Plete

“It is inconceivable that the law of humanity should ever lack for a tribunal.
Where law exists, a court

PUBLIC INTERNATIONAL LAW (A.Y. 2018- will rise. Thus, the Court of humanity…will never adjourn.” -Atty General v. Eichmann, District Court of
2019, EH 402) Jerusalem, 1961
3.10. TERMINATION AND WITHRDAWAL ................... 61

Table of Contents
IV. Actors in the International Legal System....................... 65
I.Foundation and Structure of International Law ................ 2
4.1. THE STATE .......................................................... 65
1.1 A BRIEF HISTORY OF INTERNATIONAL LAW ....... 2
4.2. INTERNATIONAL ORGANIZATIONS ............... 77
1.2 THE STRUCTURES OF INTERNATIONAL LAW....... 2
4.3. INDIVIDUALS ..................................................... 77
1.3 BASIS OF INTERNATIONAL OBLIGATION.............. 2
V. Jurisdiction ...................................................................... 81
1.4 THE RELATIONSHIP BETWEEN INTERNATIONAL
LAW AND NATIONAL LAW ............................................ 3 5.1. JURISDICTION TO PRESCRIBE ............................... 81
1.5. THE ISSUE OF ENFORCEMENT IN 5.2. JURISDICTION TO ENFORCE ................................ 108
INTERNATIONAL LAW ................................................. 10 VI. Immunity from National Jurisdiction and Diplomatic
1.6 THE ALLEGED INADEQUACY OF Protection........................................................................ 10808
INTERNATIONAL LAW IN THE 21ST CENTURY ...... 100 6.1. STATE IMMUNITY ....................................... 10808
II. Sources of International Law ........................................ 100 6.2. IMMUNITIES OF STATE REPRESENTATIVES
2.1. ART 38 OF THE STATUTE OF THE …………………………………………………….125
INTERNATIONAL COURT OF JUSTICE ...................... 100 6.3. THE ACT OF STATE DOCTRINE ................... 1355
2.2. CONVENTIONS AS A LEGAL SOURCE ................. 11 6.4. IMMUNITY FROM ENFORCEMENT ........... 13838
2.3. CUSTOM AS A SOURCE .......................................... 12 6.5. DIPLOMATIC IMMUNITIES AND PROTECTION
2.4.GENERAL PRINCIPLES AS A SOURCE OF LAW ... 28 …………………………………………………….139
39
2.5 JUDICIAL DECISIONS .............................................. 40
VII. State Responsibility ................................................... 1488
2.6. SCHOLARLY CONTRIBUTIONS AND THE
INTERNATIONAL LAW COMMISSION (ILC) ............... 42 7.1. THE CORE PRINCIPLES AND ELEMENTS OF
STATE RESPONSIBILITY ........................................... 1488
2.7 UNILATERAL STATEMENTS................................... 42
7.2. ATTRIBUTION OF CONDUCT ..................... 15252
2.8. HIERARCHY OF SOURCES ..................................... 45
VIII. International Regulation of the Use of Force .......... 1622
2.9. NON-BINDING COMMITMENTS AND THE
CONCEPT OF “SOFT LAW” INSTRUMENTS ................ 49 IX. The Law of Armed Conflict.......................................... 165
III. The Law of Treaties ....................................................... 49 X. The UN System and the 6 Principal Organs of the United
3.1. TREATY AS A CONCEPT UNDER Nations ............................................................................ 16666
INTERNATIONAL LAW ................................................. 49
3.2. THE AUTHORITY TO CONCLUDE A TREATY...... 53
3.3. TREATIES BETWEEN STATES AND
INTERNATIONAL ORGANIZATIONS ........................... 54
3.4. CONSENT TO BE BOUND ....................................... 54
3.5. ENTRY INTO FORCE AND OBLIGATIONS IN THE
INTERIM PERIOD ........................................................... 55
3.6. VALIDITY ................................................................. 56
3.7. RESERVATIONS....................................................... 56
3.8. INTERPRETATION ................................................... 59
3.9. AMENDMENTS AND MODIFICATIONS ................ 60
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 1
“It is inconceivable that the law of humanity should ever lack for a tribunal. Where law exists, a court
2019, EH 402) Jerusalem, 1961
I  also known as general international law;

