
nothing
o Until now, no real machinery for collective
security through enforcement measures is in
place
• Veto power of the Big Powers
o The power to defeat a decision of the Security
Council by a single negative vote
o Mirrors the intention that the collective military
action cannot be used against the Big Powers
o Intention during the drafting of the Charter: veto
power to be used only if the passage of a
resolution could otherwise culminate in military
action against one of the Big Powers
o The practice in using the veto power: to stop the
possibility of any sanction directed against an
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ally and to stop a mere critical resolution directed
against an ally
• It was from these circumstances when the Security
Council became increasingly impotent to act, either
militarily and politically
• View of the US and the West on the UN's role in peace
keeping
o Because of the failure of the Security Council to
agree on the establishment of the UN Force,
peace cannot be enforced nor could the UN
members be compelled to offer troops
o As an alternative, they are of the view that if
peace could not be kept by enforcing it, it may be
done by policing a territory at the request of a
State and if the UN members volunteered for such
force
• View of the Soviet Union and its allies
o The provisions for the use of force by the UN are
very specific and if those procedures could not be
acted upon, alternatives not provided for in the
Charter were necessarily unlawful
o Since the Charter contemplates on the control
given to the intended Military Staff Committee
(by virtue of the veto power), a police force acting
outside the Charter would consequently then be
beyond the control by veto. In effect, the
Secretary-General would then be forced to
control in a day-to-day basis – something which is
contrary to the intentions of the founding
instrument
• There is also an idea that a UN police force could be
ordered not only by the Security Council, but even by
the General Assembly in cases where the veto power
make it impossible for the Security Council to act
o This view is acceptable to the West but not to the
Soviet Union
o It was against this background that the first UN
peace-keeping force, the UN Emergency Force
(UNEF) was established in 1956 to oversee the
cease-fire and to monitor the withdrawal of the
British, French, and Israeli forces from Egyptian
territory. The Soviet Union & its allies, as well as
France, refused to pay contributions for the costs
of the UNEF. From then on, the Soviet Union has
always refused to pay its share. The other States
took advantage of this situation and refused to
pay as well. From the outset, the financing of UN
peace-keeping was insecure and problematic.
Despite of these circumstances, the UN forces
were successfully established.
• Even if, because of the veto, the UN could not control
the use of force by the Big Powers, it seemed that it
had a constructive role to play in controlling force by
smaller states
• It was only in the 1980s when the Soviet Union started
to see the advantages of the UN. Its payment of its past
and present dues is a clear indication that there was a
legal obligation to pay. On the other hand,
A2015
the US became relatively unsupportive and made
reservations about withholding funds for the UN.
• Reforms in the UN
o Weighted voting system
 The weighted voting in the General
Assembly would represent an affront to an
underlying principle on which the UN is
based - the sovereign equality of all its
member States
 The European Community was of the opinion
that the weighted voting system is selective
adherence to the principle 'pacta sunt
servanda' and such erodes the very
foundation of the international order
 Gives the states that contribute a greater
share to the UN coffers greater influence in
the determination of the budget
o New agenda of achieving greater efficiency in the
use of resources
o A paralyzing contradiction in the UN affairs
o States proclaim their desire for expansion in the
role of the UN in areas such as the maintenance of
international peace and UN peace-keeping, and
on the other hand, the lack of provision of
finances to achieve the greater possibilities that
now exist is accepted as a reality of international
politics.
Political Bodies and Quasi-Judicial Activities
All the routine political activities of the UN must comply not
only with the specific requirements of the Charter, but with
general international law decisions of the political organs of
the UN, in the context of dispute resolution, often make
determinations of international law
Example: the Security Council has passed resolutions
claiming some independent government as having no
validity or as illegal regimes
It is desirable that the Security Council upholds and invokes
international law. However, some considerations shall be
made:
1. When determinations that purport to pronounce
authoritatively on international law are made
 Must be made with an understanding of the
issues
 Higgins is of the opinion that there is little
evidence in the debates that the Security
Council reached its determinations by
careful legal analysis
2. The extent to which quasi-judicial determination
by the Security Council is in fact appropriate
 Quasi-judicial determination occurs when
the Security Council does not merely point
the parties towards the various options open
to them for the political settlement of
disputes, but makes its own proposals for
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
decisions and are subsequently deemed as
international law
Conclusion
• The UN Charter is an extraordinary instrument
• Peace-keeping is not fully envisaged by the
Charter but is now an important reality
• There are various indications that the Security
Council is setting out on other new paths,
however, such paths significantly risk legal
incoherence
• Peace-keeping will not go away, together with
more orthodox international cooperation even
further variations of the intentions of Chapter VII
o the responsibilities of the UN will only be
realized if the states want to do so
HIGGINS, CHAPTER 14:
THE INDIVIDUAL USE OF FORCE IN
INTERNATIONAL LAW
 History
o Grotius insisted that the law of nations limited
the use of force to three justifiable causes:
defense, recovery of property, and punishment
o Covenant of the League of Nations sought
further to control and contain the use of force,
without prohibiting it
o After World War II, the UN Charter limited
permitted uses of force to self-defense or the
collective enforcement action
 The UN was given powers which were intended to
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
problem of military hostilities between states and
before the development of the atomic bomb. Its
provisions were not only predicated upon a
collective security system that was never a reality,
they did not envisage the new types of violence, and
the social conditions that were their origin and their
consequence.
The Relationship between Article 2(4) and Article
51
 Article 2(4): All members shall refrain in their
international relations from the threat or use of
force against the territorial integrity or political
independence of any state, or in any other manner
inconsistent with the purposes of the UN
 Article 51: indicates that there are certain uses of
force that will not contravene the prohibitions in
Article 2(4)
o On one hand, a state may act in self-defense
without first securing the permission of the
Security Council, while on the other hand, the
A2015
Security Council retains its responsibility to take
such action as it deems fit
 Article 2(4) explains what is prohibited, Article 51
what is permitted
 Issue: Can there be a use of force that is not against
the territorial integrity or political independence of a
state (not violative of Art 2) but is also not individual
or collective self-defense (permitted under Article
51)
o It is unlikely because most uses of force violate a
state’s territorial integrity
o Applicable case: Corfu Channel Case
 Self-help – use of force to obtain legal
rights improperly denied. It is unlawful
under the Charter.
 Reprisals
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
rather at delivering a message of deterrence
against the initial attack being repeated.
o Under customary international law, reprisals
were lawful if certain criteria were met
o Reprisals would necessarily involve a violation of
Article 2(4), however, and, not being self-
defense, are not brought within the permissive
use of force in Article 51.
o The texts of articles 2(4) and 51 clearly do not
allow reprisals; and the study of other
instruments and practices and judicial decisions
does not allow one to conclude that there has
been any de facto amendment of the Charter on
this point- notwithstanding the fact that, in the
absence of effective means of self-protection,
reprisals may be expected to continue.
 Article 51 allows self-defense only when an armed
attack has occurred
 Under customary international law, self-defense
must be tested in the criteria laid down in the
Caroline Case of 1842
o Caroline Case doctrine: that anticipatory self-
defense must be restricted to those cases where
the necessity is instant, overwhelming, and
leaving no choice of means, and no moment for
deliberation
o While the UN Charter have its own procedure for
dealing with international threats to peace, one
that may be contained or turned aside through
calling an emergency meeting of the Security
Council consequently does not pass the Caroline
Case doctrine
o The Caroline Case doctrine, according to Higgins,
provides the required balance between allowing
a state to be obliterated and encouraging abusive
claims of self-defense; also, it has a great
operational relevance
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imminent, if there was a failure or

 The nuclear age made it impossible that an inability on the part of the
ambiguous provision be interpreted in a way that territorial sovereignty to protect
requires a state passively to accept its fate before it them, and if the measures of
can defend itself protection were strictly confined
 Because of the decentralized legal order, abusive to the object of protecting them
claims may always be made by states claiming to act against injury
in anticipatory self-defense  A claim on humanitarian
intervention based on self-
What Constitutes „the State‟ for Purposes of Self-
defense could only be advanced in
Determination
respect of nationals, because it is
 By virtue of Article 2(4), the use of force is prohibited
predicated on the argument that
against a state’s dependent territories overseas, as
the state is being harmed through
much as against the metropolitan state itself
injury to its nationals, and can
 On use of force against one’s nationals abroad therefore respond in self- defense
o It may only be justified as self-defense if there  Given our decentralized legal order, claims may
has been an attack upon ‘the state’ either be made in good faith or abusively. Norms will
o Professor Bowett, invoking the General never be able to remove the possibility of abusive
Assembly’s 1970 Declaration of Principle on claims; they (norms) are only for the achievement of
Friendly Relations, suggested that use of force values for the common good.
against one’s nationals abroad may be justified on
 To determine the validity of claims, contextual
the ground that population is an essential
analysis by appropriate decision makers is always
ingredient of the state
required. Claims determined to be valid should not a
o Justification in customary international law: the
priori be allowed or disallowed because they may be
right to humanitarian intervention on behalf of
unjustly invoked.
threatened citizens abroad
What Constitutes an Armed Attack?
Humanitarian Intervention
 Article 51 does not provide for any self-defense
 Customary international law tolerates a state
against a threat of force, although the threat is a
military’s intervention in another territory to rescue
violation of Article 2(4)
citizens under threat. However, when it come to the
 Self-defense is not permitted for other prohibited
question whether the same is allowed by the Charter,
acts; it is only permitted in an armed attack. This
an examination on the legal and policy issues shall be
leads to a couple of questions:
made.
o Whether any non-military coercion can be
 Note that Article 2(4) declares as unlawful any use of
deemed to trigger the right to self-defense
force, even minor military incursions. However, the
 Answer: Nothing in Article 2(4) deals with
following must be taken into consideration:
economic or diplomatic duress. The Charter
o What Article 2(4) prohibits is the use of force
implicitly accepts that it cannot regulate
against the territorial integrity or political
political influence and economic pressure,
independence of a state, or in any other manner
however, it also gives no suggestion on
inconsistent with the purposes of the UN
whether or not such economic pressure may
 It is only upon proof that humanitarian
give rise to any right of military response
intervention does not violate the
o Whether all uses of force are in fact armed attacks
prohibition against the use of force
 Applicable case: Nicaragua vs. US
against a state’s territorial integrity,
 Law-making resolutions of the UN have consistently
then one can declare that no other
opposed indirect military hostile uses of force
prohibition in Article 2(4) is being
o Examples: General Assembly Declaration of 1965
violated
on the Inadmissibility of Intervention; Friendly
 If, on the other hand, the question is
Relations Declaration
viewed in the light of Article 52, the issue
o Internal self-determination became the
translates into something simpler: WON
continuum of wars of national liberation, in the
a state can claim that military action to
sense that each strongly depended on outside
rescue one’s citizens is an exercise of
training, finance, and arming.
self-defense
o Different countries engaged in various indirect
 Judge Waldock says that a state
military activities, regardless of the general
could use force to rescue nationals
as an aspect of self- defense if the
threat of injury was

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prohibitions, and while also denouncing the
legality of the action of the other in lending such
assistance
 An armed attack could take place directly, through
the use of one’s own forces, or indirectly, through
armed bands or irregulars
o Key: scale of the activity
 If it is not very substantial, it may still be an
unlawful use of force, but it will not be an
armed attack- and hence no self-defense
may be used against it
o Higgins observes two points:
 The Court was purporting to deal with
customary international law rather than the
Charter
 The Court in terms avoided pronouncing
upon the implications of all this for the
question of whether there exists a right of
anticipatory self-defense
The Doctrinal Debates
 Issue: whether the failure of the international system,
coupled with fundamentally changed circumstances
since the time when the relevant texts were agreed,
makes preferable unilateral action for the common
good even if it is at variance with the norms
articulated in the Charter and elsewhere
o Answered in the affirmative by Professor Reisman
o Professor Reisman: norms are instruments
devised by human beings to precipitate desired
social consequences. One should not seek a point-
for-point conformity to a rule without constant
regard for the policy for principle that animated
its prescription, with appropriate regard for the
factual constellation in the minds of the drafters
o Higgins: there is a distinction between non-
compliance and interpretation infra legem to
achieve certain outcomes
 For Higgins, the application of Article 2(4) and Article
51 has been very unsatisfactory. However, he is not
convinced that they have no useful purpose to
perform or that unilateral outcome-directed action
without reference to common norms is not
dangerous.
o The use of indirect force is prohibited by the
relevant legal instruments, and that the common
good is best served by terming the indirect use of
force unlawful, regardless of the objectives in a
particular case
HIGGINS, CHAPTER 15:
THE USE OF FORCE BY THE UNITED NATIONS
A2015
UN Action for, or Authorization of, enforcement
Measures for Humanitarian Purposes
 Article 2(7) provides that the UN may not intervene in
matters which are essentially within the domestic
jurisdiction of any state. Also, Article 2(7) itself says
that its provisions do not prejudice the application of
enforcement measures under Chapter VII
 Articles 41 and 42 are for the maintenance or
restoring of international peace and security. It is clear
that measures under these Articles depend upon
there having been a finding under Article 29 of the
existence of any threat to the peace, breach of the
peace, or act of aggression. The only way in which
economic or military sanctions for human- rights
purposes could lawfully be mounted under the
Charter is by the legal fiction that human-rights
violations are causing a threat to international peace.
 Higgins is of the opinion that we may say that there
may be an increasing tendency for the Security
Council to characterize humanitarian concerns as
threats to international peace- and thus bring them
within the potential reach of Chapter VII of the
Charter. However, it is too early to say that a norm
about it has clearly emerged.
 It is clear that opening the door to military
intervention for humanitarian purposes around the
world will place an unbearable burden on the UN
enforcement mechanisms, whether through direct
UN action or through UN-authorized action.
The Use of Force to Support UN Resolutions
 Issue: whether the Security Council can call for the
use of force to compel compliance with its own
resolutions
 Applicable provision: Article 41
 Implication: force could be authorized to implement
economic sanctions without that use of force being
viewed as military sanctions under Article 42
o Just as a minimal use of force by UN peace-
keeping operations may be authorized by
reference to article 41 of the Charter, so limited
force may apparently be authorized by reference
to Article 41 – even though neither article
envisages that possibility
 There is no entitlement in the hands of individual
members of the UN to enforce prior Security Council
resolutions by the use of force
The Relationship of Military Sanctions under Article
42 of the Charter to Self-Defense under Article 51
 2 circumstances in which the use of force is envisaged
in Chapter VII
o Use of force through the Security Council under
Article 42
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
measures provided in article 41 are proven to be
inadequate. Article 42 actions would require a further
resolution of the Security Council, and, as such, would
be subject to the veto of any Permanent Member
 As regards Article 51, action in self-defense could be
taken without prior authorization of the Security
Council, thus avoiding a possible veto.
 Action under Article 41 would bind the UN
membership as a whole but it would be subject to the
veto
 Action 51 provides that self-defense may be relied on
until the Security Council has taken measures
necessary to maintain international peace and
security.
 We could say that Article 51 does not speak of
measures effective to restore international peace,
but of measures necessary to do so. In this light,
economic sanctions may find justification as they are
clearly necessary.
o However, the intention was that, members
should be free to act in collective self-defense
until the Security Council was in a position to take
over the task and secure the common objective.
Nonetheless, such idea is faced with difficulties:
 It may be argued that if economic sanctions
have been ordered, but not yet military
sanctions, and an armed attack has not yet
been repelled, that not all action necessary
has yet been taken and Article 51 remains
available.
 States may act both as Security Council
members and as members who respond to a
request for collective self-defense.
The Relationship between Military Sanctions under
Article 42 and the Means Envisaged for Providing
them under Article 43
 Under Chapter VII, the Security Council, once it has
determined the existence of a threat to the peace,
breach of the peace, or act of aggression, will
recommend or decide upon enforcement measures
to maintain or restore international peace and
security.
 Article 42 allows for military action by air, sea, or land
forces
 Article 43 then provides that all UN members
undertake to make available to the Security Council,
on its call and in accordance with a special agreement
or agreements, armed forces, assistance, and
facilities.
 Issue: the authority of the Security Council to act
under Article 42 given the failure of the Security
Council to be able to proceed as envisaged under the
said Article
A2015
 Left open: whether enforcement action under Article
42 could, as a matter of Charter law, occur in the
absence of agreements under Article 43
o Applicable case: ICJ advisory opinion in 1962 to
address certain legal problems concerning the
financing of UN peace-keeping
o On the question on whether peace-keeping action
was permissible in the absence of Article
43 agreements, the Court answered in the
affirmative. It cannot be said that the Charter has
left the Security Council impotent in the face of an
emergency situation when agreements under
Article 43 have not been concluded. It must lie
within the power of the Security Council to police
a situation even though it does not resort to
enforcement action against a State.
 Higgins is of the opinion that it would remain a matter
of political judgment for the Security Council to decide
if it was preferable to provide for peace- keeping or
for military enforcement under Article 42.
 In the absence of Article 42 agreements, no UN
member can be compelled to provide military forces
or assistance; but action under Article 42, by those
who are willing to participate, can properly be
authorized by the UN and carried out under UN
command. It is also possible for such action to be
authorized by the Security Council as an enforcement
action under Article 42, even if it was to be carried out
by UN members not under a unified UN command.
“THE SECURITY COUNCIL UNDER CHAPTER VII
OF THE UN CHARTER: PROBLEMS UNDER THE
RULE OF LAW”
by H. Harry Roque
Legal Framework
 On the establishment of the existence of threat or any
act of aggression, the Security Council may act as
follows:
o The Council may call upon the parties to comply
with provisional measures or remedies, as it
deems necessary or desirable (Article 40)
o The Council may decide which measures, not
involving the use of armed forces, are to be
employed. Economic sanctions, including non-
military sanctions, may be called upon the
members of the UN (Article 41)
o In the event that the provisions in Article 41 prove
to be inadequate, the Council may take the
military action necessary to maintain or restore
international peace. The air, sea or land forces of
the members of the UN shall conduct such military
action (Article 42)
o To implement Article 42, Article 43 provides that
all members of the UN shall make available to the
Security Council, in accordance with a special
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agreement/s, armed forces, assistance and
facilities necessary for the purpose of maintaining
international peace and security.
 Article 47
o the maintenance of international peace shall be
under the command of the Military Staff
Committee consisting of the Chief of Staff of the
permanent members of the Security Council or
their representatives
o the Committee will be responsible for the
strategic direction of any armed forces placed at
the disposal of the Security Council
 Article 27 (3)
o Provides for the veto power of the permanent
member states of the Council
o The exercise of collective security is made subject
to the condition that such measure must bear the
unanimous vote of all the permanent members of
the Council
Implementation
 Chapter VII was implemented only once when the
Security Council authorized the deployment of a UN
military force in Korea
 Higgins: international law is not just a body of rules
that governs relations between states, but a dynamic
process of identifying normative conduct by
competent authorities when power and authority
coincide
 Formation by the UN General Assembly of peace-
keeping forces, while analogous to the provisions of
Chapter 7, were in fact different and distinct from it
 The United Nations Emergency Force (UNEF)
o Example of peacekeeping forces that were
created in lieu of Chapter 7
o Its presence was expressly requested by both the
governments of Egypt and United Arab Republic.
If there was not such request, the presence of the
UNEF would constitute a breach of the territorial
sovereignty of at least two member nations
o Had the same purpose as the collective security
measures provided for under Chapter VII
o Difference from Chapter VII
 It was not authorized by the Security Council
but by the General Assembly
 It was not participated in by the forces or
members of the UN whose composition
needed to be provided for by a special
agreement
 It was not under the Council or the Military
Staff Committee. Instead, it was composed
of volunteers from the member nations of
the UN
 Advisory Opinion regarding the expenses incurred as a
result of the UN involvement in Congo and the UNEF
in the Suez Canal
A2015
o The ICJ upheld the assessments on the ground
that the Security Council had only primary and not
exclusive responsibility for the maintenance of
international peace and security
o Did not give actual ruling that the volunteer forces
were constitutional under the UN Charter
o Emphasized that since the General Assembly is
authorized under Article 14 to recommend
measures for the peaceful adjustment of any
situation that it deems likely to impair the general
welfare, it is also authorized to organize
peacekeeping operations at the request and
consent of the States concerned. Article 35 may be
the applicable provision in such cases.
o The only form of action within the jurisdiction of
the Security Council were those which were
indicated in the title of Chapter 7 itself – actions
with respect to threats to peace, breaches of
peace and acts of aggression
 Peacekeeping forces is also distinct from Chapter 7 in
terms of who shall comprise the peace-keeping force
and of whose command the force shall be under
 The creation of peacekeeping forces is justified on the
ground that it was directed towards a charter-
objective which is the attainment of peace
Sanctions
 Issue: some Resolutions passed by the Security Council
seem to violate the municipal law concept of undue
delegation of power
 Nicaragua vs. US case
o Qualified that collective self-defense may not be
invoked except if:
 There exists a valid exercise of the right to
self-defense; and
 If there is request from the alleged victim
state
o In addition to the requirement that there by a
request made by the alleged victim state, the pre-
requisites for an act of self-defense must first be
shown to exist
 Conventional public international law requires an
actual armed attack as a pre-requisite for self-defense
Humanitarian Intervention
 Issue: how does one determine if a prevailing situation
warrants intervention on grounds of humanitarian
reasons
 The Security Council justified the use of enforcement
measures under Chapter 7 as valid exercises of
humanitarian intervention
o Example: in the recent cases of Rhodesia,
Somalia and Iraq
o The use of gross human misery, be it man-made
or otherwise, are threats to international peace
o Legal basis: interventions of these nature so
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
to life is paramount, is an issue not confined to
the domestic jurisdiction of any state
o Applicable provision: Article 2 (7)
 Issue: in cases where the unilateral use of force
without the authority of the Security Council
o Applicable case: the NATO bombing of Kosovo
which were justified on the basis that NATO
countries could not stand idly as thousands of
human beings were being killed
o Brownlie & Henkin argue against the lawfulness
of humanitarian intervention because the past
has widely abused this right
o Those who argue in favor of humanitarian
intervention do so on the basis that norms are
instruments devised by human beings to
precipitate desired social consequences
 Reisman: One should not seek a point for
point conformity to a rule without constant
regard for the policy or principle that
animated its presumption
o Higgins
 in a decentralized legal order, facts must be
looked at legal views applied in context
 Each claim of a valid exercise of
humanitarian intervention, be it made in
good faith, or otherwise, should require
individual and contextual analysis
 International law is capable of deciding on
the facts at disposal, which interventions
were bona fide, and which, were not for
reasons of humanitarian necessity
o Murase
 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
from taking place
 We should try to make every effort for
accommodating the ethical consideration
for necessity and legitimacy, as well as the
normative elements reflecting the actual
power relations, into the practice of
international law
 Despite the prohibition on the use of force in the
conduct of international relations under Article 2(4),
countries continue to unilaterally use force either for
alleged humanitarian purposes, or in order to protect
their nationals
o Relation to current events: 2 Americans
kidnapped by the Abu Sayaff
o Effect: RP government allowed US forces in the
territory
 Two theoretical violations of such presence
 Of territorial sovereignty
 Of the proscription against the use of
force under Article 2(4)
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 But, one cannot expect US to do nothing
while its citizens are being held captive for
ransom and possibly raped by bandits
Prospects
 The end of Cold War has ushered the beginnings of
increased cooperation at least among the permanent
members of the Security Council
o Effect
 The enforcement measures against Iraq
 The peacekeeping forces in East Timor
 Creation of War Crimes tribunals in
Yugoslavia and Rwanda
 The Security Council has committed its
involvement on issues such as women and
AIDS
Conclusion
 Challenges on the enforcement of the measures
provided under Chapter 7
o Conflict between international practice and the
literal provision of the Charter
o The effectiveness of non-military sanctions given
its history of being failures
o The validity of measures provided under Chapter
7 for humanitarian purposes
o Question of the unilateral use of force on the
ground of humanitarian purposes
o Unless this dynamic process of International Law
is translated in terms of amendments in written
obligations, the definition of what the law is
would be obscured in a cobweb of uncertainty
and ambiguity
CASE CONERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES)
ICJ Reports 1986, p.14 (1986), supra.
(This discussion deals with the aspect of self-defense as a
justification of US use of force in Nicaragua)
United  US argues that its use of force is justified
States: as it was a collective self-defense in behalf
of El Salvador.
The US is in breach of, among others, its obligations under
customary international law not to use force against
another State.
General rule: use of force is prohibited
 Requirements to be exempted from the general
rule (requirements for a valid use of force):
o Armed attack
o Necessity
o Proportionality
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In cases of an armed attack, States have the inherent right
to both collective and individual self defense
 In both cases, the right to self-defense is subject
to the State who is a victim of the armed attack
 Note that request for the exercise of collective
self-defense is needed. Such requirement is due
to the fact that there is no rule in customary
international law that permits the exercise of
collective self-defense in the absence of a request
by the State which regards itself as the victim of
an armed attack.
 Requisites for the exercise of collective self-
defense:
o State should have declared itself to
have been attacked
o Request by such State for the exercise
of collective self-defense
The Principle of non-intervention & the principle of non-use
of force
 Principle of non-intervention – the right of every
sovereign State to conduct its affairs without
outside interference
 There is only intervention as regards the matters
in which each State is permitted, by the principle
of its sovereignty, to decide freely. In this light,
intervention may be deemed as coercion.
 Acts which are in violation of both the principle of
non-intervention & the non-use of force
o Direct form of military action
o Indirect form of support to subversive
or terrorist armed activities within
another State
Whereas an armed attack would make collective self-
defense valid, such validity cannot arise in cases of use of
force of a lesser degree of gravity. In said cases (use of force
of lesser degree), the determining factor for the validity of
counter-measures is proportionality.
LEGALITY OF THE THREAT OR USE OF
NUCLEAR WEAPONS (ADVISORY OPINION)
ICJ Reports 1996, p. 226 (1996), supra.
This request for an advisory opinion was made by the UN
General Assembly. It principally asked: “Is the threat or use
of nuclear weapons in any circumstance permitted under
International Law?” The main substantive issues regarded
sources of international legal obligation and the interaction
of various branches of international law, particularly the
norms of international humanitarian law (jus in bello) and
the rules governing the use of force (jus ad bellum).
On deterrence and threat
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 The Court considered the existence of a State’s
mere “threat” to use nuclear weapons under
certain circumstances on a potential enemy or an
enemy. As regards this matter, the Court held that
such threat will only be legal if it is consistent with
military necessity and proportionality.
On the possession of nuclear weapons
 The Court emphasized that there is a difference
between the mere possession of nuclear weapons
and its actual use. While the UN Charter and some
other treaties prohibit the actual use of weapons
as it amounts to the use of force, there are
however no specific prohibition on the possession
of nuclear weapons.
 Bases for the conclusion that there is insufficient
evidence that the possession of nuclear weapons
had come to be universally regarded as illegal
o Hague Conventions - the Court does not
find any specific prohibition of recourse
to nuclear weapons in treaties expressly
prohibiting the use of certain weapons
of mass destruction, such as the use of
bacteriological or chemical weapons as
prohibited by the Hague Conventions
o International Customary Law - the court
was unable to find an opinio juris that
nuclear weapons are illegal to possess
Applicable provisions: Art. 2, par. 4, UN Charter & Art. 51
 General rule : A threat or use of force by means of
nuclear weapons that is contrary to Article 2,
paragraph 4, of the United Nations Charter and
that fails to meet all the requirements of Article
51, is unlawful
 Exception: In view of the current state of
international law, and of the elements of fact at
its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear
weapons would be lawful or unlawful in an
extreme circumstance of self-defense, in which
the very survival of a State would be at stake.
Doctrine: the elements of necessity & proportionality
should always be taken into consideration
CASE CONCERNING THE LEGALITY OF THE
USE OF FORCE (YUGOSLAVIA v. UNITED
STATES OF AMERICA), REQUEST FOR
PROVISIONAL MEASURES
ICJ Reports 1996, p. 226 (1996)
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Yugoslavia applied for provisional measures to stop the US
from using force against it. The US, along with other NATO-
member countries bombed various targets in Yugoslavia
affecting both the military and the civilians. Furthermore,
there were destructions in properties, including oil refineries
and chemical plants resulting in serious environmental
issues. Also, the use of weapons containing depleted
uranium is having far-reaching consequences for human
life.
Yugoslavia:  The acts of US are deliberately creating
conditions calculated at the physical
destruction of an ethnic group, in whole or
in part. And that the US is taking part in
the training, arming, etc. of the Kosovo
Liberation Army, in violation of its
obligation on non-intervention in the
internal affairs of another State.
 Yugoslavia asks the court to grant them
provisional measures, particularly the
cessation of US’ use of force. It made use
of Art. IX of the Genocide Convention and
Art. 38 as the bases for the ICJ
Jurisdiction in the case at bar
United 1. The ICJ has no jurisdiction pursuant to the
States: reservation made by the US to Art. IX
2. Yugoslavia failed to provide sufficient
proof required by the Genocide
Convention that the US has the intent to
destroy the ethnic group. US claimed that
such intent cannot be inferred from the
conduct of conventional military
operations against another State.
The Court did not grant provisional measures for
Yugoslavia because it does not have jurisdiction over the
case
The reservation to the Genocide Convention made by the
US is valid – reservations are not prohibited, and Yugoslavia
did not object when US made the reservation
The US also did not consent to Art. 38
In the event that the dispute amounts to threat to the
peace, breach of the peace or act of aggression, the
Security Council has special responsibilities under Chapter
VII of the UN Charter
“THE RELATIONSHIP BETWEEN THE UN
CHARTER AND GENERAL INTERNATIONAL
LAW REGARDING NON-USE OF FORCE: THE
CASE OF NATO’S AIR CAMPAIGN IN THE
KOSOVO CRISIS OF 1999”
by Shinya Murase
Context
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Milosevic engineers changes in the Serbian constitution
that vastly reduce the provincial autonomy of Kosovo. Other
measures put tens of thousands of Kosovar Albanians out of
work and restrict the activities of their cultural
organizations. As Western alarm over treatment of the
Albanians in Kosovo grew, the US envoy was sent to try to
negotiate peace. President Clinton ordered him to leave,
after President Milosevic refused to accept an autonomy
plan for Kosovo's Albanians secured by NATO troops. NATO
Secretary-General Javier Solana ordered air strikes after the
failure of the diplomatic efforts.
Lecture
Murase believes there are circumstances where the
unilateral use of force is not only permitted but also
perhaps required in order to prevent the worst conceivable
situations from taking place. Under such circumstances,
international lawyers, cannot and should not merely say
that the actions were illegal but were necessary and
legitimate. Murase believes that we should try to make
every effort for accommodating the ethical considerations
for necessity and legitimacy, as well as the normative
elements reflecting the actual power relations, into the
province of international law
Important points
The elements of opposability
1. Effectiveness
Factor of power needed to guarantee realization
of a measure in question. If a measure is not
implemented effectively, it is simply non-
opposable.
2. Legitimacy
The measure must conform to the general
interest of the international community in a
manner that outweighs the special interest or
interests of a particular State or a group of States.
3. Good faith
The principle of “good faith” is very important as
the subjective standard in evaluating whether the
measures in question can be considered
opposable under an imminent situation in which
there are no available alternatives.
Murase is of the opinion that the actions by NATO shall be
seen as unilateral measure taken by a group of States, and
as such, must be regarded as having opposability vis-à-vis
the Federal Republic of Yugoslavia. NATO’s actions, being
opposable ones, may be considered as measures
undertaken to prevent further deterioration of the situation
as there are no effective measures forthcoming from the
Security Council. In light of this, the NATO bombings can be
considered as an “opposable” use of force taken as an
unavoidable measure for the purpose of preventing the
worsening of conditions in an emergency
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situation where large-scale human rights violations were
being committed, and the UN Security Council measures
had no effect.
THE CAROLINE CASE
(Note: There is no actual case entitled “Caroline Case”. The
following discussion dissects the events in the 19th century
regarding a ship called “The Caroline”)
In 1837, settlers in Upper Canada rebelled against the
British colonial government. The United States remained
officially neutral about the rebellion, but American
sympathizers assisted the rebels with men and supplies,
transported by a steamboat named “the Caroline”. In
response, a British force from Canada entered United States
territory at night, seized the Caroline, set the ship on fire,
and sent it over Niagara Falls. At least one American was
killed.
Great The attack was an act of self-defense;
Britain:
United  A self-defense claimant would have to
States: show that the necessity of self-defense
was instant, overwhelming, leaving no
choice of means, and no moment of
deliberation
3. All the acts of the US are reasonable and
not excessive, since their acts are justified
by the necessity of self-defense, must be
limited by that necessity, and
kept clearly within it
Principle of Self-Defense
The terms "anticipatory self-defense", "preemptive self-
defense" and "preemption" traditionally refers to a state's
right to strike first in self-defense when faced with
imminent attack.
The Caroline Test
“…necessity of self-defense, instant,
overwhelming, leaving no choice of means, and no
moment for deliberation. It will be for it to show,
also, that the local authorities of Canada,- even
supposing the necessity of the moment authorized
them to enter the territories of the United States
at all,- did nothing unreasonable or excessive;
since the act justified by the necessity of self-
defense, must be limited by that necessity, and
kept clearly within it.”
1. Necessity
“Instant, overwhelming, leaving no choice of
means, and no moment for deliberation.”
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The use of force must be necessary because the
threat is imminent and thus pursuing peaceful
alternatives is not an option
2. Proportionality
The response must be proportionate to the
threat
Until now, the Caroline Test is the one being used to
determine the legality of acts of self-defense.
CLASS NOTES
“ASSESSING CLAIMS TO REVISE THE LOSS OF
WAR”
by M.W. Reisman
The development of weapons resulted in the creation of
laws about national defense. However, the effectivity of
such laws became doubtful as the development on
weapons became more progressive. Hence, Reisman tackles
the possibility of a regime change, questioning the settled
doctrine in armed conflict, to align international law to the
modern times.
First is the enumeration and discussion of the armed
conflict or self-defense regimes
• Proactive military force – lawful before the UN
Charter
• Reactive military force – consistent with the Caroline
test (necessary & proportional)
• Anticipatory self-defense – do unto others before
they do unto you
Test before the attack: when the state believes that it is
about to become a target; such must be palpable, imminent
and prospectively destructive to require defense as
prevention
As Reisman observed, the rules of the game/war has always
been a regime of mutually assured destruction and system
of minimum world order. However, such regime creates a
context of intense suspicion and distrust.
As a challenge to the prevailing rule is the Antiballistic
missile (ABM) weapon. Reisman claimed that a
comprehensive and effective ABM system in one
superpower would have defeated the deterrence
mechanism by tempting that state to strike first and then
hunker down behind its shield, which would cause the
second striker’s nuclear missiles to bounce off harmlessly.
Consequently, ABM enhances the ability of the major
nuclear and other potentially targeted states to protect
themselves from limited nuclear attack by other states.
On the other hand, there is also the preemptive self-
defense as brought about by the proliferation of atomic,
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biological, and chemical weapons (ABC weapons) and by the
diffusion of non-state actors (not superpowers).
• Preemptive self-defense – a claim to use
unilaterally, and without prior international
authorization, high levels of violence to arrest an
incipient development that is not yet operational
and not yet directly threatening.
Reisman favors the ABM system as it is an entirely passive
self-defense to combat states likely to be targets of surprise
ABC missile attacks.
On Regime Change
Reisman says that because the context has changed –
wherein necessity, proportionality, and discrimination are
no longer the sole factors to be considered – the legal
arrangements to implement policies of international law
must change as well.
CASE CONCERNING OIL PLATFORMS (ISLAMIC
REPUBLIC OF IRAN v. UNITED STATES OF
AMERICA)
ICJ Reports 1996, p. 803 (1996)
Great By destroying Iranian oil platforms, the US
Britain: breached its obligations under the Treaty of
Amity, Economic Relations and Consular
Rights regarding ‘freedom of commerce’
between the territories of the two States
United Iranian attacks on naval and commercial
States: vessels in the Persian Gulf constituted a
breach of the Treaty’s provisions on
‘freedom of commerce’ and ‘freedom of
navigation’. All the acts of the US are
reasonable and not excessive, since their
acts are justified by the necessity of self-
defense, must be limited by that necessity,
and kept clearly within it
The US did not violate the Treaty.
Although the US attacks were not justified under a separate
provision of the Treaty as “measures necessary to protect
the essential security interests”, they did not violate the
Treaty.
The US did not claim to have been exercising collective self-
defense on behalf of the neutral States. As regards its
individual self-defense, the US must show that attacks were
actually made upon it for which Iran was responsible.
Furthermore, US must also show that its actions were
necessary and proportional to the armed attack. However,
no evidence was submitted to support the contentions of
the US.
The Court used a technicality in the Treaty in order to
allow the US to escape liability.
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CLASS NOTES
B. International Court of Justice
UN Charter, Art. 92
The International Court of Justice shall be the
principal judicial organ of the United Nations. It
shall function in accordance with the annexed
Statute, which is based upon the Statute of the
Permanent Court of International Justice and forms
an integral part of the present Charter.
UN Charter, Art. 93
All Members of the United Nations are ipso facto
parties to the Statute of the International Court of
Justice.
A state which is not a Member of the United Nations
may become a party to the Statute of the
International Court of Justice on conditions to be
determined in each case by the General Assembly
upon the recommendation of the Security Council.
UN Charter, Art. 94
Each Member of the United Nations undertakes to
comply with the decision of the International Court
of Justice in any case to which it is a party.
If any party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by
the Court, the other party may have recourse to the
Security Council, which may, if it deems necessary,
make recommendations or decide upon measures
to be taken to give effect to the judgment.
UN Charter, Art. 96
1. The General Assembly or the Security Council
may request the International Court of Justice to
give an advisory opinion on any legal question.
2. Other organs of the United Nations and
specialized agencies, which may at any time be so
authorized by the General Assembly, may also
request advisory opinions of the Court on legal
questions arising within the scope of their
activities.
ICJ Statute, Art. 1
The International Court of Justice established by
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the Charter of the United Nations as the principal
judicial organ of the United Nations shall be
constituted and shall function in accordance with
the provisions of the present Statute.
ICJ Statute, Art. 34
1. Only states may be parties in cases before the
Court.
xxxx
ICJ Statute, Art. 35
1. The Court shall be open to the states parties to
the present Statute.
xxxx
APPLICABLE LAW
ICJ Statute, Art. 38, supra.
1. The Court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall apply:
a. International conventions, whether
general or particular, establishing rules
expressly recognized by the contesting
states;
b. International custom, as evidence of a
general practice accepted as law;
c. The general principles of law recognized
by civilized nations;
d. Subject to the provisions of Article 59,
judicial decisions and the teachings of
the most highly qualified publicists of
the various nations, as subsidiary means
for the determination of rules of law.
2. This provision shall not prejudice the power of the
Court to decide a case ex aequo et bono, if the
parties agree thereto.
ICJ Statute, Art. 59
The decision of the Court has no binding force
except between the parties and in respect of that
particular case.
JURISDICTION
ICJ Statute, Art. 36
1. The jurisdiction of the Court comprises all cases
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which the parties refer to it and all matters
specially provided for in the Charter of the United
Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at
any time declare that they recognize as
compulsory ipso facto and without special
agreement, in relation to any other state
accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if
established, would constitute a breach of
an international obligation;
d. The nature or extent of the reparation to
be made for the breach of an
international obligation.
3. The declarations referred to above may be made
unconditionally or on condition of reciprocity on
the part of several or certain states, or for a
certain time.
ADVISORY OPINIONS
HIGGINS, CHAPTER 11:
DISPUTE SETTLEMENT AND THE
INTERNATIONAL COURT OF JUSTICE
When the parties to a legal controversy believe that the
preferred solution is to have the issue resolved
authoritatively by a third party, there arises the possibility
for an international tribunal to act. Three kinds of data that
are worth looking at are: (1) the potential for the
International Court of Justice taking jurisdiction over various
states, (2) the actual use of the Court by various states, and
(3) the subject-matter upon which cases have been brought
before the Court.
The Potential for Jurisdiction
The competence of international tribunals is founded on
consent. Consent of principle rather than a consent in
relation to a particular dispute with a particular opponent is
increasingly being tolerated. Standing international courts
such as the International Court of Justice are established by
international treaty. It is the founding treaty itself (e.g. UN
Charter) which elaborates how it is that a court may have
jurisdiction in a particular dispute. The Inter-American and
European Courts on Human Rights, and the Court of the
European Community, are construed and their restricted by
their founding treaties as to subject-matter and states who
may bring claims. But the ICJ is viewed as the senior of all
the International Courts because any state that is a party to
the Statute (including any other state that has made special
application to be a party to the Statute) can potentially
come before it. And
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states (e.g. I accept, on condition States A and B accept also

the Court can deal with any question of international law. to settle disputes with me), or for a certain time (e.g. I
Article 38 of the ICJ Statute stipulates its function (to decide accept, for the next five years). The Optional Clause has also
in accordance with international law such disputes as are been treated as a treaty engagement, which led to the
submitted to it) and what it will apply to fulfil it (sources of possibility of reservations as a matter of general treaty law.
international law). There is thus an enormous potential for In Nicaragua vs. US the Court said that if it were acceptance
the use of the Court as to parties and subject- matter. under the Optional Clause were considered treaties, a
declaration of acceptance could not be withdrawn without
Actual Use of the Court
reasonable notice of termination.
Article 36 (1) provides that the jurisdiction of the ICJ
comprises cases which the parties refer to it and all matters
Reservations are permitted. In the Rights of Passage Case,
specially provided for in the UN Charter or in treaties or
the Portuguese reserved the possibility of terminating
conventions in force. Parties can bring before the Court a
acceptance immediately on notification. Normally, a
case ad hoc and on the basis of agreement (e.g. ELSI Case).
reservation to a treaty can only be made upon ratification
Since 1983 it has been increasingly used in several cases
of or accession to a treaty. But some states, such as Malta,
(Gulf of Maine, Libya vs. Malta, Denmark v. Norway, etc.).
have made a reservation which purports to allow them to
make further reservations. The legality of this has yet to be
Article 36 (1) also provides treaties as basis of jurisdiction.
tested.
Any treaty, bilateral or multilateral, can include a clause
which stipulates that disputes that arise about the
Three types of reservations are usually acceptable:
interpretation and application of the treaty are to be
1. relating to other parties / ratione personae (e.g. I
referred for judicial resolution. One example is the Vienna
accept the Court's jurisdiction, but I will not agree
Convention on Diplomatic Relations. The tendency to
to litigation of disputes with States Y and Z)
include jurisdiction clauses in either multilateral or bilateral
2. relating to time / ratione temporis; (e.g. I accept
treaties is markedly declining. This may partly reflect a
in 1990 the jurisdiction of the Court except those
growing variety of alternative dispute-settlement concerning 1985 events) and
procedures.
3. As to subject-matter / ratione materiae (e.g. I
accept the Court's jurisdiction, but not for the
Article 36 (2) provides for the 'Optional Clause' jurisdiction,
settlement of aviation disputes) –> of doubtful
stipulating that a state party to the Statute may at any time
legal status, because the Court must determine its
declare that it recognizes as compulsory ipso facto and
own jurisdiction.
without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court
The jurisdiction of the Court exists only in respect of what is
in legal dispute. This is like signing a blank cheque. The
common between the two states, taking into account each
acceptance may be indefinite, or upon notification of
state's reservations and conditions. Thus, the Court spends
termination, or for a fixed period of years. Although there is
a lot of time in determining its jurisdiction, as controversies
a declining emphasis on the Optional Clause, the
about it often arise in litigation. The increased tendency to
participation of third-world countries is increasing.
ad hoc reference to the Court will 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 a
accept jurisdiction if the parties agreed to use alternative
'legal dispute'. The Court has said that the only requirement
dispute-resolution procedures. Although several countries,
is that there are issues that involve any of the matters listed
by their statements, have welcomed the jurisdiction of the
in Article 36 (2). It also said that it is irrelevant if the matters
ICJ on various legal issues, including those involving human
arose in a politically charged context. The South West Africa
rights, a problem arises because these countries are
cases, where the Court said that the issues brought were
parties to the International Covenant of Human Rights,
'really' political and better determined by the Security
which treaty has its own quasi-judicial procedures for the
Council, is out of line with this consistent attitude of the
settlement of legal disputes concerning human rights.
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 on
the Optional Clause may be made unconditionally or on
a point of law or fact, a conflict of legal view or interests
condition of reciprocity, on the part of several or certain
between two persons'. The differing views of the

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parties regarding the existence of a dispute between them
are not determinative, and it is for the Court to decide
based on the facts of the case. In advisory jurisdiction, a
state may claim that the advice should not be given because
there actually exists a 'dispute', and that it is not appropriate
to give advice to a UN body that would entail the
determination of a dispute between states. In the UN
Headquarters Case, the Court held that neither the fact that
different views existed within the US administration, nor the
fact that the PLO office, which was subject for closing based
on a US law that was passed, had not actually been closed
down, meant that a dispute did not exist between the UN
and the US.
Some Issues Relating to Advisory Opinions
Article 65 of the Statute provides that the Court may give
an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with
the UN Charter to make such a request. There are no
adversarial proceedings and there will be no judgment
binding on the parties, but only advice as to the state of the
law. But Article 68 of the Statute provides that the Court
shall apply the same procedures as in contentious cases 'to
the extent to which it recognises them to be applicable'.
State parties to the Statute get notified under Article 66 of
the request and can present their views even though they
are not parties to the case.
The principle of audiatur et altera pars, which states that
the Court will not determine in their absence the rights of
third parties, applies to advisory opinions, and it underlies
consent as basis for the Court's jurisdiction. This has been
applied to contentious jurisdiction in the Monetary Gold
Case and also applied in the Phosphates Case. The test used
by the Court in that case is whether the legal interests of the
third party that was not before the Court was 'the very
subject matter of the decision'.
In the Eastern Carelia Case, the Permanent Court declined
to give an advisory opinion because the issue is related the
main point of a pending dispute between the two states,
such that answering the question means deciding the
dispute. As far as contentious litigation is concerned, Article
62 of the Statute allows a state not party to a litigation in
the Court to intervene should it consider that 'it has an
interest of a legal nature which may be affected by the
decision in the case'. In cases under Article 63 which entails
the construction of a Convention to which 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 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 intervene when the state has no jurisdictional
connection to the subject-matter or the other states,
whether the proper stage to intervene is at the jurisdictional
stage or at
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the stage of the merits. As to the last issue, the Court has
found an application at the jurisdictional stage 'premature'.
In several cases such as Certain Expenses of the UN and the
Western Sahara Case, the Court, despite the claims of a
State-party that giving an advisory opinion would be
equivalent to settling a dispute, gave an opinion
nonetheless. In the Western Sahara Case, the Court agreed
that there was a legal dispute between Morocco and Spain
at the time of the request for advisory opinion, but it still
proceeded with the opinion but allowed Morocco an ad hoc
judge on the Bench, as there was already a Spanish judge.
The Court also distinguished the Eastern Carelia Case, noting
that in that case one of the key states was neither a party to
the Statute, nor a member of the League, while in the case
of Spain and Morocco they were both members of the UN.
The issue of third-party rights has arisen not bilaterally but
in the context of the work of the requesting organ. The ICJ
has shown that it will rather robustly preserve its right to
provide advice to authorized requesting organs.
Dispute Settlement and Law Development
The determination of specific disputes and the provision of
specific advice by the ICJ develop international law. It is hard
to point to a case where the Court has just applied rules to
facts. Although decisions of the Court are said to be a
subsidiary source of international law (Article 38 (1) (c) of the
Statute) and any judicial determination is only binding upon
the parties before it (Article 59), in reality, the judgments
and opinions of the Court are treaty as authoritative
pronouncements upon the current state of international
law.
Even advisory opinions have a role of great importance.
Very often, the organ requesting an advisory opinion will
then pass a resolution 'appreciating' or 'accepting' that
opinion. This was done in the Reservations Case an in Legal
Expenses of the United Nations. It does not give rise to a
legal obligation, but it is a public affirmation of the advice's
authoritative quality. Many resolutions of disputes have
been assisted by advisory opinions (e.g. Admissions Cases).
Higgins opines that the Court, even though it is necessarily
choosing, explaining, and refining rules, should still do so in
respect of the particular issue it is required to decide or
upon which it is asked to advise.
CASES ON JURISDICTION
CASE CONERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES)
ICJ Reports 1986, p.14 (1986), supra.
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(This discussion deals with the jurisdictional aspect of the
case.)
Nicaragua: The Court had jurisdiction over its
application because both Nicaragua and the
US had accepted the compulsory jurisdiction
of the Court under the Optional
Clause.
United  Nicaragua's acceptance of the compulsory
States: jurisdiction of the PCIJ was not in force in
1945, because it failed to ratify the Statute
of the PCIJ, such that Art. 36 (5) of the ICJ
Statute did not apply to it;
 Three days before the application had
been filed, the US filed a notification, to
take effect immediately, stating that the
compulsory jurisdiction shall not apply to
disputes with any Central American State;
and
 US made a reservation in its Optional
Clause whereby disputes arising under a
multilateral treaty, which could affect
third states which are parties to the treaty
but are not participating in the
proceedings before the Court, were
excluded from the jurisdiction of the
Court.
The ICJ held that it had jurisdiction.
Nicaragua's ratification of the ICJ Statute gave its previous
declaration under the PCIJ Statute the binding force which
it previously lacked.
The US declaration could only be terminated upon
reasonable notice. Although a declaration under the
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
affect third parties such as El Salvador. Therefore, the
reservation of the US prevented the Court from
entertaining the claims based on violations of multilateral
treaties such as the UN Charter and the OAS Charter.
However, the effect of the reservation did not exclude the
application of principles of international customary law
enshrined in treaty law provisions.
CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF THE
1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT AT LOCKERBIE
(LIBYA v. UNITED STATES)
ICJ Reports 1998, p. 115 (1998)
Pan Am flight 103, while flying over Lockerbie, Scotland, was
destroyed by an explosion due to a bomb placed inside
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the airplane. The US Grand Jury brought murder charges for
murder against two Libyan nationals suspected of having
caused the bomb to be placed aboard the aircraft. US
requested the extradition of the two alleged offender.
The Montreal Convention (on Hijacking),
Libya:
under which Libya has the right to
investigate the alleged offense and exercise
domestic jurisdiction, is applicable to this
dispute.
United  the Court lacks jurisdiction because:
States: o Libya failed to show that
 there exists a legal dispute
between the Parties; and that
 Such dispute, if any, concerns
the interpretation or
application of the Montreal
Convention.
 Even if a dispute existed, the UN Security
Council (UN SC) Resolutions which
required Libya to surrender the two
accused prevailed over the provisions of
the Montreal Convention.
The ICJ held that it had jurisdiction.
A dispute is defined as 'a disagreement on a point of law or
fact, a conflict of legal views or of interest between two
persons'. The parties in this case differed on the question of
whether the destruction of the aircraft was governed by the
Montreal Convention. The UN SC Resolutions were adopted
after Libya filed its application. In accordance to
jurisprudence, “if the Court had jurisdiction on that date, it
continues to do so; the subsequent coming into existence
of the above-mentioned resolutions cannot affect its
jurisdiction once established.”
CASE CONCERNING ELETTRONICA SICULA
S.P.A. (ELSI) (UNITED STATES OF AMERICA v.
ITALY)
ICJ Reports 1989, p. 15 (1989)
The US claimed in its diplomatic claim against Italy that the
latter violated the provisions of the Friendship, Commerce
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,
which was under liquidation.
Italy: The ICJ has no jurisdiction because of the
failure of the US to exhaust local remedies.
The claims should have been brought
before Italian municipal courts.
United The FCN Treaty did not categorically refer
States: to the local remedies rule in cases of
diplomatic protection.
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The ICJ held that it had jurisdiction.
The Court's jurisdiction is based on the Statute of the Court
and the FCN Treaty. The doctrine of exhaustion of local
remedies was a fundamental rule of customary
international law and was not rendered inapplicable simply
because of the absence of words making it specifically
applicable to a certain type of action.
But the claim was still deemed admissible since Italy failed
to establish that a remedy existed under municipal law
which was available to the US corporations.
SOUTH WEST AFRICA CASES (ETHIOPIA v.
SOUTH AFRICA; LIBERIA v. SOUTH AFRICA),
SECOND PHASE
ICJ Reports 1966, p.6 (1966), supra.
(For a more exhaustive discussion, refer to p. 8)
Ethiopia's and Liberia's applications alleged the
contravention of duties by South Africa as Mandatory under
the League of Nations Mandate for South West Africa. The
mandates contained a jurisdictional clause providing for a
reference of disputes to the PCIJ (now ICJ) by virtue of Article
37 of the ICJ Statute.
South Since the League of Nations and PCIJ were
Africa: dissolved, the rights and obligations under
the Mandate relating to the administrative
supervision by the League and submission
to the PCIJ had become extinct.
The ICJ held that it had jurisdiction.
The obligation of South Africa to submit to compulsory
jurisdiction was effectively transferred to the ICJ. Although
the League was dissolved in 1946, the UN Charter entered
into force in 1945, and all three parties became UN
members by ratifying the Charter. By the effect of Art. 92
and 93 of the UN Charter and Art. 37 of the ICJ Statute,
South Africa had bound itself to accept the compulsory
jurisdiction of the ICJ in lieu of the PCIJ.
The individual member States of the League such as
Ethiopia and Liberia had no right of direct intervention
relative to the mandatories, since this was the prerogative
of the League organs. Though States retained the rights
which they possessed as members of the League despite its
dissolution it did not mean that by and upon such
dissolution they acquired rights which they never did
individually possess.
CASE CONCERNING CERTAIN PHOSPHATE
LANDS IN NAURU (NAURU v. AUSTRALIA)
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ICJ Reports 1992, p. 240 (1992)
Nauru was placed under UN Trusteeship, with the Joint
Administering Authority being Australia, New Zealand and
the UK. Australia was given full powers of legislation,
administration and jurisdiction over Nauru on behalf of the
Administering Authority.
Nauru instituted proceedings against Australia, alleging the
breach of its trusteeship obligations by failing to rehabilitate
parts of Nauru from which phosphates had been extracted.
Australia: The Court lacks jurisdiction because:
 The case involved the responsibility of
third States which had not consented to
the Court’s jurisdiction; and
 It made a reservation in its declaration
that jurisdiction does not apply to any
dispute where the parties have agreed or
shall agree to have “recourse to some
other method of peaceful settlement.”
The ICJ held that it had jurisdiction.
The fact that New Zealand and the UK were not parties to
the proceedings did not render the application
inadmissible. The present case differed from the Monetary
Gold case since the interests of New Zealand and the UK did
not constitute the very subject matter of the decision which
the Court would give.
A finding by the Court regarding the responsibility
attributed to Australia by Nauru might have implications for
the legal situation of the two other States concerned, but
no finding in respect of that legal situation would be needed
as a basis for the Court’s decision in this case. The interests
of New Zealand and the UK are protected by Article 59 of
the ICJ Statute, which provides that "The decision of the
Court has no binding force except between the parties and
in respect of that particular case."
CASE CONCERNING EAST TIMOR (PORTUGAL
v. AUSTRALIA)
ICJ Reports 1995, p. 90 (1995)
Portugal commenced proceedings against Australia,
claiming that Australia infringed the rights of the people of
East Timor to self-determination and permanent
sovereignty over their natural resources and the rights of
Portugal as administering power by entering into an
agreement with Indonesia over the delimitation of the
continental shelf between Australia and East Timor, which
eventually evolved into an treaty creating a “Zone of
Cooperation” between Australian and Indonesia in the
exploitation of natural resources in the said continental
shelf.
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Australia: The Court could not rule upon the
application without ruling on the rights and
obligations of Indonesia, which had not
consented to the jurisdiction of the Court.
The ICJ held that it had no jurisdiction.
The Court agreed with Portugal that the right of self-
determination is an erga omnes right and that states had a
duty to respect this right is an erga omnes obligation.
However, the Court could not rule upon the dispute
between Australia and Portugal without having to rule upon
whether Indonesia’s entry into East Timor was lawful. The
very subject matter of the decision would necessarily be a
determination of whether Indonesia acquired power to
conclude treaties on behalf of East Timor, which
determination could not be made without the consent of
Indonesia.
This case is an authority on the erga omnes obligation
of states to respect the right to self-determination.
The doctrine applies to both contentious cases and
advisory opinions.
CLASS NOTES
CASES ON PROVISIONAL MEASURES
CASE CONCERNING APPLICATION OF THE
CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA v. SERBIA AND
MONTENEGRO)
ICJ Reports 2007, p. 43 (2007), supra.
Bosnia and Herzegovina accused Yugoslavia of
responsibility for the commission of genocide in Bosnia. In
its application, Bosnia asked the Court to grant, as
provisional measures, that Yugoslavia cease all acts of
genocide and cease providing support for any group
engaging in military or paramilitary activities against
Bosnia, and requested that the Court indicate that Bosnia
had the right to seek and receive assistance in defending
itself.
The Court granted the request for provisional measures.
The Court should not indicate such measures unless the
provisions invoked by the applicant or found in the ICJ
Statute appeared, prima facie, to afford a basis on which the
jurisdiction of the Court might be established. The object of
the power to indicate provisional measures of protection
was to ensure that irreparable prejudice should not be
caused to rights which might subsequently be adjudged to
belong to one of the parties. The Court could
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only indicate provisional measures to be taken by the
parties but not by third States who would not be bound by
the eventual judgment.
CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF THE
1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT AT LOCKERBIE
(LIBYA v. UNITED STATES)
ICJ Reports 1998, p. 115 (1998), supra.
Libya requested the Court for provisional measures to enjoin
the US from the use of any force against Libya. There was a
previous resolution by the Security Council (Resolution 748)
determining the failure of Libya to surrender the two
accused as a threat to international peace and security.
The Court denied the request for provisional measures.
Since Libya and the US are UN members, they are obliged to
accept and carry out the decisions of the Security Council.
Such obligation prevails over the duty of the parties under
the Montreal Convention. An indication of the measures
requested by Libya would be likely to impair the rights,
which appear prima facie to be enjoyed by the United States
by virtue of the Security Council Resolution.
CASES ON DISPUTE
COMPETENCE OF THE GENERAL ASSEMBLY
FOR THE ADMISSION OF A STATE TO THE
UNITED NATIONS (ADVISORY OPINION)
ICJ Reports 1950, p. 4 (1950)
The UN GA asked the Court to give an advisory opinion
regarding the conditions of admission of a State to
membership in the UN found in Article 4 of the Charter,
particularly with regard to the following issues:
1. Whether or not a UN Member is juridically entitled to
make its consent on the admission of a State
dependent on conditions not expressly provided by
Art. 4, Par. 1
2. Whether or not a UN Member, which recognizes the
conditions in Art. 4 to be fulfilled by the State seeking
admission, can subject its affirmative vote to the
additional condition that other States be admitted
together with the concerned State
A Member is not legally entitled to make admission
dependent on conditions not expressly provided by the
Article. Art. 4, par. 1 is exclusive.
Art. 4, Par. 1 enumerates five conditions: a candidate must
be:
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6) a State;
7) peace-loving;
8) must accept the obligations of the Charter;
9) must be able to carry out these obligations;
10) must be willing to do so.
All these are subject to the judgment of the Organization.
The Court held that these conditions were exhaustive as the
provision would lose significance if other conditions could be
demanded. “The term ‘Membership in the United Nations is
open to all other peace-loving States’ indicates that States
which fulfill the conditions stated have the qualifications
requisite for admission . . . They are not merely the
necessary conditions, but also the conditions which suffice.”
However, the Court added that the exhaustive nature of Art.
4 does not prohibit the taking into account of any factor
reasonably, and in good faith, connected with the conditions
laid down. The taking into account of such factors is implied
in the very wide and elastic nature of the conditions. No
relevant political factor, that is to say, none connected with
the conditions of admission, is excluded.”
The Court held that any additional condition would be
contrary to the letter and spirit of the Charter as it would
“prevent each application for admission to be examined
and voted on separately on its own merits.” The Court said
that it constitutes a new condition because it is “entirely
unconnected with those prescribed in Art. 4.” Finally, it
makes admission dependent not on the conditions
required, but on extraneous ones concerning other States.
THE MAVROMMATIS PALESTINE CONCESSIONS
PCIJ, Ser. A, No. 2, (1924), supra.
(For an exhaustive discussion on the merits, refer to p. 22)
Whether or not the Court has jurisdiction to entertain the
case in accordance with Art. 26 of the Mandate
YES TO THE JERUSALEM CONCESSIONS; NO TO THE JAFFA
CONCESSIONS
The Court first looked at the conditions laid down by Art. 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
(Greece); 2) the dispute cannot be settled by negotiation;
and 3) the dispute related to the interpretation or the
application of the provisions of the Mandate.
The Court found that there was a dispute or a disagreement
on a point of law or fact, a conflict of legal views or of
interests between two persons. The dispute in this case was
first between a private person and a State. When the Greek
government took up the case, the dispute
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entered into a new phase – it entered into the domain of
international law, and became dispute between two states.
“Once a State has taken up a case on behalf of one of its
subjects, which it is entitled to protect under international
law, before an international tribunal, in the eyes of the
latter, the State is the sole claimant.“ “The fact that Britain
and Greece are the opposing parties to the dispute arising
out of the Mavrommatis Concessions is sufficient to make it
a dispute between two States within the meaning of Article
26.”
As regards the second condition, the Court found that the
correspondence between the two countries proved that
they could not settle the matter through negotiation.
To determine if the third condition was fulfilled, the Court
relied on Art. 2, Par. 1 of the Mandate( which provides that
the Administration of Palestine shall have full power to
provide for public ownership or control of any of the natural
resources of the country or of the public works, services and
utilities established or to be established therein, subject to
international obligations accepted by the Mandatory).
Using the Rutenberg Concessions (which partially overlaps
with the Mavrommatis Concessions), the Court found that
they constitute an application by the Administration of
Palestine of the system of “public control” with the object of
developing the natural resources of the country and of
operating public works, services and utilities. Thus, these
concessions fall within the scope of Art. 2 of the Mandate
and, consequently, Art.
26. But since the two concessions only partially overlap, the
Court had to determine which of the Mavrommatis
Concessions fall under the provisions of the Mandate.
The Court held that the phrase “the international
obligations accepted by the Mandatory” includes the
obligations arising out of Protocol XII of the Lausanne
Treaty. This Protocol concerns concessionary contracts duly
entered into before Oct 29, 1914. Since the Jerusalem
Concessions were dated from before the Protocol, they fall
under Art. 2 of the Mandate. However, the Jaffa
Concessions, although dated January 17 and March 6, 1914,
were not confirmed by the Imperial Firman. Therefore, they
do not fall under the Protocol. In sum, the Court held that it
had jurisdiction to entertain the claim relating to Jerusalem
only.
APPLICABILITY OF THE OBLIGATION TO
ARBITRATE UNDER SECTION 21 OF THE
UNITED NATIONS HEADQUARTERS
AGREEMENT OF 26 JUNE 1947
PCIJ, Ser. A, No. 2, (1924), supra.
The UN GA adopted a resolution on 2 March 1988 to request
the Court for an advisory opinion. The question was: “In the
light of facts reflected in the reports of the Secretary-
General, is the United States of America, as a
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party to the Agreement between the United Nations and the
United States of America regarding the Headquarters of the
United Nations, under an obligation to enter into arbitration
in accordance with section 21 of the Agreement?”
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 provided:
“(a) Any dispute between the United Nations 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 agreed mode of
settlement, shall be referred for final decision to a tribunal
of three arbitrators, one to be named by the Secretary-
General, one to be named by the Secretary of State of the
United States, and the third to be chosen by the two, or, if
they should fail to agree upon a third, then by the President
of the International Court of Justice.” If there was a dispute,
the Court had to determine whether that dispute
concerned the interpretation or application of the
Headquarters Agreement and had not been settled by
negotiation or other agreed mode of settlement.
A dispute is disagreement on a point of law or a conflict of
legal views or interests is a matter for objective
determination and cannot depend upon the mere
assertions or denials of parties. The Court found the
opposing attitudes of the UN and the USA showed the
existence of a dispute.
The Court then considered whether the dispute was one "not
settled by negotiation or other agreed mode of settlement",
in the terms of section 21 (a). The Court found that, taking
into account the United States' attitude, the Secretary-
General had in the circumstances exhausted such
possibilities of negotiation as were open to him, nor had any
"other agreed mode of settlement" been contemplated by
the United Nations and the United States. In particular, the
current proceedings before the United States courts could
not constitute and "agreed method of settlement" within
the meaning of section 21, considering that their purpose
was the enforcement of the Anti- Terrorism Act and not the
Agreement. Furthermore, the United Nations had never
agreed to a settlement in the domestic courts.
The Court held that the United States was bound to respect
the obligation to enter into arbitration. That conclusion
would remain intact even if it were necessary to interpret
the settlement that the measures against the Mission were
taken "irrespective of any obligations" of the United States
under the Headquarters Agreement as intended to refer not
only to any substantive obligations under sections 11-13 but
also to the obligation to arbitrate provided for in section 21.
It was sufficient to recall the
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fundamental principle of international law that
international law prevailed over domestic law, a principle
long endorsed by judicial decisions.
CASES ON ADVISORY OPINIONS
LEGALITY OF THE THREAT OR USE OF
NUCLEAR WEAPONS (ADVISORY OPINION)
ICJ Reports 1996, p. 226 (1996), supra.
(This section deals with the jurisdictional aspect of the case.
For a discussion on the merits of the case, refer to p. 12)
Jurisdictional issue: Whether or not the Court had
jurisdiction to entertain this request for an advisory opinion
submitted by the WHO, a specialized agency.
The WHO failed to satisfy the requisites for asking an
advisory opinion.
There are three conditions that must be satisfied for the
Court to acquire jurisdiction to entertain a request for an
advisory opinion submitted by a specialized agency.
1. First, the agency requesting the opinion must be
duly authorized under the UN Charter to request
opinions from the Court.
2. Second, the opinion requested must be on a legal
question.
3. Third, the question must be one arising within the
scope of the activities of the requesting agency.
The first two conditions were met; however, the Court
found that “although according to its Constitution the
World Health Organization (WHO) is authorized to deal
with the effects on health of the use of nuclear weapons,
or of any other hazardous activity, and to take preventive
measures aimed at protecting the health of populations in
the event of such weapons being used or such activities
engaged in, the question put to the Court in the present
case relates not to the effects of the use of nuclear
weapons on health, but to the legality of the use of' such
weapons in view of their health and environmental effects.”
The Court pointed out that whatever these effects may be,
the competence of WHO to deal with them is not
dependent on the legality of the acts that caused them.
The Court also held that the responsibilities of WHO are
necessarily restricted to the sphere of public “health” and
cannot encroach on the responsibilities of other parts of the
UN system, and that there is no doubt that questions
concerning the use of force, the regulation of armaments
and disarmament are within the competence of the UN and
lie outside that of the specialize agencies like the WHO.
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Therefore, the request for an advisory opinion submitted by
WHO thus does not relate to a question which arises "within
the scope of [the] activities" of that Organization.
CASE OF THE MONETARY GOLD REMOVED
FROM ROME IN 1943 (ITALY v. FRANCE, UNITED
KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND AND UNITED STATES OF
AMERICA)
ICJ Reports 1954, p. 19 (1954)
France, UK, USA, Albania and other states signed the
Agreement on Reparation from Germany (14 January 1946),
on the Establishment of an Inter-Allied Reparation Agency
and on the Restitution of Monetary Gold in Paris in 1946.
Italy adhered to its provisions by a Protocol in 1947. The
Agreement provided that the monetary gold found in
Germany should-be pooled for distribution among the
countries which can establish that a definite amount of
monetary gold belonging to them “was looted by Germany
or, at any time after 12th March, 1938, was wrongfully
removed into German territory”. The implementation of 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
thus the Tripartite Commission, by signing the Washington
Statement in 1951, decided to submit to an arbitrator the
issue of whether the gold belonged to Albania or to Italy or
to neither. The Arbitrator opined that the gold in question
belonged to Albania and the opinion was communicated to
the Commission and to Italy and Albania. However, Albania
made no application. Therefore, Italy, within the ninety-day
period, made an Application to the ICJ instituting
proceedings against France, UK and USA, submitting that: 1)
the Governments of France, UK and USA should deliver to
Italy any share of monetary Gold that may be due to Albania
in partial satisfaction for the damage caused to Italy by the
Albanian Law of 1945; and 2) it’s right to receive the gold
must have priority over the claim of UK.
Five months after, Italy filed a document entitled
“Preliminary Question” drawing the attention of the Court
to the fact that its first Submission invited the Court to pass
upon the international responsibility of Albania to Italy
hence the jurisdiction of the Court to adjudicate such
question without Albania’s consent is doubtful. It submitted
that the Court had no jurisdiction. On the other hand, UK
submitted that: 1) in view of Italy’s Objection the Italian
Application does not conform or no longer conforms with
the Washington Statement and is accordingly invalid and
void hence there is no longer before the Court any
Application; and in the alternative; 2) the Italian Objection
amounts to a withdrawal or cancellation of its Application
and disqualifies Italy from proceeding any further under the
Tripartite Washington Statement; and 3) therefore, it is
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entitled to the gold in accordance with the Washington
Statement.
Court has no jurisdiction to adjudicate the issue based on
Italy’s application.
The Court held that Italy’s first submission (that the gold
must be delivered to her) required the determination of
whether Albania has committed any international wrong
against Italy and whether Albania is under an obligation to
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
could not exercise its jurisdiction over a State without the
latter’s consent. In the present case, Albania’s legal
interests would not merely be affected but would form the
very subject matter of the decision. Hence, any decision of
the Court would not be binding upon any party (even upon
States which submitted to its jurisdiction i.e., France, UK,
USA, Italy). Likewise, Italy’s second submission (that priority
should be given to her over the UK) cannot be resolved by
the Court as it is predicated on the determination that as
between Albania and Italy, the gold should go to Italy.
CERTAIN EXPENSES OF THE UNITED NATIONS
(ARTICLE 17, PARAGRAPH 2, OF THE CHARTER)
(ADVISORY OPINION)
ICJ Reports 1962, p. 151 (1962), supra.
(This section deals with the jurisdictional aspect of the case.
For a discussion on the merits of the case, refer to p. 22)
Jurisdictional issue: Whether or not the Court had jurisdiction
to entertain this request for an advisory opinion.
The Court agreed to give an advisory opinion. It held that its
power to give advisory opinions is derived from Art. 65 of
the Statute. It is of a discretionary character. However, the
Court can only give an advisory opinion on a legal question.
WESTERN SAHARA (ADVISORY OPINION)
ICJ Reports 1975, p. 12 (1975), supra.
(This section deals with the jurisdictional aspect of the case.
For a discussion on the merits of the case, refer to p. 34)
Jurisdictional issue: Whether or not the Court had
jurisdiction to entertain this request for an advisory opinion.
The Court has the competence to render an advisory
opinion in this case.
Under Art. 65, Par. 1, of the Statute, it is stated that:
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“The Court may give an advisory opinion on any
legal question at the request of whatever body
may be authorized by or in accordance with the
Charter of the United Nations to make such a
request.”
The Court noted that the UN GA is suitably authorized by
Art. 96, Par. 1 of the Charter. The Court also found that the
two questions submitted are framed in terms of law and
raise problems of international law. They are in principle
questions of a legal character, even if they also embody
questions of fact, and even if they do not call upon the Court
to pronounce on existing rights and obligations. The Court
is accordingly competent to entertain the request.
On the objection of Spain that the question involved a
historical question, the Court found that there was nothing
in the UN Charter or the Statute to limit either the
competence of the GA to request an advisory opinion, or
the competence of the Court to give one, to legal questions
relating to existing rights or obligations.
As to the objection of Spain that it had not given its consent
to the submission of the case, the Court said that Spain is a
Member of the UN and has accepted the provisions of the
Charter and the Statute by virtue of which it has, in general,
given its consent to the exercise by the Court of its advisory
jurisdiction. The Court also deemed it fit to construe the
principle of consent as permissive rather than directive in
that the Court still recognized that the lack of consent might
constitute a ground for declining to give the opinion
requested if, in the circumstances of a given case,
considerations of judicial propriety should oblige the Court
to refuse an opinion. In short, the consent of the State
continues to be relevant, not for the Court’s competence,
but for the appreciation of the propriety of giving an
opinion.
LEGAL CONSEQUENCES OF THE
CONSTRUCTION OF A WALL IN THE
OCCUPIED PALESTINIAN TERRITORY
(ADVISORY OPINION)
ICJ Reports 2004, p. 176 (2004), supra
(This section deals with the jurisdictional aspect of the case.
For a discussion on the merits of the case, refer to p. 95)
The Court has the competence to render an advisory
opinion in this case.
The Court noted first that its competence in this regard is
based on Article 65, paragraph 1, of its Statute, according to
which the Court “may give an advisory opinion on any legal
question at the request of whatever body may be
authorized by or in accordance with the Charter of the
United Nations to make such a request”, and secondly that
the General Assembly, which seeks the advisory opinion, is
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authorized to do so by Article 96, paragraph 1, of the
Charter, which provides:
“The General Assembly or the Security Council
may request the International Court of Justice to
give an advisory opinion on any legal question.”
It observed that Article 10 of the Charter has conferred
upon the General Assembly a competence relating to “any
questions or any matters” within the scope of the Charter,
and that Article 11, paragraph 2, has specifically provided it
with competence on “questions relating to the maintenance
of international peace and security brought before it by any
Member of the United Nations . . .” and to make
recommendations under certain conditions fixed by those
Articles.
Israel contended that the GA acted ultra vires under the
Charter because its request was not in accordance with
Article 12, Paragraph 1. The Court first observed that a
request for an advisory opinion is not a “recommendation”
by the General Assembly “with regard to *a+ dispute or
situation”, within the meaning of Article 12, but considers it
appropriate to examine the significance of that Article,
having regard to the practice of the United Nations. It notes
that, under Article 24 of the Charter, the Security Council
has “primary responsibility for the maintenance of
international peace and security” and that both the Security
Council and the General Assembly initially interpreted and
applied Article 12 to the effect that the Assembly could not
make a recommendation on a question concerning the
maintenance of international peace and security while the
matter remained on the Council’s agenda, but that this
interpretation of Article 12 has evolved subsequently. The
Court held that the GA did not exceed its competence by
submitting the request.
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
any resolution falling within the subject-matter for which
the Session had been convened, and otherwise within its
powers, including a resolution seeking the Court’s opinion.
It was contended that the request for advisory opinion did
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
directed to the legal consequences arising from a given
factual situation considering the rules and principles of
international law, including the Geneva Convention relative
to the Protection of Civilian Persons in Time of War of 12
August 1949 (hereinafter the “Fourth Geneva Convention”)
and relevant Security Council and General Assembly
resolutions. The Court further pointed out that lack of clarity
in the drafting of a question does not deprive the Court of
jurisdiction. Rather, such uncertainty will require
clarification in interpretation, and such necessary
clarifications of interpretation have frequently been given
by the Court. Therefore, the Court would, as it
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has done often in the past, “identify the existing principles
and rules, interpret them and apply them . . ., thus offering
a reply to the question posed based on law” (Legality of the
Threat or Use of Nuclear Weapons, supra).
It was also contended that the abstract nature of the
question raised an issue of jurisdiction. The Court held that
“to contend that it should not deal with a question couched
in abstract terms is ‘a mere affirmation devoid of any
justification’ and that ‘the Court may give an advisory
opinion on any legal question, abstract or otherwise’”
(Legality of the Threat or Use of Nuclear Weapons).
The Court also rejected the argument that it had no
jurisdiction due to the political character of the question
involved. As is clear from its long-standing jurisprudence on
this point, the Court considered that the fact that a legal
question also has political aspects, “does not suffice to
deprive it of its character as a ‘legal question’ and to
‘deprive the Court of a competence expressly conferred on
it by its Statute’, and the Court cannot refuse to admit the
legal character of a question which invites it to discharge an
essentially judicial task” (Legality of the Threat or Use of
Nuclear Weapons).
The Individual
International Law is a system that provides normative
indications for states in their relations with each other.
Although there is no reason to exclude individuals from its
reach, the main participants are sovereign states. However,
how can it be guaranteed that the needs of individuals who
comprise the states are not ignored? The classical
international law has relatively little to offer in this regard.
The individual is left with no direct access to a forum, no
legal right that he can call his own, no redress against his own
state. (Higgins, Chapter 6)
A. Human Rights
HIGGINS, CHAPTER 6:
RESPONDING TO INDIVIDUAL NEEDS: HUMAN
RIGHTS
Human Rights Law stipulates that obligations are owed
directly to individuals, and not to the national government
of an individual. It provides for individuals to have access to
tribunals and for the effective guarantee of those
obligations. Once it is recognized that obligations are owed
to individuals, there is no reason why the obligation should
be owed only to foreign individuals and not to nationals. It
is unsustainable to regard the treatment of nationals as
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matters falling essentially within domestic jurisdiction, and
unreviewable by the international community.
Obligations are owed directly to individuals, because they
have human rights. Human Rights are rights held simply by
virtue of being a human person. They are part of the
integrity and dignity of the human being. They cannot be
given or withdrawn at will by any domestic legal system.
Although they may most effectively be implemented by the
domestic legal system, that system is not the source of the
right. International human rights law is the source of the
obligation, albeit reflected in the content of the domestic
law. It follows that the right will be the same in all
jurisdictions.
Argument: There can be no fully universal concept of
human rights, taking into account the diverse cultures and
political systems of the world.
This is a point advanced by states and liberal scholars.
This is rarely advanced by the oppressed. The non-
universal, relativist view of human rights is in fact a
very state-centered view and loses sight of the 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 individuals everywhere
want the same essential things. There is nothing in
these that is dependent upon culture, religion, or stage
of development. This has been a debate over the
political and cultural relativism in human rights. The
International Covenant on Civil and Political Rights has
now provided for an international monitoring
mechanism, through the Committee on Human Rights.
Argument: It is to be expected that the manner of
implementation would vary according to the particular
political system.
While states may indeed implement rights in different
ways, the content of what is to be implemented
depends on the international standard and will not
vary.
Cultural and Religious Diversity
The standards were adopted in principle of universal
application. The texts were adopted with general approval,
and states of varying political and religious systems have
had a free choice as to whether to become a party to the
Covenants. If particular elements were regarded as
incompatible with a religious or political point, the correct
course of action was to enter a reservation as to those
elements, but this had not been done.
What are the Human Rights?
The answer depends on the approach on the nature and
sources of international law. If the source rights and
obligations are the various international instruments,
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whatever rights they contain and designate as human rights
are thereby human rights, at least for the ratifying parties.
They may in time be reflected in customary international
law, and thus become human rights more generally. Others
say that human rights are vehicle for expressing the
obligation and providing the detail about the way in which
the human right is to be guaranteed. It is an interaction of
demands by various actors, and the state practice in
relation thereto, which leads to the generation of norms
and the expectation of compliance in relation to them.
Civil and Political Rights
Human Rights was traditionally viewed as limited to the
field of civil and political rights. This view is supported by the
principle that rights suppose a correlative obligation on the
part of the state. All states are in a position to comply with
civil and political rights - ex. abstention from torture,
toleration of free speech, liberty of religion.
Economic, Social, and Cultural Rights
Claims to education, paid holidays, food and housing are
often not within the ability of the state to provide. This is
particularly true of poorer states. However, to say that such
inability would negate the view that such are human rights,
would be to define a right by reference to the ability of the
party upon whom the obligation lies to provide it
immediately. This echoes the aphorism that without a
remedy, there is no right. This approach looks at things from
the perspective of the state, rather than of the individual.
It is also claimed that such cannot be rights because “rights”
implies something in respect of which, legal claims can be
brought and economic and social rights are not justiciable.
However, the absence of a possibility of recourse to third-
party judicial procedures is certainly not the test of whether
the right exists or note. The existence of the right is tested
by reference to the sources of international law.
It is further suggested that these are not real rights for they
are imprecise as to content, and they are mostly incapable
of immediate delivery, and they must be recognized as mere
aspirations. The real difference is that the state’s duties in
respect of civil and political rights are covered in terms of
abstention from prohibited acts, whereas the economic and
social rights usually require specific action by the state.
In order to effectively guarantee rights, it is frequently
necessary for states to take positive measures. Problems
remain as to economic and social rights. There remains the
underlying problem that, even if known what has to be
provided, many states are not in a position to deliver the
right at the present.
The Committee on Human Rights, acting under the
International Covenant on Economic, Social, and Cultural
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Rights, has stated that these are present rights, not long-
term aspirations. States are under immediate obligation to
do what they can to provide these rights.
Collective Rights
There is no reason why an entitlement held by a group
cannot be termed a human right. However, not all collective
or third-generation rights are in fact rights. The right of
peoples to peace seems indeterminate. The holders of the
rights are identifiable, but it is not clear upon whom the
obligation lies and what duties are owed.
Sources of Rights
Existence of treaties may not be the only test as to whether
a right exists. Rights may exist in customary international
law. The claim that a right exists in customary law will need
to be established by reference to the normal criteria of that
source, including state practice, which may be expected to
be evidenced in resolutions and declarations of
international bodies.
Human Rights
The line between what human rights are and what are not
is more than academic. However the answer depends upon
one’s perception of what constitutes a human right. For
some it is all civil and political rights. For others, the
economic and social rights could be included on a basic
needs basis.
Identification and Articulation of the Right
Customary international law has had a role to play in this.
There is an interplay between the standard-setting UN
Declaration on HR and its acceptance in many national
constitutions and before may courts. The greatest push in
the formulation of human rights has been through the
treaty process. The international covenants on Civil and
Political Rights and on Economic, Social, and Cultural
Rights provide instruments that deal with comprehensive
range of rights on a universal basis. The idea is that rights
may be formulated on a basis that will allow command
confidence in the region, and that in turn will allow
effective enforcement measures. The universal and
regional instruments have been supplemented by
universal instruments directed towards the elaboration of
single rights.
UN Commission on Human Rights
The Commission is a body specifically mandated to deal
with human rights questions. It is political, in that those who
serve on it are representatives of states, but together with
the Subcommittee on Non-Discrimination and Minorities, it
has laid down some important methods and procedures. It
has also made significant contributions to fact finding
through the establishment of special rapporteurs.
Human Rights Committee
The HRC has considerable experience of state reporting and
of hearing cases. States are required to submit reports.
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The Committee has the right to call for further reports.
State parties attend an examination of their reports. The
examination proves to be a useful means of monitoring
compliance and encouraging progress. Committee
members will prove as to what is said in the reports, what is
missing, and what is known from other sources. At the end
of the examination, Committee members will offer
comments on how they find the state of human rights in the
country concerned.
The Committee has also considerable jurisprudence under
its case law. It has also recently introduced certain
procedures in order to better follow-up on compliance with
its case law.
B. International Criminal Law
LEGALITY OF THE THREAT OR USE OF
NUCLEAR WEAPONS (ADVISORY OPINION)
ICJ Reports 1996, p.226 (1996), supra.
(For an exhaustive discussion, refer to p. 12)
PROSECUTOR v. TADIĆ (IN THE APPEALS
CHAMBER)
ICTY Judgment of 15 July 1999
(*Note: this judgment was rendered four years after the
from the 1995 Prosecutor v. Tadid decision *supra., p. 17].)
Tadid was the first to be tried by the International Criminal
Tribunal for the Former Yugoslavia (ICTY). He was tried for
war crimes and was accused of committing atrocities at the
Serb-run Omarska concentration camp in Bosnia-
Herzegovina in 1992. Trial Chamber II of the ICTY denied
Appellant's motion challenging its jurisdiction. Appellant
had launched a three-pronged attack: (a) illegal foundation
of the International Tribunal; (b) wrongful primacy of the
International Tribunal over national courts; and (c) lack of
jurisdiction ratione materiae.
The ICTY was duly constituted under Chapter VII of the UN
Charter.
The important consideration in determining whether a
tribunal has been “established by law” is not whether it was
pre-established or established for a specific purpose or
situation. What is important is that it be set up by a
competent organ in keeping with the relevant legal
procedures, and should that it observes the requirements
of procedural fairness. The International Tribunal is
empowered to pronounce upon the plea challenging the
legality of the establishment of the International Tribunal.
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The establishment of the International Tribunal falls
squarely within the powers of the Security Council under
Chapter VII, Article 41 of the UN Charter. The International
Tribunal has been established in accordance with the rule
of law. The fair trial guarantees in Article 14 of the
International Covenant on Civil and Political Rights have
been adopted almost verbatim in Article 21 of the Statute.
Other fair trial guarantees appear in the Statute and the
Rules of Procedure and Evidence. The International Tribunal
has primacy over national courts. The International Tribunal
has subject-matter jurisdiction over the current case.
DIZON v. COMMANDING GENERAL
81 Phil. 286 (1948)
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
jurisdiction over certain offenses committed within and
outside the bases. Dizon allegedly committed an offense at
the main storage area at one of the bases. He was
prosecuted in and convicted by a General Court Martial
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.
Dizon filed a petition for habeas corpus, contending that the
General Court Martial had no jurisdiction over the alleged
offense, as it was committed not in a U.S. base, as defined
by the Agreement. Alternatively, even if the offense was
committed in a base, the Agreement is unconstitutional
because it deprives the Philippine courts of jurisdiction over
all offenses exclusively vested in them by the Constitution.
Art. XIII of the Agreement stipulates that the Philippines
consents that the United States shall have the right to
exercise jurisdiction over any offense committed by any
person within any base except where the offender and
offended parties are both Philippine citizens (not members
of the armed forces of the United States on active duty) or
the offense is against the security of the Philippines." The
case not falling under any of the two exceptions, the offense
falls under the jurisdiction of the U.S.
Generally accepted principles of international law are
adopted as part of Philippine law. A foreign army allowed to
march through a friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt from
the civil and criminal jurisdiction of the place. Likewise, if
bases may be validly granted to the U.S. under the
Constitution, there is no plausible reason while the lesser
attribute of the jurisdiction cannot be waived.
GUANTANAMO DETAINEES CASES
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Following the September 11 attacks, the assumption of the
Bush Administration was that international terrorism
presented a legal tabula rasa. IHL could not have been
applicable given that the opposite belligerent was not a
state, nor an armed group brandishing their weapons
publicly.
Its armed campaign against terrorism led to the arrest and
subsequent detention of hundreds of suspected Taliban and
al Qaeda elements. Their detention has been characterized
as violative of IHL, such that they have been subjected to
criminal treatment, and deprived of rights that should be
accorded to prisoners of war.
The following cases revolve around the question of the
eligibility of detainees to avail themselves of US habeas
corpus statutes in their attempt of seeking a review of their
status as detainees.
(These cases are chronologically arranged, and are meant to
be understood as a line of decisions following a singular
sequence of events. These represent a tit-for-tat interaction
between the US Government and the US Supreme Court
with respect to the rights of detainees.)
RASUL v. BUSH
542 U.S. 466 (2004)
Four individuals, British and Australian nationals, were
detained by the US military in Pakistan and Afghanistan as
a result of the War on Terror. The detainees were taken to
Guantanamo Bay military base in Cuba. Their families sued
the government in federal district court seeking a writ of
habeas corpus that would invalidate their detention. They
argued that the denial of the rights was tantamount to
violation of the Due Process Clause. The government argued
that the federal courts lacked jurisdiction to hear the matter
because the prisoners were not American citizens, and they
were not being held in the United States, but in Cuba, where
the U.S. did not maintain sovereignty.
The District Court has jurisdiction to hear petitioners’
habeas challenges, which authorizes district courts, within
their respective jurisdictions, to entertain habeas
applications by persons claiming to be held in custody in
violation of the laws of the United States. Such jurisdiction
extends to aliens held in a territory over which the United
States exercises plenary and exclusive jurisdiction, but not
“ultimate sovereignty.”
The presumption, that legislation is presumed not to have
extraterritorial application, is not applicable to habeas
statute with respect to persons detained within the US
territorial jurisdiction. By the express terms of its
agreements with Cuba, the United States exercises
complete jurisdiction and control over the Guantanamo
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Base, and may continue to do so permanently if it chooses.
Considering that §2241 draws no distinction between
Americans and aliens held in federal custody, there is little
reason to think that Congress intended the statute’s
geographical coverage to vary depending on the detainee’s
citizenship.
This ruling allowed lower courts to review the
designation of Guantanamo Bay prisoners as “enemy
combatants” and determine if they are entitled to
prisoner-of-war status.
Also, pending such review, they should be accorded
the rights of prisoners-of-war under the IHL.
The response of the Bush administration to this ruling
was to pass the Detainee Treatment Act of 2005 – a
law divesting federal courts of jurisdiction to hear
challenges by Guantanamo detainees based on their
treatment or living conditions, and eliminated federal
courts’ jurisdiction to consider habeas corpus claims
by aliens challenging their detention at Guantanamo.
CLASS NOTES
HAMDI v. RUMSFELD
542 U.S. 507 (2004)
Petitioner Hamdi, an American citizen whom the
Government has classified as an “enemy combatant”, for
allegedly taking up arms with the Taliban during the
conflict, was captured in Afghanistan and was detained.
Hamdi filed for a writ of habeas corpus. He asserted that he
went to Afghanistan to do “relief work” less than two
months before September 11 and could not have received
military training.
In an opinion backed by a four-justice plurality and partly
joined by two additional justices, Justice O'Connor wrote
that although Congress authorized Hamdi's detention
through its Authorization for use of Military Force (AUMF)
in response to the 9/11 attacks, Fifth Amendment due
process guarantees give a citizen held in the United States
as an enemy combatant the right to contest that detention
before a neutral decision-maker.
The plurality also rejected the government's argument that
the separation-of-powers prevents the judiciary from
hearing Hamdi's challenge.
HAMDAN v. RUMSFELD
548 U.S. 557 (2006)
In this ruling, the Court interpreted the provisions of
the Detainee Treatment Act of 2005 as being
inapplicable to habeas cases pending at the time the
DTA was enacted.
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Also, it ruled that military commissions set up by the
Bush administration to try detainees at Guantanamo
Bay lack "the power to proceed because its structures
and procedures violate both the Uniform Code of
Military Justice and the four Geneva Conventions
signed in 1949.”
As a result, Congress passed the Military Commissions
Act of 2006, which amended the federal habeas
statute to expressly eliminate court jurisdiction over
all pending and future causes of action, other than
pursuant to the limited review
permitted under the DTA.
CLASS NOTES
BOUMEDIENE v. BUSH
553 U.S. 723 (2008)
This is a submission made in a civilian court of the United
States on behalf of Lakhdar Boumediene, a naturalized
citizen of Bosnia and Herzegovina, held in military detention
by the United States at the Guantanamo Bay detention
camps in Cuba.
Petitioners designated as enemy combatants are entitled
to seek the writ of habeas corpus.
Court held that the prisoners had a right to habeas corpus
under the United States Constitution, and that the Military
Commissions Act of 2006 was an unconstitutional
suspension of that right
While the Detainee Treatment Act of 2005 provides
procedures for review of the detainees’ status, these
procedures are not an adequate and effective substitute for
habeas corpus. Therefore Section 7 of the Military
Commissions Act of 2006, operates as an unconstitutional
suspension of the writ.
The immediate impact of the Boumediene decision is
that detainees at Guantanamo may petition a federal
district court for habeas review of the circumstances
of their detention.
CLASS NOTES
C. Foreign Investments and
Natural Resources
HIGGINS, CHAPTER 8:
NATURAL RESOURCES AND INTERNATIONAL
NORMS
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The approach to studying the international law of natural
resources is not singular. It is most conveniently done based
on specific resources or categories of natural resources
being analyzed. This is because not only the answers, but
also the questions that is necessary to ask, will depend upon
the specific resource being studied. In this chapter, three
examples were taken to illustrate this point: the mineral
resources of the deep sea-bed; water, including water as it
is carried along by the great international rivers; and
petroleum found on the shore, beneath a state’s territorial
waters, or on its continental shelf.
The Resources of the Deep Sea-Bed
From the earliest days of international law there was
developed the idea of the freedom of the high seas. This
was first codified in the UN Convention on the High Seas of
1958. Freedom of the high seas is firmly established in
customary international law and this also entailed a
freedom to remove the resources that were found in those
waters. Indeed, fishing on the high seas required no one’s
permission because no one had title over the high seas
(treated as res nullius). However, the matter became
complicated upon the discovery of other resources (mineral
resources, manganese, cobalt, nickel, etc.) beneath the
waters. The question arose as to how these newly
discovered resources were to be exploited.
In response, the Government of Malta introduced to the UN
in 1967 the important concept of deep sea-bed resources as
being ‘common heritage of mankind’. This was different
from the res nullius treatment of fish in the high seas in that
a resource termed a ‘common heritage’ in principle could be
exploited by anyone – but only with the permission of the
world community an upon such conditions as the
institutions representing that community would lay down.
This difference in regime in treating different resources is
compelled by many economic and political considerations.
While the 1982 UNCLOS was not yet in force at the time this
chapter was written, the author already noted that the
notion of ‘common heritage of mankind’ was by that time
an emerging norm due to repeated invocations before
various organs, repetition in the texts of various
instruments, and analysis by scholarly writing. However,
while the UNCLOS remained unenforced, various questions
were still raised as to how deep sea-bed
resources were to be exploited. One such question is WON
it was really unlawful under general international law for a
state to unilaterally attempt to exploit deep sea- bed
resources. If one applied the test offered by Professor
Dupuy in the BP-Texaco Case, where the UN resolutions had
to have the support of the major actors in the practice in
question (i.e. the capital-investing countries), the case
would not seem to be made for the ‘common heritage of
mankind’ to be regarded as a compulsory norm. However,
according to the author, the BP-Texaco Case is not squarely
at point as the support for the common-heritage
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approach was evidenced by the text of a negotiated treaty
which was supported by a great majority of UN members
many of which are of industrialized governments. Still, the
issues revolving the ‘common-heritage approach’ are still
far from being resolved. These key issues largely concern
questions of jurisdiction and law development.
Water as a Resource
International rivers carry water – the most important of all
resources, providing the basis for life and sustenance, as
well as sources of energy – through the territories of two or
more states. Essential as the aforementioned resource is, it
has also been the topic of many controversies especially
relating to who exercises control over rivers that pass
through several state jurisdictions.
While the issues surrounding control over international
rivers have remained complicated, certain key principles
have emerged:
 A state does indeed have sovereignty over the
water resource in its own territory – but within the
limits of what is permitted by international law.
 International law requires that, in the exercise of
sovereignty, regard must be had to legitimate
interests of other users of the water,
 Legitimate interest is defined as an equitable
share in the beneficial use of the resource.
 In identifying ‘beneficial use’ reference may be
had on various international instruments which
will lead to the following questions that must be
answered:
o What is the purpose of the use? Is it to
provide drinking water; or irrigation; or
an energy source; or is it recreational?
o Is the particular use to be provided for
in a wasteful or conserving way? Has
there been past waste of this precious
resource?
o Are there alternative water resources
elsewhere in the country, or is said
country solely or primarily dependent
on the proposed use of the particular
stretch of the international river.
Accordingly, the answers to all the aforementioned
questions will have to be compared, in a given case, with
the same questions asked of a competing user of the
resource.
Petroleum Deposits
The context of international law in relation to petroleum is
also different. Although there may well be petroleum
deposits beneath the deep sea-bed, it has so far proved
neither necessary nor attractive to seek to recover these.
Virtually all known commercial petroleum deposits are
either on-shore or under territorial waters (and clearly
within state territory), or in the continental shelf (asserted
jurisdiction for the purpose of resources exploitation is
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rapidly becoming a permissive rule under customary
international law and adopted in the 1958 Geneva
Convention on the Continental Shelf).
It is important to note that petroleum reserves beneath the
continental shelf are different from those beneath a desert
in the interior of a state. While there is clear sovereignty
over all of one’s land mass, the coastal state has sovereign
jurisdiction over the continental shelf only for purposes of
the exploration and exploitation of resources. In short, it
merely exercises functional sovereignty as can be gleaned
from the Continental Shelf Conventions of 1958 and 1982.
The legal implications of this distinction are as follows:
 States have had to take care that any legislation
they pass which purports to have an application
on the shelf (criminal legislation, civil legislation,
and tax legislation) is limited to matters relating
to the exploration and exploitation of shelf
resources.
 While on-shore mineral resources have been
vested in the state (making it clear that it owns
them), there is no right of ownership in the
resources in situ in the continental shelf. The state
may grant licenses for the purpose of exploring
and exploiting resources in the continental shelf,
but it does not itself own the petroleum. Since the
government that grants the licenses do not have
title to the petroleum, it follows that the license
grantee also does not have title. It gets, instead,
an entitlement to explore and exploit (which
action would otherwise be illegal) and to reduce
into possession. It is the actual reduction to
possession that gives the licensee title.
There are also problems that have emerged in relation to
state intervention. From the perspective of the foreign
investor, it can be summarized as follows:
 How can he be sure that, given the vast
investment he will be required to make, he will be
allowed to reap the benefits of his investment
and work effort, and that the rewards will not be
taken from his just as his fulfillment of the
contract terms begins to bear fruit?
From the perspective of the host government, the problem
can be summarized as follows:
 How can any arrangement entered into with a
foreign oil company in respect of what is, all said
and done, one’s own natural resource, remain
flexible enough so that one is not locked into
terms that over a long period turn out to bear
little relationship to changing market conditions?
 How can one ensure that, notwithstanding
contractual arrangements with the foreign
investor, concerns for health, safety, regulatory
standards, etc. of the government are met?
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However, the author once again points out that there is no
easy way to resolve these questions. As a preliminary
matter, it is important first to determine WON international
law or national law will be applicable in answering these
questions. A survey of various arbitral cases while varied in
results, provide the following views: whether there is only a
domestic-law-proper law clause; or whether there is a
‘mixed’ international law and domestic law clause,
international arbitrators are very likely to find international
law relevant.
If international law will be applied, several considerations
should be emphasized: first, states have a very special
position in regard to their own resources; second,
nationalizations (of exploitation and exploration etc.) do
require compensation, and will only be lawful if they are not
discriminatory and serve a public purpose; and third, the
concept of permanent sovereignty over natural resources
does not leave a state free to ignore contracts it has
voluntarily entered into.
KARICHI REVIEWER (2010):
BASIC FOREIGN INVESTMENTS LAW
(Note: This section has been lifted in toto from the Karichi
Reviewer [2010] since the subject matter of this subsection
was no longer discussed in class. – Ed.)
Expropriation Law
As one of the most dynamic fields of international
commercial law today, foreign investment law has
undergone a rapid evolution in state practice within the
recent past. There are many centers of controversy within
the larger field of foreign investment law, but arguably the
most contentious issue remains that of expropriation. The
context of international expropriation rules is: the home
state (where the investment is located) expropriates the
rights of ownership of the investor state (who introduced
the investment and to whom such investment belongs)
who, as an alien, may rely on international law for the
standard of treatment that should be accorded to it. We
must remember that expropriation, although recognized as
one of the inherent attributes of sovereignty, assumes an
international and therefore more complex dimension when
exercised against foreign property because (1) the investor
state, being a subject of a foreign state, cannot be deemed
to have been completely subsumed under the authority and
sovereignty of the home state by virtue merely of their
contractual relations (2) the relationship of home and
investor states are clearly defined under an investment
contract which, according to its verbiage, may or may not
make reference to international law in cases of conflict, in
the former case the ideally absolute exercise of the home
state’s sovereignty becomes limited to a certain extent by
the standards of international law. In navigating through
the turbulent waters of expropriation rules, one
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may be guided by the following principles which, to date,
may be said to govern foreign investment law:
1. The norm remains to be the harmonization of all sources
of legal obligations. One party to an investment contract
cannot therefore renege on the duties it voluntarily
assumed on the pretext of complying with a duty or
exercising a right if the source of such duty or right comes
into conflict with the obligations laid down in the
investment contract and/ or customary law. The home state
is therefore not allowed to unilaterally revoke investment
agreements on the basis of its absolute sovereignty over its
natural resources, because such exercise of sovereignty
must as much as possible be consonant with the duty to
comply with obligations validly entered into.
2. If harmonization is not possible, the norm remains to be
the expropriability of every property. Although investment
contracts must be complied with in good faith, all states
recognize the validity of the exercise of a home state of its
prerogative to expropriate. The home state can therefore
take foreign property, and there are no established absolute
exceptions to this rule (meaning there are no cases wherein
the home state can be said to be absolutely barred or
precluded from expropriating). The only difference lies in
the legal consequence of every act of taking, which would
depend on whether the taking was lawful or not, or whether
the parties expressly provided in the investment contract
for the processes to be complied with during such
expropriatory acts.
3. For every act of expropriation, the norm remains to be
the compensability of every act of taking. If the home state
takes, it is bound to pay. This is the prevailing rule in current
state practice and opinion juris. The home state may
exercise its prerogative to expropriate, but it cannot do so
without compensating the investor state or at least
reinstating the status quo ante (meaning the considerations
paid for and benefits received under the contract would be
restored to the respective parties). The duty to pay
compensation may take various forms. It may be (1) a
necessary legal consequence of the expropriatory act, as
provided expressly in the investment contract (2) a
necessary legal consequence of the expropriatory act, in
accordance with customary law (3) an alternative form of
extinguishment of a legal obligation (instead of performing
the obligations under the contract, the home state chooses
to reinstate the status quo ante by giving back, as
compensation, the consideration for the contract plus other
incidental adjustments), or (4) in the form of punitive
damages, where the taking was adjudged to be unlawful, in
which case the contract may be enforced or, if performance
is already impossible, the home state may be required to
pay compensation in an amount that would approximate
the value of the property taken and the damage caused by
the unlawful taking. The fact that compensation must be
paid is generally accepted as a
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norm; the only point of contention is the QUANTUM of such
compensation. How much should be paid is often a subject
of debate and there is as yet no fixed rule in determining
the value of compensation that must be paid. In practice,
however, what the home state pays the investor would
usually be a matter of negotiation and conditioned upon the
financial circumstances of the home state. There are some
cases where the norm of compensability is believed to be
inapplicable, although such exemptions are found in the
writings of publicists and no authoritative decision has yet
been rendered recognizing these exemptions as such. The
examples are the taxing power of the state, regulatory
takings, and police powers.
4. In any case, the norm remains to be enforceability of
every international legal obligation, regardless of the
source. The investment contract may be primarily the law
between the parties. However, by virtue of the fact that
investment agreements are often concluded between
states or between private entities pursuant to a trade
agreement concluded by their respective states,
international legal obligations would inevitably come into
play. As such, from the time the investor state introduces
the foreign property into the home state’s territory, both
would have to be guided by the obligations which both are
bound to under international law. As a consequence, the
home state cannot be permitted to undertake an
expropriation in such manner as to be violative of other
international legal obligations like (1) the duty to observe
pacta sunt servanda under customary law (2) the duty to
accord foreign investors with the international minimum
standard of treatment under customary law(3) the duty to
expropriate for a public purpose, on a non-discriminatory
basis, and with4payment of just compensation under
customary law, or (4) the duty to observe elementary rules
of contractual relations as embodied in general principles of
law relating to contracts.
In dealing with the issue of expropriation, one must be
guided by basic UN texts touching on expropriation:
ARTICLE 4
Nationalization, expropriation or requisitioning shall
be based on grounds or reasons of public utility,
security or the national interest which are recognized
as overriding purely individual or private interests,
both domestic and foreign. In such cases the owner
shall be paid appropriate compensation, in accordance
with the rules in force in the State taking such
measures in the exercise of its sovereignty and in
accordance with international law.
ARTICLE 8
Foreign investment agreements freely entered into by
or between sovereign States shall be observed in good
faith; States and international organizations shall
strictly and conscientiously respect the
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sovereignty of peoples and nations over their natural
wealth and resources in accordance with the Charter
and the principles set forth in the present resolution.
---United Nations Resolution on Permanent Sovereignty
over Natural Resources Adopted by the United Nations
General Assembly, 14 December 1962
ARTICLE 2, Par. 2, Subpar. C
To nationalize, expropriate or transfer ownership of
foreign property, in which case appropriate
compensation should be paid by the State adopting
such measures, taking into account its relevant laws
and regulations and all circumstances that the State
considers pertinent. In any case where the question of
compensation gives rise to a controversy, it shall be
settled under the domestic law of the nationalizing
State and by its tribunals, unless it is freely and
mutually agreed by all States concerned that other
peaceful means be sought on the basis of the sovereign
equality of States and in accordance with the principle
of free choice of means.
---Charter of Economic Rights and Duties of States GA Res.
3281(xxix), UN GAOR, 29th Sess., Supp. No. 31 (1974) 50
As Harris notes, the Charter has not attained the status of
custom because developed states have effectively mounted
a resistance to the clause which does not require a public
purpose precondition to expropriation. The same is true
with the Declaration on the Establishment of the New
International Economic Order, another UN GA Resolution
backed by developing countries, which was overridden,
according to Walde, by the historical inclination towards
market liberalism. The formula of developing states,
according to him, was simply incompatible with the
tendency towards promotion of foreign investment, the
latter requiring adequate and stable protections as an
inducement to risk-averse foreign investors. The following
survey of case law on expropriation represents the views
taken by international tribunals in interpreting the different
operative terms of the aforequoted texts.
---
TEXACO v. LIBYA
53 ILR 389 (1978), supra.
In 1973 and 1974, the Libyan government pursuant to
several legislations decided to nationalize the properties of
two American companies which were granted concession
contracts to exploit and extract oil. As a result, the
properties, rights, and assets of the oil companies were
appropriated by the Libyan Government and were to be
transferred to the Libyan National Oil Company. The two oil
companies, Topco and Calasiatic, wanted to submit the
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matter to international arbitration which the Libyan
Government opposed. However, the ICJ, upon the request of
the oil companies, appointed a sole arbitrator to resolve the
matter. The contention centers on the following clauses in
the concession contracts:
(1) STABILIZATION CLAUSE – provides that the
contractual rights expressly created by the concession
shall not be altered except by mutual consent of the
parties, and
(2 GOVERNING LAW CLAUSE - provides that the
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
the absence of such common principles, then by and in
accordance with the general principles of law including
those which have been applied by international
tribunals.
In sum, the appointed sole arbitrator Dupuy had to
determine whether Libya failed to perform its obligations
under the concession contracts entered into with the oil
companies by pursuing its nationalization measures and
which law to apply in determining the various rights and
obligations of the parties.
Libya failed to perform its obligations under the Deeds of
Concession by adopting nationalization measures.
The arbitrator first determined that the standards of
international law applied in this case. He found that that the
very fact that there was to be international arbitration
‘internationalized’ the contract, making it inevitable that
international law would have a role to play. This also meant
that the case would be taken out of the ambit of domestic
law. Dupuy reasoned that this had to be the case because
a foreign investor would be nervous to put himself solely at
the mercy of a domestic law, which definitionally a
government would be able to change; and that sole reliance
on domestic law was avoided by ensuring that the case
went to international arbitration. Internationalization of
contracts therefore results in the protection of investors
against the risks of contractual modification or abrogation
resulting from changes in municipal laws or governmental
measures.
Dupuy then ruled that by unilaterally nationalizing the
assets of the oil companies, Libya has breached its
obligations under the concession contracts which logically
gave rise to a cause of action in favor of the oil companies.
According to him, although the right of the State to
nationalize is recognized as an expression of the State’s
sovereignty, the same is not an absolute recognition. There
are limits to such sovereignty, such as when a contract is
internationalized which meant that the agreement will also
carry international consequences. The arbitrator found that
there is no established state practice of disregarding
international commitments in favor of nationalization.
Thus, if a state bound itself to a contract
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which is international in character and burdened with
stabilization clauses, such state is deemed to have waived
its prerogative to expropriate contrary to the terms of such
contract. In this case, since the expropriation was deemed
to have been contrary to the stabilization clause of an
internationalized contract, it was set aside and the oil
companies were awarded a remedy of restituto in
interregnum (restoration to the original state) which called
for a performance of the terms of the deeds of concession
(to allow the oil companies to extract oil, etc.).
BRITISH PETROLEUM v. LIBYA
53 ILR 297 (1978), supra.
British Petroleum Exploration had a contract with the Libyan
Government to extract, process and export oil in an area
called Concession 65 in the heart of the Sarir desert.
However, in 1971, Libya passed the BP Nationalization Law
which restored ownership of all properties, rights, assets
and shares to the state and transferred them to the Arabian
Gulf Exploration Company. Accordingly, the nationalization
was undertaken by Libya as a reaction to the British
Government’s failure to react to Iran’s occupation of three
islands in the Gulf which were under British protection. The
Libyan government apparently blamed Britain for the loss of
the islands.
Under the nationalization law passed by Libya, the State
should pay compensation to BP Exploration which was to be
determined by a committee established by the Minister of
Petroleum. However, due to delays in the determination of
the matter of compensation, the nationalization law already
took effect without the issue being resolved. As a result, BP
Exploration’s were brought to a complete halt and their staff
were immediately excluded from the premises as Arabian
Gulf Exploration Company took over Concession 65.
Similar to the Texaco case, the concession contract in this
case also contained a governing law clause which says that
Libyan law would be applicable only to the extent that it
coincides with international law.
The arbitrator in this case had to determine:
1. WON the injured party to a concession agreement
has the right to deem the contract as valid and
enforceable even after the alleged wrongful
exploration, and
2. WON the injured party may claim reparations in
the form of specific performance or restitutio in
interregnum.
Libya breached its obligation to BP Exploration by
expropriating the latter’s properties. However, BP
Exploration was entitled only to damages and to specific
performance and restitutio in interregnum.
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According to the arbitrator, as a general rule under
international law, the wrongful breach of contract would
entitle the injured party to terminate the contract at its
option. This means that until and unless such injured party
elects to do so, the contract should be deemed as valid and
binding and it can compel the other party to continue
performing its obligations under it. However, this is not
applicable, as in this case, where the other (expropriating
party) is a sovereign state. Thus, the right to deem the
contract as continuing to be binding and the consequent
right to demand restitutio in interegnum is not available to
BP exploration under international law. This recognizes the
almost plenary power of the home state to expropriate and
that the home state cannot be precluded under
international law to expropriate when it wishes to. Thus, the
home state may expropriate when it desires to, and even if
it does so in breach of contract, the home state cannot be
compelled to reinstate the operability of the contract
(restitutio in interegnum), at most, it can only be compelled
to pay damages. In the end, the arbitrator did indeed order
the Libyan government to pay damages.
Note: The circumstances under which the expropriation
took place in this case constitute one of the first instances
where an arbitral court classified state actions as (1) in
breach of obligations, (2) discriminatory, and (3)
confiscatory. This is because the expropriation was
apparently motivated by extraneous political reasons and
BP Exploration’s Concession 65 was singled out. The
wrongfulness of the expropriatory act is important to
establish because this would determine the quantum of
compensation that would be awarded to the injured party.
SAUDI ARABIA v. ARABIAN AMERICAN OIL
COMPANY (ARAMCO)
27 ILR 117, supra.
This case involved the arbitration relating to the
interpretation of a concession agreement made in 1933
between the Government of the State of Saudi Arabia and
the Arabian American Oil Company (ARAMCO). The
controversy arose when the Government of Saudi Arabia
concluded another concession agreement with Mr. Onassis
and his company Saudi Arabian Maritime Tankers Ltd. in
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
wherein it was also given the exclusive right to transport oil
which it had extracted from its concession in Saudi Arabia.
ARAMCO was justified in resisting any infringement of the
rights granted to it under the concession as the agreement
revealed its exclusive right to transport oil.
In interpreting the concession agreement, the arbitrator did
not rely on Saudi Arabian law alone. Accordingly, the
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interpretation of juridical acts is not made according to the
same methods as the interpretation of statutes, for it does
not aim merely at specifying the meaning of general and
abstract principles laid down by the legislator, but
ascertaining what was the common intention of the parties
at the time the agreement was signed. The tribunal
rejected Saudi Arabia’s claim that ARAMCO’s right to
transport only included that from the site of extraction to
the refinery. According to it, the parties cannot have
intended such a limited meaning of the word ‘transport’.
One of the modalities of oil development consists in sending
crude oil abroad, to consuming countries, where it is refined
outside of Saudi Arabia; in such a case, the term ‘transport’
necessarily implies sending oil abroad, wither by land or by
sea. The terms in the agreement must be understood in
their plain, ordinary, and usual sense, which is the sense
accepted by the oil industry. The tribunal further explained
that this right to transport extended to maritime
transportation.
The arbitral tribunal also rejected Saudi Arabia’s contention
that for the sole reason that a State is a party to a contract
with a private person, the rights of the latter must be
interpreted restrictively. The rights of the parties must be
evaluated in a spirit of complete equality. This is because
the rights of one party are increased as a result of restrictive
interpretation to the extent that the rights of the other
party are restricted. It is only when the exact meaning of
such a contract is impossible to determine that the
interpretation most favorable to the freedom of the State
may be adopted. Restrictive interpretation may only 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
clauses of a contract. In relation to the conflict of rights
between ARAMCO and Mr. Onassis, the tribunal said that
the principle of respect for acquired rights is one of the
fundamental principles both of public international law and
of the municipal law of most civilized States. Valid contracts
bind both parties and must be performed, for rights
resulting from agreements concluded for due consideration
are absolutely secure; when one party has granted certain
rights to the other contracting party, it can no longer
dispose of the same rights, totally or partially, in favor of
another party.
THE FACTORY AT CHORZOW (GERMANY v.
POLAND)
1928 PCIJ (ser. A) No. 17 (1928)
This was a suit for reparation against Poland by Germany
instituted before the PCIJ for Poland’s taking possession of a
nitrate factory in Chorzow, Upper Silesia which resulted in
damage to two German-controlled companies. The taking
was done in violation of Article 6 of the Geneva Convention
which was a convention entered into by the two states.
Germany brought action in behalf of the
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companies against Poland for the taking of the companies
in violation of the Geneva Conventions.
Poland’s acts were made in violation of a treaty (Geneva
Convention between the parties) and were therefore
wrongful under international law entitling Germany to
compensation.
In this case, it was held that the reparation of a wrong may
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 in
this case). Reparation is the indispensible complement of a
failure to apply a convention. Also, the taking of property
requires compensation. The ruling of the court in this case
also provided for the quantum of compensation required to
be paid in cases of wrongful takings by the home state, also
known as the CHORZOW STANDARD in international law.
The Chorzow Standard provides that the essential principle
contained in the actual notion of an illegal act is that
reparation must, as far as possible, wipe- out all the
consequences of the illegal act and re-establish the situation
which would, in all probability, have existed if that act had
not been committed.
The principles which should serve to determine the amount
of compensation due for an act contrary to international
law are as follows:
1. Restitution in kind, or if this is not possible,
payment of a sum corresponding to the value
which a restitution in kind would bear;
2. Award of damages for loss sustained which would
not be covered by restitution in kind or payment
in place of it.
General principle of law: reparation for the taking of
property requires compensation. Reparation is due
when there is a breach of obligation.
Where an expropriation is legal, the amount of the
reparation is the logistical value of the property taken
at the time of the expropriation. However, where
there is an unlawful taking, the amount of reparation
includes the intangible assets (loss of profits). (Karichi
Notes, citing Prof. Roque, 2010)
“The Chorzow Standard is often invoked by investor
states to justify their claims of compensation because
it is sufficiently vague as to evade exact quantification
but sufficiently liberal and inclined towards investors’
interests as to be adequately justificatory of claims of
full compensation (“full” meaning nearly everything -
the value of the property, forgone profits, future
profits, incidental expenses, committed profits, and
damages). However, the Chorzow Standard does
contemplate restitutio in interegnum as a remedy for
unlawful expropriations, contrary to subsequent
arbitral decisions precluding the propriety of any such
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remedial award, as in the BP Exploration v. Libya case.
The continuing validity of this assertion is still a matter
of debate, and of course, although investor states do
settle in time to mere payment of compensation, it
never hurts to have the Chorzow Standard as the
starting point of every negotiation as far as the
investor state is concerned.” (Karichi Notes,
2010)
CLASS NOTES
LIAMCO v. LIBYAN ARAB REPUBLIC
62 ILR 140
In 1973 and 1974, Libya nationalized both LIAMCO’s rights
under their concession agreements and the latter’s oil
drilling equipment. Due to unsuccessful negotiations
regarding compensation, LIAMCO rejected the terms of the
nationalization and initiated proceedings under the
arbitration clause. The sole arbitrator Mahmassani was
appointed and he was tasked to determine whether Libya
was in breach of its obligation by pursuing its
nationalization program and consequently, damages etc.
were due to LIAMCO.
Libya acted lawfully acted when it nationalized LIAMCO’s
concession rights before the expiration of the term.
However, compensation must be duly paid to LIAMCO.
The arbitrator made it clear that the concessions were both
contractual obligations and incorporeal property. On the
one hand, sanctity of contract is an integral part both of
international law and Islamic law. On the other hand, the
dominant trend of international opinion allowed states
substantial rights over their natural resources.
Unlike in the cases above (Texaco v. Libya, etc.),
Mahmassani took separately the remedies for premature
termination of contract and for the taking of property by
nationalization. In fully accepting that the nationalization
required compensation, he readily found that the damages
should include, as a minimum, the damnum emergens,
which he described as ‘the value of the nationalized
corporeal property including all assets, installations, and
various expenses incurred.
As to the more controversial question of whether the
compensation due should also include lucrum cessans or
the loss of profits, he felt that the answer would depend on
whether the taking was lawful or not, and that lucrum
cessans might be payable if the nationalization was
unlawful. However, since the evolution of international law
meant that states had the sovereign right to nationalize
their natural resources, he concluded that it is lawful for
Libya to nationalize concession rights before the expiry of
the concession term, provided that the measure be not
discriminatory nor in breach of treaty, and provided that
compensation be duly paid.
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As to the question of lucrum cessans for a lawful
nationalization, Mahmassani found the primary applicable
law (international law or Libyan law) unclear on the point,
and resorted to the formula of ‘equitable compensation’ by
reference to which claims of lucrum cessans were in effect
excluded.
STARETT HOUSING CORPORATION v. IRAN
4 Iran-US Claims Report (1983), supra.
In 1974, Starett, operating through its Iranian subsidiary
company Shah Goli, entered into an agreement with the
Bank of Omran (Iranian development bank) to buy land in
Tehran and build houses upon it. The project initially
proceeded on schedule, however, due to 1979 revolution in
the area, Shah Goli’s American and other foreign personnel
withdrew from the project. This event, coupled with general
revolutionary disruption and government intervention (i.e.
making Shah Goli forgo contractual payments and freezing
of its bank accounts), caused the project to fall behind
schedule and Shah Goli to be in financial difficulties. In
January 1980, Iran’s Ministry of Housing placed Shah Goli
under the control of a temporary manager. Starett filed a
suit for compensation, alleging that the acts of the Iranian
Government constitute an expropriation of its property
rights under the contract.
The acts of the Iranian government constituted
expropriation despite the fact that no law was passed to
that effect and that no physical taking of property took
place.
According to this landmark ruling in foreign investment law,
the concept of ‘indirect expropriation’ should be
recognized. This is synonymous with ‘virtual
expropriation’, ‘effective expropriation’, or ‘act tantamount
or equivalent to expropriation’. The tribunal recognized in
this case that while strictly speaking, no expropriation took
place because no law was passed by Iran expropriating the
assets of Starett (unlike in the cases of Texaco, BP
Exploration, and LIAMCO). However, it ruled that it is
recognized in international law that measures taken by a
State can interfere with property rights to such an extent
that these rights are rendered so useless that they must be
deemed to have been expropriated, even though a the State
does not purport to have expropriated them and the legal
title to the property formally remains with the original
owner.
In this case, the interference of the Iranian government led
to the bankruptcy and placement under receivership of
Shah Goli. By doing so, Iran has effectively taken the
property rights of Starett in the housing project and
deprived it of its reasonable expectations as an investor. To
reiterate, expropriation does not need a law to be deemed
as such. Any act that would result in the
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deprivation of ownership rights and therefore effect an
indirect or virtual taking would be classified as
expropriation nonetheless.
The tribunal in this case also departed from the view
established in the LIAMCO case when it held that
contractual rights are deemed property for purposes of
expropriation law. According to the ruling in this case,
measures of expropriation or taking, primarily aimed at
physical property, have been deemed to comprise also
rights of a contractual nature closely related to the physical
property. Such contractual rights include intangible assets
as management rights, legitimate investment-backed
expectations in the completion of the venture, and right to
proceeds. In sum, expropriation may be direct or indirect,
and that it may be undertaken through the literal taking of
a physical asset, or through a deprivation of ownership
rights closely related to a physical property.
KUWAIT v. AMINOIL
66 ILR 518.
Aminoil is an American oil company which was granted a
concession by Kuwait. However, Kuwait passed a Decree
which terminated the agreement with Aminoil before its
expiry and transferred the concession to the government
itself.
AMINOIL: It questions the legality of the termination
relying on the stabilization clauses of the
contract which prohibit a nationalization of
the oil venture:
 Article 17: “no alternation shall be
made in terms of this Agreement
except in the event of the Sheikh and
the Company jointly agreeing that it is
desirable in the interest of both parties
to make certain alterations, deletions
or additions.
 Article 11 (B): “save as aforestated,
this Agreement shall not be
terminated before the expiration of
the period specified…except by
surrender as provided in Article 12 or
if the Company shall be in default
under the arbitration provisions of
Article 18.
Kuwait:  The State invoked the principle of
sovereignty over natural resources, which
according to it is an imperative rule of jus
cogens. This principle prohibits States
from giving guarantees against the
exercise of the public authority over
natural resources.
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Kuwait’s expropriation was not unlawful. However,
Aminoil must be compensated by Kuwait.
Unlike arbitrator Dupuy’s ruling in the Texaco v. Libya case,
the arbitral court here expressly reiterated that there is no
rule in international law that absolutely precludes a home
state from expropriating. The only limitations (and not
absolute exceptions) to this rule are three-fold:
a. It is for a serious undertaking;
b. It is expressly stipulated for;
c. It covers a limited period.
In short, a home state may validly waive its expropriatory
prerogative only for a limited period of time such that it
cannot be perpetual, only upon serious undertakings (other
investments of a smaller scale may be expropriated more
expeditiously), and in any case such limitations must be
embodied in a contract. The expropriatory power of the
state is the general rule, and therefore any limitations to its
exercise cannot be implied.
In considering legal consequences of an expropriatory act,
consideration must be given to whether the investor has
been adequately protected by express provisions of the
contract relating to compensation. The compensability of
an expropriatory act strongly militates against the
presumption that the home state can take property without
necessary legal consequences in the exercise of its
sovereignty. In interpreting Articles 17 and 11 (B) of the
contract, the tribunal said that these do not absolutely
forbid nationalization because it impliedly requires that
nationalization shall not have a confiscatory character.
The arbitral tribunal also credited the fact that the act of
Kuwait was in pursuance of a legitimate state policy. It
considered the undertaking (the extraction of oil) of Kuwait
directed to narrow patrimonial ends in the beginning as it
was a financial venture entered into by the government for
its purposes. However later, it became an essential
instrument in the economic and social progress of the state
as evidenced by the progressive development of Kuwaiti
law with a view of taking an active role in the development
of its own resources within its territory.
As such, the expropriation was deemed not unlawful and
the tribunal merely awarded Aminoil compensation.
SAPPHIRE INTERNATIONAL PETROLEUMS LTD.
v. NATIONAL IRANIAN OIL CO.
35 ILR 136 (1967).
The National Iranian Oil Company (NIOC) and Sapphire
Petroleums Ltd (Canadian Company), entered into a
contract to expand the production and exportation of
Iranian oil. The parties set up the Iranian Canada Oil
Company (IRCAN), a “joint stock company and non-profit
corporation”, to carry out the operations under the contract
on behalf of the two parties. Their contract
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distinguished 2 periods: the PROSPECTING PERIOD wherein
Sapphire would act through IRCAN in which case it would
be reimbursed for its expenses and the WORKING,
EXTRACTION and SALE OF THE OIL period wherein IRCAN
would act for both parties.
After the first period, NIOC refused to reimburse Sapphire
and as a consequence, the latter refused to proceed to the
second period of the contract. Sapphire wrote the Shah of
Iran requesting for a refund of their losses however the
Prime Minister of Iran replied that the former had not
fulfilled its obligation under the contract and as a result,
NIOC was entitled to refuse the refund.
Sapphire initiated arbitration proceedings requesting the
following as damages:
1. Compensation for expenses incurred before the
contract plus interest;
2. Compensation for expenses incurred after the
contract plus interest;
3. Loss of profit;
4. Refund of the $350,000 indemnity.
Federal Judge Pierre Cavin of Lausanne was appointed as
sole arbitrator.
NIOC breached its obligations under its contract with
Sapphire entitling the latter to damages.
The arbitrator first determined that general principles of
law were applicable in this case. The choice of applicable law
was not explicit in the contract, but the characteristics of
the contract were such that they excluded the application
of the traditional rules of private international law and
reduced the likelihood that Iranian law would be applied to
the interpretation and performance of the contract. Also,
the contract contained an arbitral clause which entrusted
the task of arbitrating any possible dispute to an arbitrator
chosen by the President of the Supreme Court of
Switzerland, Denmark, Sweden or Brazil from which it could
be drawn specifically that the clause rejected the exclusive
application of Iranian law.
According to the arbitrator, it was NIOC and not Sapphire
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 one party
to a synallagmatic contract to perform its obligations
releases the other party from its obligations and gives rise
to a right to pecuniary compensation in the form of
damages. This rule could not be set aside even in the case
where the contract contained elements which had their
origin in administrative law (public law). Accordingly, the
deliberate failure of NIOC to carry out its obligations in
breach of contract, and having particular regard to the
circumstances in which the refusal was made, justified
Sapphire’s non-performance of the contract.
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As to the award, the arbitrator used the principle of ex
aequo et bono or by considering all circumstances to
quantify the compensation for loss of profit. He applied the
general rule that the object of damages is to place the party
to whom they are awarded in the same pecuniary position
that they would have been in if the contract had been
performed in the manner provided for by the parties at the
time of its conclusion. He observed that the rule is simply a
direct deduction from the principle pacta sunt servanda,
since its only effect is to substitute a pecuniary obligation
for the obligation which was promised but not performed.
This compensation includes the loss suffered (damnum
emergens), for example the expenses incurred in
performing the contract, and the profit lost (lucrum
cessans), for example the net profit which the contract
would have produced.
On the issue of determining compensation for loss of
profits, arbitrator Cavin established 2 steps: determination
whether compensation for the loss of opportunity is
recognized in law; and if so recognized, determination of
the amount of compensation to be awarded. Exact damage
is not necessary to be proven in order to obtain an award
for damages. In fact, the behaviour of the author of the
damage is enough for the judge to be able to admit with
sufficient probability the existence and extent of the
damage. In this case, the arbitrator held that Sapphire had
satisfied the legal requirement of proof by showing a
sufficient probability of the success of the prospecting
undertaken if they had completed the process as testified
by Sapphire’s expert witness notwithstanding NIOC’s claims
that they did not think that there were serious chances of
discovering oil.
WHEN LAWFUL
STARETT HOUSING CORPORATION v. IRAN
4 Iran-US Claims Report (1983), supra.
(For facts, refer to p. 152)
The Court ruled that there was “constructive expropriation”
or indirect expropriation. Despite the fact that Iran did not
issue any law or decree to nationalize or expropriate Shah
Goli or the residential housing project expressly, it is
recognized in international law that measures taken by a
State can interfere with property rights to such an extent
that these rights are rendered so useless that they must be
deemed to have been expropriated, though legal title to
the property formally remains with the original owner and
the State does not purport to expropriate them. The
nature of the measures taken by Iran was aimed at Shah
Goli, and the property interest involved comprised the
physical property and the right to manage the project and
complete the construction in accordance with the
agreements entered into.
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Though the Court did not make an explicit pronouncement
as to whether or not the expropriation was unlawful, it said
that if the Court considered it necessary to consider such
issue, it would have ruled that the expropriation was
unlawful because Iran ignored its international legal
obligation under the Treaty of Amity, Economic Relations,
and Consular Rights between the U.S. and Iran (that they
should make adequate provision at or prior to the taking of
property for the determination and payment of just
compensation).
AMOCO INTERNATIONAL FINANCE v. IRAN
27 ILM 1314
Amoco is a Swiss company which is also a wholly owned
subsidiary of the American company Standard Oil. Amoco
entered into a joint venture with NPC (Iranian company
controlled by the Iranian government) to form Khemco, an
Iranian company jointly owned and managed by Amoco and
NPC. The goal of the venture was to process and sell Iranian
natural gas, each contracting party having 50% shares in the
profits to be realized.
In 1980, the Khemco Agreement, which was by its terms
valid for 35 years, was declared null and void by the Iranian
government following the 1979 Iranian revolution and the
implementation of the Single Article Act of 1980 that was
intended to complete the nationalization of the Iranian oil
industry. Amoco then filed a suit for compensation for the
taking of its interests in Khemco.
Iran’s expropriation of AMOCO’s interests in Khemco was
lawful, entitling the latter only to compensation and not
damages.
In relation to foreign investment law, it was held in this case
the ground for expropriation which was formerly limited in
the Chorzow case to public utility has been expanded to the
more general term public purpose. Therefore, it is not
needed for the expropriating home state to prove that it
wanted to exercise ownership over the property taken for
the use of the public. It is enough that the taking be done in
pursuance of some public purpose.
The case also reiterated the LIAMCO doctrine that a taking
satisfies international standards of lawfulness when it
provides for a mechanism for the payment of
compensation. In this case, the Single Article Act mandated
that a special commission will be constituted to determine
the amount of the compensation due to the foreign
investor, any disagreement over the quantum of which may
be submitted to arbitration. The fact that Amoco did not
avail of this remedy cannot be said to equate to the
expropriation being unlawful per se just because Kuwait did
not grant compensation in such
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manner and within such time as to satisfy the investor.
According to the ruling in this case, what would make an act
of taking unlawful under international law would be the
absence of any provision for compensation.
This case is also instructive in relation to the issue of
discriminatory takings. In comparison to the BP Exploration
v. Libya case, there it was held that there was discriminatory
expropriation because it was undertaken by Libya only
against BP Exploration and not against other similar
ventures of other nationalities. However, in this case of
Amoco, the tribunal held that an expropriation is not per se
unlawful just because it is directed only against 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 such manner as to be
determined by the home state in pursuance of its policies.
The non-expropriation of an entire branch of economic
activity is not in itself discrimination, absent any evidence
of patent bad faith or discriminatory designs. It explained
that reasons specific to the non-expropriated enterprise, or
to the expropriated one, or to both, may justify such a
difference of treatment. Furthermore, a coherent policy of
nationalization could anyway be reasonably operated
gradually in successive stages.
The tribunal also held in this case that stabilization clauses
must be clear in demanding from the home state
obligations which the investor state can enforce against it.
Absent such unequivocal stipulation in the contract, the
home state cannot be deemed to have been a party to the
contract and cannot therefore be held liable under its
terms. In this case, no clear obligation was imposed by the
concession contract on the Iranian government. There was
no showing that the contract contained a “stabilization
clause” that would have obligated Iran to insulate the
contract from any change in domestic law that would affect
the contract’s operation. As such, the Iranian government
cannot be said to have expropriated Amoco’s property in
breach of its obligations because no obligation exists on its
part. The tribunal concluded that Iran’s expropriation was a
lawful on under international law which meant that only
compensation and not damages would be the consequence
of its actions.
Professor Virally of the Anglo-Iranian Tribunal in this
case took the analysis several stages further from the
LIAMCO case. Whereas Mahmassani, like every
arbitrator before him, had emphasized the sanctity of
contracts and had accepted that a nationalization
required compensation from a prematurely ended
contract, Professor Virally simply rejected that
sovereign states are bound by contracts with private
parties as, in his view, this would allow ‘private
interests to prevail over duly established public
interest, making impossible actions required for the
public good. Professor virally also concluded in this
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case that in a lawful expropriation only ‘the just price
of what was expropriated’, representing the ‘value at
the moment of dispossession’ should be paid. Thus
there would be damnum emergens (actual loss) but no
lucrum cessans (loss of profits).
Note however that Higgins herself does not agree with
Professor Virally’s view. According to her, a state may
still engage in what it sees as actions in the public good
that violate contracts; but there is no reason why the
foreign investor should underwrite
this exercise in state sovereignty.
CLASS NOTES
PHILLIPS PETROLEUM COMPANY IRAN v.
ISLAMIC REPUBLIC OF IRAN
21 Iran-US Claims Report
Phillips entered into a Joint Structure Agreement with Iran to
exploit oil. In 1978, Imam Khomeini sparked a revolution,
which succeeded in toppling the former regime. The
revolutionary government decided to withdraw all oil
contracts with foreign companies under the guise of
nationalization. The foreign companies asked for just
compensation, citing the deprivation of their contractual
rights. Iran countered this by invoking the defense of force
majeure and that the workers’ refusal to work for foreigners.
The court held that due to the lack of proof that workers
refused to follow the orders of Iranian authorities (which
refusal forms the basis of Iran’s defense of force majeure),
the foreign companies’ rights were not obliterated by force
majeure. As regards expropriation, the court held that an
expropriation does not need to be in a specific form (by a
law or de facto). It must be noted that the control over
property by a government does not automatically justify a
conclusion that the property has been taken by the
government. However, such a conclusion of a take-over by
the government is warranted when events demonstrate
that the owner was deprived of fundamental rights of
ownership and that the deprivation is not merely
ephemeral. According to the court, “the intent of the
government is less important than the effects of the
measures on the owner, and the form of the measures of
control or interference is less important than the reality of
their impact.”
Because the court recognized that the foreign companies
were deprived of their contractual rights, it ruled that Iran
must pay just compensation from the point of deprivation
(i.e., the date when it was said/declared that there was no
reasonable prospect of a return and that the Joint Structure
Agreement must be regarded as terminated). Note that the
point of deprivation or taking, when the taking is through a
chain of events, is “when the interference has deprived the
claimant of fundamental
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rights of ownership and such deprivation is not merely
ephemeral or when it becomes an irreversible deprivation.”
Regarding the compensation due, it must be in an
“effectively realizable form” which represents “the full
equivalent of the property taken.” The compensation may
not be for less than the full value, despite Iran’s invocation
of the dynamic nature of customary international law and
recent trades, since the court ruled that this fact cannot
prevail over specific terms of the treaty. (Remember, lex
specialis).
On Iran’s argument that, based on the Chorzow case, the
amount of the compensation must be mitigated since the
expropriation is lawful, the court said that the legality of the
taking is of no moment since the treaty in this case does not
distinguish between lawful and unlawful taking. Chorzow
does not provide any basis for the assertion that a lawful
taking requires less compensation than an unlawful taking.
“THE TAKING OF PROPERTY BY THE STATE:
RECENT DEVELOPMENTS IN INTERNATIONAL
LAW”
by Rosalyn Higgins
Some important definitions:
 Indirect takings – deprivation of property rights
through acts of the State other than outright
takings [Form: nationalization, expropriation,
confiscation, requisition, or sequestration]
 Property rights as human rights – jurisprudence in
this area is not in line with international law on
the taking of property
The Concept of Property
Property is defined by the municipal legal system. The
concept of property provides the owner with the protection
of the law in certain key respects. In “The Theory of
Nationalization”, Katzarov identified the positive and
negative aspect of property.
 Positive: Right of disposal which is both
absolute and unlimited in point of time
 Negative: Exclusive; the holder of the property
has the power to prevent another person from
performing an act of disposal
Property includes chattels and land, as well as contractual
rights (as a species of property), if the said rights can be
transferred from one person to another. In English, they are
referred to as things, and in French, as “choses in action”.
Aside from these, property may also consist of abstract
things such as debts, shares, patents and copyrights.
International law cases accept that property is both choses
and choses of action; tangibles and intangibles.
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Legal and Social Property (Ackerman‟s
classification)
- Social Property: A person’s right to control the use
of his property is generally recognized in his
dealings with individuals
- Legal Property: An appeal to the opinion of a legal
specialist is necessary for a person to believe
himself justified in claiming something as his.
On Assessing Compensation for Loss of Choses in
Action
There is a difficulty in classifying bundles of rights and
assessing compensation for loss of choses in action, as
shown by the treatment of the legal nature of petroleum
concessions (as to whether they are property rights or
contractual rights). This classification affects the right of the
state to interfere with the said right. Some new 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 social
functions as rights of property.
Entitlement to Property
Katzarov describes two fundamental instincts in man – the
drive to appropriate and the instinct, which drives him to
seek the company of his fellows. The two instincts have
taken form in the social institutions of property and State.
Social Function of Property
Higgins mentioned the following with respect to the social
function of property
- property is a particular freedom the owner is
enjoying in his activities, which ultimately
depends on the assistance that a claimant
receives from the community
- Property is subject to overriding powers of the
state
- International law affirms that property rights be
exercised in a manner that is not dangerous and
does not harm others.
- Private property may be used by the state for
authorized punitive purposes. (notion accepted
both at municipal and international level)These
takings are for purposes of state authority widely
perceived as legitimate and do not enrich society
as a whole. It is required that the taking only be
for a public purpose, and with compensation.
On Public Use and Compensation Requirements
Compensation measures must be interpreted to
encourage the even distribution of benefits and burdens
over the long run.
Tolerated Takings
There exists a basic prohibition with respect to interference
by one state in the property of another.
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- If there is a treaty between two states in respect
of property, it will not be lawful to interfere with
property even if it is located within one’s
territory.
- The principles of territorial jurisdiction give way to
the precept of pacta sunt servanda.
- This holds even with respect to what the author
said are normal permitted exceptions to the
prohibition on interference.
- Domestic legislation cannot be used to justify a
violation of an international obligation.
- In the event of the existence of a state of war
between parties, the protection of the treaty
might be removed but it is removed not just
because of the existence of war but because of
the rule of international law that certain treaties
become suspended or cancelled after the
outbreak of war. The determining factor is always
international law.
Relations between States and Private Parties in
respect of Property Matters
Whether or not a State is entitled to interfere with foreign
property rights by virtue of its territorial sovereignty
depends on the nature of the property and attendant
circumstances.
Acquired rights
Acquired rights are protected by international law.
Acquired rights include:
a) those acquired under municipal and international
law,;
b) Historic rights or historic title;
c) In the context of intertemporal law: International
tribunals have sought to identify whether at a
critical time sovereignty has been acquired [a
juridical fact must be appreciated in light of
contemporary law]; AND
d) In context of succession of States: successor
States must respect rights acquired under its
predecessor
Permanent Sovereignty over Natural Resources
General Assembly Resolution 1803 (XVII): International law
and the national legislation in force shall govern capital
imported to exploit and develop natural resources, as well
as the earnings on that capital. Profit-sharing shall be in
accordance with the agreement of the investors and the
recipient state, and the state’s sovereignty over its natural
wealth and resources must not be impaired. Par. 4 of this
resolution states, among others, that nationalization,
expropriation or requisitioning shall be based on grounds
or reasons of public utility, security or the national interest,
both domestic and foreign.
International law requires that taking be for a public
purpose – public utility or otherwise.
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Par. 4: The owner shall be paid appropriate compensation,
in accordance with the rules in force in the State taking such
measures in the exercise of its sovereignty and in
accordance with international law. In any case where the
question of compensation gives rise to a controversy, the
national jurisdiction of the State taking such measures shall
be exhausted. However, upon agreement by sovereign
States and other parties concerned, settlement of the
dispute shall be made through arbitration or international
adjudication.
Assessment of quantum of compensation is a solely
domestic matter
Resolution 3171, par. 3 provided for the state’s discretion
with respect to the determination of the amount of possible
compensation (as opposed to appropriate compensation)
and the mode of payment. It also provided that in the event
of disputes, these should be settled in accordance with the
national legislation of each state.
Compensation due to developing states was for
“exploitation and depletion of and damages to their natural
resources and all other resources.” International legal
standards are deemed irrelevant on the ground that they
are preferential. It is said that if domestic law chooses not
to compensate nationals for a taking of property, then
foreign investment shall also not be entitled to
compensation, a point to which Higgins does not agree. It
was also said that not all takings of property are in the form
of nationalizations or expropriations.
Act of State doctrine
The courts of the forum may be party to a deprivation of
property that may or may not have been lawful, but it is
incorrect for an international tribunal to offer as a reason
for rejecting restitution the fact that nationalization is
qualified as an Act of State immune from control. Deference
given by some courts to nationalization of foreign states
does not equate to immunity of nationalization in general
to judicial or other control at the international level.
Recent trends in the international law of
petroleum concession and licenses
A State may in principle take the property of a foreign
private person within its own jurisdiction, provided:
- That it does so for a public purpose and in the
absence of discrimination
- That compensation is paid
Deeds of concession often have the appearance of a
contract, in which there is an agreed identification of
mutual benefits and obligations between the State and the
concession holder. Essential features of a concession are
that
a) it is a state act, and
b) It is a vesting of property rights in the
concessionaire.
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Types of Concessions
 Public service concession - concessionaire
undertakes a public service and obtains profit
from charges incurred by users of the service
 Public works concession - concessionaire
undertakes to build and maintain a public work
On Different Tribunals‟ Rulings on the Question of
the Status of Certain Concessions.
 Aramco case: mining and oil concessions have
remained in the rudimentary stage in Moslem law
and is not the same in different schools
 Texaco v. Libyan Arab Republic: Texaco
concession was not an administrative law
contract – it was not for a public service, not
entered into by administrative authority, did not
confer upon the administrative authority the
unusual powers of alteration or abrogation.
 Liamco-Libya Arbitration: concessions were
essentially contractual in nature, but were not
administrative contracts. The stabilization clause
emphasized the contractual basis of the
concession
 BP v. Libya: the government could alter or
terminate such contracts unilaterally, but they
could only do so in pursuance of a true public
interest
Legal Effect of Stabilization Clauses on Permanent
Sovereignty over Natural Resources
The greater the incompatibility of State action with
stabilization clauses, the more necessary it is for specific
provisions to have been written in if they are to be found
unlawful under the concession. Governments seek to
introduce changes into its relationship with concessionaires,
reasoning that those changes are for the public good and it
has the tax or regulatory power to do so, or that such
changes are compatible with obligations under the
concession. In light of this, holders of concessions should
resist and protest every change introduced by the
government.
The Taking of Property and Human Rights
International law on the rights of states over property
located in their jurisdictions has becomes overlaid with
parallel legal considerations, such as those arising from the
notion of property rights as human rights. Human rights
here represent a set of widely shared demands, expressed
with a high level of intensity about the rights of individuals
or groups vis-à-vis the state.
- Powerful trend is to accord special status to the
entitlement to property, at least as a matter of
treaty-based human rights law.
o UN Declaration on Human Rights, Art.
17 provides that everyone has a right to
own property alone as well as with
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others, and that no on shall be
arbitrarily deprived of his property.
- In the 1960’s, the concept of permanent
sovereignty over natural resources was pressed as
a legal obligation, which ran counter to the notions
of property entitlement as a human right. As a
consequence, neither the Int’l Covenant on
Economic, Social and Cultural Rights nor the Int’l
Covenant on Civil and Political Rights had private
property protection clauses.
- With respect to the European Convention on
Human Rights, the approval of a provision on
property rights as human rights was heavily
disputed, particularly as to compensation (e.g.,
w/n the phrase “such possessions cannot be
subject to arbitrary confiscation” of itself implies
a right to compensation.
o To solve this, a formula was evolved
where there continued to be no
reference to arbitrary takings of
property or to the duty to compensate
but reference to general principles of
international law was introduced. Art. 1
of the 1st Protocol to the European
Convention begins with a statement of
entitlement to legal and natural persons
to peaceful enjoyment of possessions,
but no mentioned entitlement to
ownership. It also contains a prohibition
against deprivation of possessions,
which deprivation shall be subject to
conditions provided for by law and by
the general principles of international
law.
o All parties to the European Convention
accepted that a taking of foreigners’
property entails a requirement to pay
compensation.
- Standard of compensation: For the UK, Adequate,
prompt and effective compensation. The
European Convention’s organs have not had
occasion to pronounce whether the general
principles of international law require such a
standard.
[MOST IMPORTANT] W/N Compensation is due only to
foreigners, or to nationals as well: The silence on
compensation in the Protocol entails that as a matter of
practice, all persons whose property is nationalized is taken
to be compensated and that there is an obligation to make
such payment in the case of foreigners. The precise
standard of compensation depends upon one’s appraisal of
the requirements of contemporary general principles of
international law.
 This was confirmed by the case of Gudmundsson
v. Iceland before the European Commission on
Human Rights. In this case, the Commission
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found that the measures taken by a state with
respect to the property of its own nationals are
NOT subject to the general principles of
international law in the absence of a particular
treaty clause specifically so providing, and that
the records of the preparatory work as to the
drafting and adoption of Article 1 of the Protocol
confirm that the contracting parties in the said
protocol had no intention of extending the
application of these principles to the case of
taking the property of nationals.
 Higgins said that none of the subsequent case law
on Article 1 of the Protocol indicates a change of
heart from the pronouncement quoted above.
 In the Handyside case, it was held that Art. 1 of the
Protocol requires member States to respect the
property of every natural or legal person within
their jurisdiction, which includes nationals. There
is no statement of an express departure from the
holding in Gudmundsson but an affirmation that
national and non-national alike are entitled to
protection from the arbitrary confiscation of their
property.
- In the case of Sporrong, the Court, interpreting
Art. 1 of the Protocol, held that interferences with
property may occur that are neither deprivations
nor control for a public purpose; the test to see
whether such an interference 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 protection of the individual’s
fundamental rights (Balancing Test)
o According to Higgins, the effect of this is
that the State is permitted to interfere
with property rights beyond the limits
expressed in Art. 1, contingent upon a
further balancing test the content of
which is uncertain.
On the Public Purpose Requirement
A public purpose is an objective test. This requirement has
been understood as a means of differentiating takings for
purely private gain on the part of the ruler from those for
reasons related to the economic preferences of the country.
With respect to international law, the controversy as to the
meaning or scope of takings for a public purpose is as to
whether it includes retaliatory takings. According to
Higgins, in the case brought against the UK with respect to
its nationalization of the Iron and Steel Industry in 1967, the
pronouncement of the court was very close to saying that
what the democratically elected Parliament decides is
needed is definitionally in the public interest.
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Higgins said it is difficult for an international tribunal to say
that a proposal is NOT in the public interest if a parliament
elected by the people, operating within democratic
principles of accountability decides on the said proposal
after careful debate.
On the Control of the Use of Property
The right of a State to enforce laws to control the use of
property (as stated in par. 2 of Art. 1 of the Protocol) in
accordance with the general interest is not impaired by the
proscription of Art. 1 of the Protocol against deprivation of
possession of property. The difficulty as regards this matter
of control is that it can at times be so substantial as to
amount to a taking of property. As regards the requirement
of par. 2 of Art. 1 of “general interest” as distinguished from
the “public interest” in par. 1, there is yet no authoritative
pronouncement, but a suggestion exists that public interest
is contrasted with private, personal interests while general
interest, is contrasted with sectional group interests. But
based on case-law, matters are still unclear as there is
unexplained cross-referring with respect to the 2 terms.
Conclusion
Property rights as human rights are still in a very formative
stage. The European Convention is likely to provide the
major focus for developments. Questions of permanent
sovereignty over natural resources, compensation, public
interest, concessions, regulatory controls, and human rights
are all intertwined. If we isolate them, we exclude relevant
factors from consideration.
“STATE RESPONSIBILITY FOR THE
NATIONALIZATION OF FOREIGN-OWNED
PROPERTY”
by Eduardo Jimenez De Arechaga
Contemporary international law recognizes the right of
every state to nationalize foreign-owned property as a
corollary of the permanent sovereignty which the state
possesses even if a predecessor state or previous
government engaged itself by treaty or contract not to do
so.
- Sovereignty as permanent: state never loses its
legal capacity to change the status or method of
exploitation of those resources, despite any
arrangements which may have been made.
Traditional international law view: nationalization as
unlawful and as violative of acquired rights which are
internationally protected; in the event of such a
nationalization, the state must make restitution or pay a
sum of money with damages. The compensation must be
just or adequate and prompt and effective.
On Unjust Enrichment
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What must be taken into account is the beneficial gain
obtained by the nationalizing state and not the loss suffered
by the owner of the expropriated property. There are thus
instances where there is no duty to compensate, as when
nothing is gained by the nationalizing state, like in the
suppression of a detrimental industrial activity.
Compensation under the UN Charter
Art. 2, par. 2: Each State has the right: (c) To
nationalize, expropriate or transfer ownership of
foreign property, in which case appropriate
compensation should be paid by the State
adopting such measures, taking into account its
relevant laws and regulations and all
circumstances that the State considers pertinent.
In any case where the question of compensation
gives rise to a controversy, it shall be settled
under the domestic law of the nationalizing State
and by its tribunals, unless it is freely and mutually
agreed by all States concerned that other
peaceful means be sought on the basis of the
sovereign equality of States and in accordance
with the principle of free choice of means.
According to the author, Art. 2, par. 2 does not mention
“prompt, adequate and effective compensation” nor is it
based on a position which denies the existence of any
obligation to pay compensation. Rather, it is rooted in
equitable considerations. Appropriate compensation under
the UN charter allows a domestic or international decision-
maker to consider elements of unjust enrichment in the
background of investment to determine what constitutes
appropriate compensation. As such, the UN charter cannot
be said to have utterly rejected international law. Doctrine
of “prompt, adequate and effective compensation” was
simply replaced by the equitable principle.
On Investment Agreement between States and
Private Persons
There was a disagreement as to the legal status of
investment agreements between States and private
companies. Industrialized States’ view: agreements
concluded by a state with private foreign companies are on
the same footing as inter-state agreements
Countries of the Group of 77 view: Agreements between
states and private foreign companies are not international
agreements and because they were not concluded between
states, they are governed by the domestic law of the state
concerned; such agreements did not have international
status because private companies are not subjects of
international law.
- Reason behind this view: fear that giving such
agreements the status of international
agreements might give the character of general
A2015
international law to solutions like the one
sponsored by the World Bank.
Result of this disagreement: A dispute whether a
compensation is appropriate is to be settled in an
arbitration which places the private company and the
developing States on the same level of adversary
proceedings rather than in litigation between interested
States
Anglo-Iranian Oil Co. case: Investment agreements cannot
be considered international treaties. The cancellation of
such agreements by the nationalizing state is not a breach
of international obligation, but it is subject appropriate
compensation.
On Stabilization Clauses
A stabilization clause is a clause which states that the
agreement will not be altered during its term w/o the
consent of both parties. According to the author, despite
such clauses, the state still has the right to nationalize due
to its permanent sovereignty. The only consequence is that
such nationalization must have been paid with special
compensation.
On Calvo Clauses
Calvo Clauses are those which state that “commercial
companies, national or foreign, are subject, without
restrictions, to the laws of the Republic. In every state
contract with foreigners or in the concession contracts
granted in their favor, it must be expressly stated that they
will submit to the laws and courts of the republic and
renounce all diplomatic claims.” In effect, the private party
agrees not to call on his state of nationality in any issues
arising out of the said clauses. Industrialized states have
disputed the validity of these clauses, saying they constitute
a waiver by a private party f a state’s inalienable right to
protect its citizens abroad. However, the author said that as
a governmental party is expected to comply with an
arbitration or stabilization clause of a contract, a Calvo
clause must be observed on the basis of the principle of
good faith.
As such, the equitable balancing nature of the provision and
the concept of good faith as applied to international
obligations must be considered in interpreting the rights
and duties of States under Art. 2, par. 2 of the UN Charter.
Absence of an express reference to the principle of good
faith in the said Article does not mean the duty to perform
contractual obligations in good faith has been excluded
from the Charter. International law may act as a factor to
limit the freedom of a state when an alien’s interest is
affected, even if Art. 2 of the Charter does not expressly say
so.
“ISSUES OF COMPENSATION AND
NATONALITY IN THE TAKING OF ENERGY
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INVESTMENTS”
By Eli Lauterpacht (1990)
(Note: The article is a review of the ICJ and the Iran-US
Claims Tribunal decisions regarding disputes arising out of
the expropriation of energy investments. The main issue
here is compensation for when a corporation of one
nationality enters into relations with a foreign State to
develop and use the latter’s energy resources, and the latter
decides to take the investment.)
The qualification of nationality necessary before a company
or its shareholders can lodge an international claim is what
establishes the locus standi of the protecting State.
Barcelona Traction Co. – nationality of the corporation
rather than the nationality of the shareholders is what
matters in the protection of corporate investment abroad,
in terms of customary international law
- Exception in favor of the shareholder: where the
company is incorporated in the wrongdoing state.
- Caveat by Lauterpacht: Exception must be
regarded with caution due to the doubt raised in
the ELSI case; only safeguard lies in a treaty
between the investment-receiving State and the
State whose nationals are likely to be the effective
investors confirming the right of the latter State
to intervene on behalf of its nationals, even if they
own their interest in the investment-receiving
State through a corporation established in that or
a third country
ELSI case – treaty involved did not contain an express clause
providing for protection of the corporations wholly owned
by foreign corporations, with the closest form of protection
being a substantive provision which permits corporations of
one party to organize, control and manage corporations of
the other party.
- Judge Oda: it was possible that ELSI could’ve
suffered wrongs that did not necessarily affect
Raytheon (ELSI’s parent company; Raytheon is a
US company) and thus, the US and Raytheon
couldn’t have lodged an international claim.
In sum, the wide power shareholders of one nationality to
bring claims on behalf of companies of another nationality
must be expressly spelled out, as was done in the Claims
Settlement Declaration in the Iran-US Claims Tribunal
where the claims of nationals were characterized as being
“owned indirectly by such nationals through ownership of
capital stock or other proprietary interests in juridical
persons, provided that the ownership interests of such
nationals were sufficient at the time the claim arose to
control the corporation or other entity.”
Nature of Risk to Investments
A2015
Normally, the risks to which investments are exposed are
political in nature (principally expropriation or
nationalization). 2 types of risk are (a) direct, express and
obvious [when it occurs because of legislation] or (b)
indirect, covert, or creeping interference with investor’s
freedom to control his enterprise and derive economic
benefit from it.
When the taking by the State of a foreign investment NOT
unlawful: (a) for a public purpose, (b) not discriminatory, (c)
accompanied by compensation. The third is the most
important and the most controversial, particularly with
respect to the amount. Lauterpacht says that customary
international law is uncertain about the amount of
compensation needed. ICJ has no jurisprudence on the
matter, and its predecessor (PCIJ) only has one judgment
(but not explicit in its treatment of the level of compensation
for lawful taking); only the Iran-US Claims Tribunal has
jurisprudence. As a result, and because of differing views of
neutral members of the tribunal, there is a certain lack of
uniformity in relevant jurisprudence. With respect to the
question of compensation between Iran and the U.S., the
prescribed compensation as regulated by the Iran-US Treat
of Amity of 1955 is that which is in an “effectively realizable
form” and which represents the “full equivalent of the
property taken”.
On Reaching a Cash Figure to Reflect a „Full
Equivalent‟
The traditional Roman law distinction between damnum
emergens (associated with intrinsic value of the property
unrelated to its earning capacity) and lucrum cessans
(identified with loss of profits) has long dominated
international legal thinking on this subject.
Development in recent years: International tribunals have
shown willingness to appreciate that the value of an asset is
not something separable from its revenue-generating
capacity. In the case of the Iran-US Claims Tribunal, it has
adopted this view through the Discounted Cash Flow (DCF),
where the earning capacity of an asset during its productive
life is determined, deducting from such the cost of its doing
so then using an appropriate discount rate to produce a
capital sum representing the present value of the future
flow of earnings.
Aside from these, Lauterpacht noted that there is
inclination to introduce equity as an element in the
calculation of compensation. Lauterpacht pointed out that
despite the attractiveness of the concept of equity, t it is not
a concept that “can be sprinkled like salt on every part of
the law”, particularly in situations where the law prescribes
absolute rules not qualified by equitable requirements. He
said that qualifications that an absolute rule is subject to
equity or equitable considerations must be expressly
stated, lest these weaken the legal effect of clear rules.
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- When must equitable principles be taken into
account?
o In converting the established value of
an asset into a specific sum to be
awarded as compensation or damages
M. MEDELSON – WHAT PRICE EXPROPRIATION?
COMPENSATION FOR EXPROPRIATION: THE
CASE LAW
by M. Medelson (1985)
Thesis: The formula used by international case law for
lawful expropriations by the government of an alien’s
property, is the Hull formula or the “prompt, adequate,
effective compensation”
 The paper is in response to an Editorial Comment
written by Professor Schachter that the use of the
Hull formula is questionable and that the case law
actually uses a flexible standard that is not
necessary full compensation, so long as it is “just”.
In analyzing the case law, Medelson first examined the
prewar cases (also cited by Schachter in his Comment):
 Chorzow Factory case – contrary to Schachter’s
claims that the Court only required payment of
“fair compensation”, a perusal of the decision
shows that the court required, as a matter of
obiter dicta, that Poland should pay the “just price
of what was expropriated and the value of the
undertaking at the moment of the undertaking at
the moment of dispossession
o (consistent with the full compensation
standard)
o The Court here also differentiated the
pecuniary obligations in a lawful and
unlawful taking
o if the payment is unlawful, if restitution
in integrum is impossible, then
compensation for consequential loss is
also necessary
 Norwegian Shipowner’s Claims (1922) –
applicable standard used here is “just
compensation” but Medelson stressed that this
just compensation is based on the notion of just
compensation as used in the US. Based on the
Fifth Amendment of the US constitution, just
compensation is the fair valuation of the property
based on what a willing buyer is willing to pay a
willing seller. Again, this is full compensation.
In addition to these cases, Medelson also listed some
international cases that used the standard of full
compensation:
 Administrative Decision No. 2 decided by US-
Germany Mixed Claims Commission – Germany
A2015
is required to pay full, adequate and complete
compensation for the losses suffered by
Americans
 Goldenberg case – based on the Treaty of
Versailles, full compensation should be made
even in case of lawful taking (not 1/5 of its value,
otherwise, there will be wrongful compensation
for the unpaid 5/6)
 De Sabla case – taking by the government of an
alien’s property constitutes an international
responsibility and the state should pay full
compensation
Postwar cases:
 LIAMCO cases (in relation to Libya’s
nationalization decrees confiscating foreign-
owned oil concessions in Libya as also discussed
in Texaco v. Libya, BP v. Libya) – the nationalizing
state should pay full compensation for the loss
sustained based on the fair market value of the
plant and properties. The Court also awarded an
equitable compensation with some elements of
compensation for loss profits due to the
confiscation of the concession.
 AMINOIL case – taking for nationalization
purposes is not per se unlawful but the former
owner is entitled to full compensation or the
depreciated replacement value of its assets
 American International Group v. Iran – the
Tribunal did not decide on the applicability of the
Treaty of 1955 to decide the amount of
compensation but held that customary law
provides for the standard of prompt, adequate
and effective compensation. The Tribunal
required Iran to pay the fair market value of the
shares at the time of nationalization, including
loss of future profitability and good will.
WORLD TRADE ORGANIZATION
“THE PHILIPPINES AND THE WTO: SURVEY OF
CURRENT PRACTICES WITH EMPHASIS ON
ANTI-DUMPING, COUNTERVAILING DUTIES
AND SAFEGUARD MEASURES”
by H. Harry Roque
Constitutional Framework
The Philippines is the only World Trade Organization (WTO)
member whose Supreme Court has pronounced on the
constitutionality of the country’s entry into the WTO.
 Tañada v. Angara: Petitioners contended that the
WTO provisions, such as the most-favored- nation
(MFN) clause, the national treatment principle
and the Agreement on Trade-Related Investment
Measures (TRIMS Agreement)
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provisions violated Articles II and XII of the 1987
Constitution. The Court ruled that the WTO was
not in violation of the aforesaid constitutional
provisions for these are not self-executing
provisions which will give rise to a cause of action
in court if disregarded.
The SC also said that the WTO will not wipe out
local industries as the WTO has a built-in
protection against unfair trade practices (e.g.,
anti-dumping, safeguard measures against import
surges) which developing countries (like the
Philippines) may avail of. Prof. Roque said that the
decision may be criticized on the basis that the
Court only considered arguments in support of the
WTO without necessarily examining the
antithetical arguments
SC in effect ruled on the country’s unequivocal
commitment to the WTO as a matter of treaty
obligation. Its provisions furthermore, are
enforceable in the entire territory of the country
as forming part of the law of the land.
Case Study on Compliance: Anti-Dumping,
Countervailing, and Safeguard Measures
- Anti-dumping, countervailing, and safeguard
measures are duties which may be imposed as
tools of fair trade to correct instances of dumping,
unfair advantage because of subsidies, and surges
in imports of commodities. These measures are
intended to promote fairness in the regime of
free trade among nations.
o Article VI, GATT 1994 on Dumping:
when the export price of a commodity
is less than its normal value in the
exporting state.
o Agreement on Subsidies and
Countervailing Measures (ASCM): a
subsidy is a financial contribution by a
government body or any public body
where there is either a direct fund
transfer, a revenue which otherwise
due is foregone or not collected, or
when a government provides goods or
services (also, when a state maintains
any form of income or price support and
a benefit is conferred)
- Safeguard measures: used when there is a
dramatic increase in the imports of a particular
commodity.
- The WTO does not prohibit the imposition of
these duties, though it regulates the conditions
under which these may be imposed. It seeks to
achieve this by requiring Member nations to
amend their domestic laws and regulations to
conform to the provisions of the Marrakesh
Agreement.
A2015
Substantially, the Agreements seek to achieve consistency
in the laws of Member nations by: (a) due process
requirement before measures are imposed, (b)
requirement of a local body established by member nations
to conduct the required procedure before resorting to the
imposition of these measures, (c) setting the kind of
evidence that would justify the imposition of the measures,
and (d) amount of duties that may be imposed.
For the Antidumping Agreement and ASCM, the following
are required before imposition of measures: (a) an instance
of dumping, or a subsidy, (b) an injury to the domestic
industry, (c) a causal relationship between either the
dumping, or the subsidy.
The Philippines enacted Republic Act 878233 to implement
the Antidumping Agreement, Republic Act 875134 to
implement the ASCM, and Republic Act 8800 to implement
the AS. The said laws comply substantially with the WTO
provisions (substantially, not completely, because of
protectionist elements in Congress). The differences are
below:
1. Dumping and countervailing measures were
proper even for alleged dumping which might
injure or likely to injure the domestic industry.
The WTO requires an actual material injury and
not a mere likelihood;
2. Domestic industry was merely the “major
proportion of total domestic production”;
3. Provisional duties could be issued earlier than 60
days from date of initiation of the investigation;
4. Dumping duties were twice the dutiable value;
5. The test for like products was merely that it be
substantially the same, a substitute, or serves the
same or similar purpose. Under the WTO, test of
like product is only identical in all respects or
characteristics resembling product under
consideration.
Tariff Commission Rulings
The Tariff Commission has had the opportunity to rule on at
least six investigations; to wit: anti-dumping investigations
against Cold Rolled Coils/Sheets (CRC’s) from Taiwan and
Malaysia, Steel Billets from Russia, figured glass from China,
and polypropylene resins from Korea.
- It found positive evidence of dumping against the
CRC’s from Malaysia, steel billets from Russia and
resins from Korea. In all three cases, though, the
collections of the anti-dumping duties were
suspended.
- CRC’s from Malaysia and Steel Billets from Russia
investigations: the collections were suspended
until such time that the Protestant, the National
Steel Corporation, resumes its operations.
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o An anti-dumping duty was levied on
CRC’s from Malaysia only by reason of
default since both the Malaysian
exporter and the Malaysian Embassy
refused to participate in the
investigation
- Resins from Korea case: collection of the duty was
suspended, in response to consultations against
the duty requested by Korea in Geneva pursuant
to the WTO dispute resolution mechanism.
In the other cases, the Tariff Commission refused to impose
the duty even if Protestants in all instances were able to
prove dumping and even material injury, because the
Protestants failed to prove the required causal connection
between dumping and the material injury.
Safeguard Measures
Requirement by the WTO for safeguard measures = proof of
a surge of imports either because of unforeseen
circumstances OR the implementation of the provisions of
the WTO (e.g., tariff reduction), a serious injury or threat to
domestic industry. The threshold for safeguards is lower
than dumping duties and countervailing duties (only a
serious injury or a threat of it and not material injury may
resort to safeguards temporarily, and solely to give them
the chance to compete against the sudden surge of imports)
2 Factors Which Tempers the Resort to Safeguard
Measures:
1. Measures are applied on commodities regardless
of origin
2. Stringent reportorial requirements where
member nations have to report even the start of
a safeguard investigation
Safeguard measures, by way of a case study on the
Philippines’ compliance with the WTO, are illustrative of
Philippine State Practice and how much our competent
authorities know about the WTO.
- Portland cement investigation finding: safeguard
measures were not imposed
- Cement tile investigation finding: imposed
safeguards
Criteria for the two findings: a) existence of a surge in
imports as result of unforeseen developments, b) that
product in consideration was being imported in such
increased quantities as to cause or threaten to cause a
serious injury, c) domestic product is a like product
(relative or absolute likeness), d) presence and extent
of serious injury or threat to the domestic industry of
the like product, and e) existence of a causal
relationship between increased imports and the
serious injury or threat thereof.
A2015
The difference in the 2 cases was in the issue of the
existence of increase imports of the relevant
commodities and in the elements of serious injury and
causal relationship:
Ceramic tile case: There was a dramatic increase
in imports and increase relative to domestic
production from 17% to 68%. Also noted was the
decline in market share of the domestic industry
and an erosion of its competitive position (which
equates to serious impairment of the overall
market position for domestically produced like
products)
Portland Cement case: The Tariff Commission
determined the existence of a surge in imports
from 1996 to 2000 but concluded there was no
serious injury or a threat of injury to the domestic
industry and thus, no need to prove a causal
relationship. The Commission noted that the
decline in domestic consumption and not the
entry of imports caused the decline in domestic
sales of local products, that there was no
significant decline in production and total goods
sold, no underutilization of capacity and no
uniformity in the financial performance of
domestic producers (as only the complainants in
this case suffered losses, according to the
commission). The decision not to impose
safeguard measures was based on positive
evidence that one of the elements required for
the imposition of the measures was lacking.
DTI Sec. Mar Roxas described the decision as
wrong and declared he would impose permanent
safeguard measures or extend the provisional
duty on cement. Under the law, he couldn’t do
either because such power is granted to the Tariff
Commission. Prof. Roque said this episode
demonstrates the need to educate our highest
ranking competent authorities not only on the
issue of compliance but also with respect to our
treaty obligations under the WTO. Roxas ended
up promulgating a decision stating that he was
bound by the negative finding of the Tariff
Commission and has no alternative but to abide
by the Tariff Commission’s recommendations.
The application of safeguard measures was thus
denied. The CA ruled that the DTI Secretary was
not bound by recommendations of the Tariff
Commission, but the SC overturned this ruling.
This case shows the independence of the Tariff
Commission and the fact that its factual findings
constitute the final determination as to whether
1) a product is being imported into the country in
increase quantities [whether the product is
absolute or relative to domestic production, and
2) whether
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just a hortatory provision which cannot be legally enforced

the importation in increased quantities causes as a matter of right without any supporting legislation.
serious injury or threat to domestic industry.
The signing of the WTO Agreement should not be viewed as
The Philippines and the WTO Dispute Settlement
a limitation on economic sovereignty. The WTO remains as
Mechanism
the only viable structure for multilateral trading and a
The Philippines has been a complainant once, in the
forum for the development of international trade law. Its
desiccated coconut case against Brazil. The case was filed by
alternative is isolation, stagnation or economic self-
a Philippine delegation shortly after a Filipino, Justice
destruction. The Philippines accommodates international
Feliciano, was elected to be the first ever President of the
trade agreements anchored on the policy of equality and
Appellate Body of the WTO. The complaint arose from a
reciprocity.
121.5% countervailing duty levied on Philippine desiccated
coconut, despite the minimal amounts of coconut exported
Amicus Curiae Memo of Lilia Bautista
by the country to Brazil, which incidentally, is another
coconut producing country.
 The Philippines lost after Brazil pointed out that
the proper venue for the Philippine action was not
AMICUS CURIAE MEMORANDUM OF AMB.
the WTO but the GATT95 dispute settlement LINDA R. BAUSTISTA
In Tañada v. Angara, G.R. No. 118295 (1997)
mechanism since the levy was imposed under the
GATT.
Lilia Bautista, the Permanent Representative to the UN,
Since 1995, the Philippines has preferred to settle all claims WTO, and other International Organizations in Geneva,
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
Historical Background of the WTO Agreements
abandoned its challenge to the said import
restraints The Havana Charter
The idea of setting up an international organization on trade
Conclusion was conceived when the United Nations Economic and
Our actual participation in the dispute settlement Social Council set up a Preparatory Committee to draft the
mechanism of the WTO has been a case of non-exercise of charter of an International Trade Organization. The ITO was
treaty rights since we have resorted to this mechanism only meant to set a code of principles on fair trade and related
once, despite the fact that case law seem to be in our favor economic transactions designed to remove protectionist
in some other controversies confronting us. 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.
Nonetheless, 23 countries exchanged tariff reductions in
Petitioners sought to nullify the Philippine ratification of the
1947 and took out the Commercial Policy Chapter of the
World Trade Organization (WTO) Agreement on the ground
Havana Charter, and recast it into the General Agreement
that it limits, restricts and impairs Philippine economic
on Tariffs and Trade (GATT), before the conclusion of the
sovereignty and legislative power and does not take into
negotiations on the charter of the ITO.
consideration the Constitution’s Filipino First policy since it
gives foreign trading intervention.
GATT 1947
GATT is premised on the recognition that trade and
The Court ruled that the Philippine Constitution adopts the
economic endeavor should be conducted with a view to
generally accepted principles of international law as part of
raising the standards of living, ensuring full employment,
the law of the land as stated in the Declaration of Principles
allowing optimal use of the world’s resources, and
and State Policies and by the doctrine of incorporation, the
expanding the production and exchange of goods. GATT
country is bound by generally accepted principles of
was meant to create order and predictability in
international law which are automatically considered part
international trade relations. The function of GATT was to
of the Philippines’ laws. As it is an international agreement,
prevent such policies and put order in the system. It
it must be performed in good faith (pacta sunt servanda). A
resolves not only conflict of interest between nations, but
treaty creates a legally binding obligation on the parties.
also conflicts of interest within.
The Filipino First policy is

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The Uruguay Round and Philippine Participation
The Uruguay Round was the 8th round of multilateral trade
negotiations. The Philippines participated in the Ministerial
Meeting which launched the round. Like other developing
countries, improved market access for its exports was the
main goal in Philippine participations. Tariff reduction on
tropical products and other agricultural products was
pushed by developing countries.
The GATT refers to trade in goods. The new areas in the
Uruguay negotiations not covered by previous rounds were
(1) services, (2) trade related aspects of intellectual property
rights, and (3) trade related investment measures.
In the area of services, only those services actually offered
by a party were treated as bound commitments. The system
of offers in the area of services allowed impositions of
conditions on market access and national treatment. We
have offered only four sectors in the area of services:
telecommunications, transport, financial services, and
tourism.
On TRIPS, most countries agreed that bringing it within the
ambit of a multilateral trading system will deter some
countries from resorting to unilateral trade measures to
enforce their rights as intellectual property rights holders. It
was also agreed that developing countries should be given
adequate time to adopt their intellectual property
regulations with the requirements of the TRIPS agreement.
A multilateral discipline in TRIPS would afford is protection
against the use of unilateral measures such as that provided
in the Trade Law of the US.
The Final Act embodying the results of the Uruguay Round
of Multilateral Trade Negotiations was signed in 1994, after
8 years of negotiations. The results referred not only to the
agreement establishing the WTO but also to ministerial
decisions and understandings adopted on December 15,
1993, and at the Marrakesh Ministerial Meeting in 1994. It
is provided in the Final Act that the representative who
signed the Final Agreement agrees to submit to his
respective competent authorities for approval, the WTO
Agreement in accordance with his country’s procedures.
Our constitution sets a hierarchy of goals and aspirations for
its nationals which must be taken into account in passing
the implementing legislations. The choice of instruments in
assisting Philippine industry, labor, and consumers are
varied but they are not unlimited and one group of
beneficiaries should not be sacrificed for the other.
Congress has to balance the economic objectives
enunciated in the Constitutions with the benefits of
extensive international economic relations free of
unnecessary restrictions.
Summary of WTO Agreements
Agreement Establishing the WTO
A2015
The WTO provides the common institutional framework for
the conduct of trade relations among its members in
matters related to the agreements and associated legal
instruments annexed to the Agreement.
The WTO decides by consensus whenever possible;
otherwise, decisions of the Ministerial Conference and the
General Council shall be taken by the majority of the votes
cast, except in cases of interpretation of the Agreement or
waiver of the obligation of a member, which would require
3/4 vote. Amendments would require 2/3 vote in general.
Amendments to the MFN provisions and the Amendments
provision will require assent of all members. Any member
may withdraw from the Agreement upon the expiration of
six months from the date of notice of withdrawal.
Each member shall ensure the conformity of its laws,
regulations, and administrative procedures with its
obligations as provided in the covered agreements.
JAPAN – TAXES ON ALCOHOLIC BEVERAGES
(1996)
The Japanese Liquor Tax Law established a system of
internal taxes for all liquors at different rates based on
categories. This law taxed shochu lower than tax imposed
on whisky, vodka, cognac, and other alcoholic beverages.
The European Communities (EC), Canada and the US
claimed that spirits exported to Japan were discriminated
against under the Japanese Liquor Tax Law because of the
lower tax imposed on shochu as compared to other alcoholic
beverages.
The Appellate Body in this case upheld the panel’s finding
that the alcoholic beverages in question were taxed in
excess of shochu, which violated Art. III: 2 of GATT (as
regards the requirement that imported products must not
be subjected to internal charges in excess of those imposed
on like domestic products). The Appellate Body upheld the
panel’s finding that shochu, and whisky, brandy, rum, gin,
genever and liquors were not similarly taxed, and such a
move amounts to affording protection to domestic
production, which is violative of Art. III. The Body said that 3
issues must be considered to determine if a certain measure
is inconsistent with Art III, namely: 1) W/N the imported and
domestic products are directly competitive or substitutable
products; 2) W/N the directly competitive or substitutable
imported and domestic products are not similarly taxed; and
3) W/N the dissimilar taxation of the directly competitive or
substitutable imported and domestic products is applied so
as to afford protection to domestic production.
As regards the US’ application for binding arbitration to
determine the reasonable period of time for
implementation by Japan of the Appellate Body’s
recommendations, the arbitrator found that the
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reasonable period for implementation is 15 months from
the date of adoption of the reports.
KOREA – TAXES ON ALCOHOLIC BEVERAGES
The measures in dispute are provisions in Korea's Liquor Tax
Act and Education Tax Act (“the Act”). The Dispute
Settlement Body and the Panel held that the measures in
dispute result in dissimilar taxation which leads to a
protection of domestic production inconsistent with the
GATT 1994. The appellate body and the panel
recommended that the Dispute Settlement Body request
Korea to ensure that the Act complies with its obligations
under GATT1994. Korea agreed to implement the DSB’s
recommendations but said it required a reasonable period
of time to complete the implementation process of the
recommendations. The EC and the US requested that
binding arbitration determine the reasonable period of
time. Korea wanted the arbitrator to declare 15 mos. as the
reasonable time for implementation (a longer time, since it
wants to go through the ordinary session of the National
Assembly). The EC contends that the reasonable time for the
implementation of the recommendations should not exceed
6 mos. from the date of the adoption of the appellate body
report and panel report, arguing that members are not
automatically entitled to the 15-month period asked for by
Korea. The US argued that instead of going through the
ordinary session of the National Assembly, it can use
extraordinary sessions in amending the bill.
In this case, it was held that when the reasonable period of
time is determined through arbitration, the guideline for
the arbitrator is that it should not exceed 15 months from
the date of adoption of the appellate body or panel report.
If it is impracticable to comply immediately with the
recommendations of the Dispute Settlement Body, the
state shall be given a reasonable period of time for
implementation of the said recommendations.
Guide as to what is a reasonable period in the Award of the
Arbitrator in European Communities- Hormones: the
shortest period possible within the legal system of the
member state to implement the recommendations and
rulings of the DSB
However, despite the guideline above, a member state is
not obliged to use extraordinary legislative procedure to
implement the recommendations of the DSB. In this case, it
is reasonable that Korea be allowed to observe its normal
legislative process to implement the DSB’s
recommendations.
EUROPEAN COMMUNITIES – MEASURES
AFFECTING ASBESTOS AND ASBESTOS-
CONTAINING PRODUCTS (2001)
A2015
France issued a Decree prohibiting asbestos and products
containing asbestos fibers except when there is no
substitute for asbestos. The Decree imposed penalties for
violations of the prohibition. Canada averred that France
shouldn’t have banned asbestos outright since it could have
just opted to restrict its use. It cited an International
Organization for Standardization (ISO) standard to regulate
asbestos. It was pointed out however that the imposition of
such standards will reduce national standards to the least
common denominator. Canada then proceeded to accuse
France of discrimination in favor of asbestos substitutes,
and that the ban France imposed nullifies the benefits from
certain tariff concessions.
The Appellate Body in this case held that WTO members
have the right to determine the level of protection of life or
health which they consider appropriate in a given situation.
The only restriction of the GATT on such a determination is
that the measures created based on said determination
must not be arbitrary or unjustifiably discriminatory
between countries where the same conditions prevail or a
disguised restriction on international trade. Here, it was
held that the ban was justified to protect the health of
French workers based on the 1994 GATT (Art. XXb). The said
article provides for a general exception to WTO rules for
measures necessary to protect human health.
US – STANDARDS FOR REFORMULATED AND
CONVENTIONAL GASOLINE (1996)
The U.S. passed the Clean Air Act of 1990 (our focus is on the
Gasoline Rule) to control toxic and other pollution produced
by the combustion of gasoline manufactured or imported
into the U.S., providing for certain specifications for
reformulated gasoline. Venezuela and Brazil averred that
one of the rules granted an advantage to gasoline sourced
from certain third countries, which violates Article I of GATT
(providing for the same treatment for imports of all nations,
or Most Favored Nation treatment). They further contended
that the Gasoline Rule violated Article III (i.e., countries
cannot treat imports less favorably than domestic goods, or
national treatment) because it accorded less favorable
treatment to imported gasoline compared to U.S. gasoline
(Note: The Gasoline Rule subjected imported gasoline to a
more stringent statutory baseline vis-à-vis US gas, so that
imported gasoline with certain parameter levels above the
statutory baseline could not be directly sold in the US
market compared to gasoline having the same qualities
produced in a US refinery which could be sold in the US
market with only the condition that it must conform with the
refiner’s individual baseline)
The Appellate Body in this case held that imported and
domestic gasoline were like products and as such, the
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applied where there is data on administrative, selling and

Gasoline Rule (because it prevented imported gasoline from general costs and profits for only 1 other exporter or
benefitting from the same favorable sales conditions given producer, and that a state may exclude sales by other
to domestic gasoline with respect to how baseline is exporters or producers not made in the ordinary course of
established) resulted in a less favorable treatment accorded trade to calculate the amount for profits under the Anti-
to imported gasoline without any concern for the air quality Dumping Agreement.
effect and the enforcement of such a rule. 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.

EUROPEAN COMMUNITIES – ANTI DUMPING

DUTIES ON IMPORTS OF COTTON-TYPE BED
LINEN FROM INDIA (2003)

India requested consultations with the European

Communities (EC) about a council regulation on imports of
cotton-type bed-linen from India. India claimed that the EC
initiated anti-dumping proceedings against imports of
cotton-type bed-linen from India by publishing a notice of
initiation in Sept. 1996 and imposed provision anti- dumping
duties by a council regulation in June of 1997 as well as
definitive duties based on the said council regulation in
November of 1997. India averred that the EC’s acts of
initiation, determination of dumping and injury and its
explanations for the said acts are not in accordance with the
WTO law and that it violated articles of the Anti- Dumping
Agreement and the GATT of 1994.

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.

The Appellate Body affirmed the panel’s finding that the

practice of zeroing (comparing the foreign domestic price of
the product with the member state’s import price of the
same product, adjusted for transportation and handling
costs) when establishing the existence of margins of
dumping is inconsistent with the Anti-Dumping Agreement.
However, it reversed the panel’s findings that the method of
calculating amounts for administrative, selling and general
costs in the Anti-Dumping Agreement may be

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