Foundation and Structure of  horizontal;
International Law  governs the relationship of states
 concerns the content of international obligations
(ex.: the delimitation and title to territory, the
criteria for statehood, the recognition of new states
1.1 A BRIEF HISTORY OF INTERNATIONAL LAW
and governments, the use of force, the conduct of
Public International Law—deals with legal issues of armed hostilities, the neutrality in times of armed
concern to more than one State; traditionally defined as the conflict, fundamental principles of treaty law, the
system of law that regulates the interrelationship of legal principles on state responsibility.)
sovereign states and their rights and duties with regard to
 seeks to ensure that states can pursue their
one another.
different and separate interests (whatever that may
As differentiated from private international law, be) in a way that respects the sovereignty of other
which consists of national laws that deal with states
conflicts of law and establish rules for the  relatively stable and not subject to much change
treatment of cases that involve a foreign element.
② International Law of Cooperation
Q: What makes PIL unique and different?
 concerns the form; the manner by which
 Unlike a domestic legal system, PIL has NO sovereignty is exercised
legislative or executive branch  matters that are not inherently of interest to the
 Although there are international courts, but there is State
NO mandatory and well-established procedure for  matters which became an international concern
the settlement of disputes. through the adoption of a treaty
 It is a decentralized system; it is primarily up to  promotion of “societal goals (ex. International
the legal subjects themselves to create, interpret, human rights law, international environmental law,
and enforce the law. international economic law, ICC, Treaty on the
Proliferation of Nuclear Weapons)
Atty Pandi: For brief history of international law, this is  not binding (UK can leave the EU and there will
the only thing I’m interested in, and this is the only thing be no right to violate)
you must take note: International law as we know it today  optional; states decide for themselves whether to
began in Europe, when the European nations consolidated turn a matter previously dealt with in national law
themselves. We trace the “birth” of PIL to the 1648 Treaty into a matter in international law
of Westphalia which brought an end to the Thirty Years’
War that ravaged Europe. 1.3 BASIS OF INTERNATIONAL OBLIGATION
State sovereignty v. International Legal Obligations
1648 Peace of Westphalia
Q: Why is international law binding?
 sovereign states are the primary actors in the
international system The existence of a plurality of sovereign states justifies the
 sovereign states enjoy equal legal status binding character of international law. It is not a matter of
 sovereign states enjoy equal protection from choosing between state sovereignty and international legal
outside intervention obligations bur rather, international obligations are the
consequence of sovereignty.
1.2 THE STRUCTURES OF INTERNATIONAL LAW
Q: What is the basis of international law?
Two structures of international law
Atty. Pandi: There is no basis. We just want to leave
① International Law of Co-existence peacefully. If you want to exercise sovereignty, respect
the sovereignty of others. We can co-exist.
2019, EH 402) Jerusalem, 1961
Q: But what is to stop a state from simply ignoring it is because it is

international law when proceeding upon its chosen “translated” into the legal
policy? Can a legal rule against aggression, for system through the adoption
example, prevail over political temptations? of national legislation
international law prevails in
There is NO international police force to prevent the case of conflict
such an action, but there are a series of other
considerations closely bound up with the character of In practice, each legal system determines how the norms of
international law which will cause a potential aggressor to other legal systems are taken into account. The extent to
forbear. which international law is integrated into a national legal
system depends on the constitutional approach of the state
1) There is the element of RECIPROCITY—
in question. In the Philippines, we are guided by:
states often do NOT pursue one particular
course of action which might bring them short-
term gains, because it could disrupt the
RECIPROCITY among states which could Sec. 2, ART II, 1987 Constitution,
bring long-term disadvantages.
The Philippines renounces war as an instrument of national
Example: States everywhere protect the policy, adopts the generally accepted principles of
immunity of foreign diplomats for not international law as part of the law of the land and adheres
doing so would place their own officials to the policy of peace, equality, justice, freedom,
abroad at risk. cooperation, and amity with all nations.
2) Another factor is REPUTATION, or the PHILIP MORRIS v. COURT OF APPEALS,

advantages or rewards that may occur from
GR No. 91332, 16 July 1993
observance of international law. It is an
appeal to public opinion for support and all
Facts: Petitioner alleged that Fortune Tobacco had no
states employ this tactic. right to manufacture and sell cigarettes bearing the
Example: An obedient state may trademark “MARK” in contravention of Sec. 22 of the
encourage friendly or neutral state to side Trademark Law. Petitioners also invoke ART 2 of the
with it when involved in a conflict, rather Paris Convention, which protects trademarks as a
than that state’s opponent. matter of treaty obligation, “with no condition as to the
possession of a domicile or establishment in the
(Shaw, Malcom. “International Law,” 6th ed. pp. 7-8) country where protection is claimed,” and which was
ratified through Resolution No. 69 of the Senate, thus
1.4 THE RELATIONSHIP BETWEEN INTERNATIONAL having the force and effect of law. Thus they
LAW AND NATIONAL LAW conclude, that actual use of trademarks is NOT an
TWO APPROACHES indispensable element as ART 2 of the convention
MONISM DUALISM clearly states that there is “no condition.”
holds that international law international law and Private respondent Fortune Tobacco Corp.,
and national law essentially national law are two meanwhile, asserts that the trademark “MARK” has
form a single legal order or separate legal systems that been authorized by the BIR and is a common word
a set of mutually operate independently which can’t be exclusively appropriated.
intertwined legal orders
that are presumed to be Ruling: The Supreme Court cited Sec. 2, 2-A of the
coherent Trademark Law which states:
international law can be Neither of the two legal
applied directly in the systems creates rules for the What are registerable. Trademarks...owned by
national legal system of other, and if international persons or corporations domiciled in the
states law is applied domestically Philippines, provided that said trademarks are
actually in use in commerce or services not less
than
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the twobymonths
books in Akehurst,
Henriksen, the Philippines,
and Shawbefore
3 the
time the application for registration is filed.
2019, EH 402) Jerusalem, 1961
Philippines, provided that said trademarks are governed by the Republic of the Philippines—United
actually in use in commerce or services not less States Extradition Treaty of Nov. 13, 1994.
than two months in the Philippines, before the Issue: Whether respondent can validly ask for copies of
time the application for registration is filed. pertinent documents while the application for
Municipal law on trademarks regarding the requirement extradition is still undergoing process?
of actual use...must subordinate an international
agreement inasmuch as the apparent clash is being Ruling: INTERNATIONAL LAW; RULE OF PACTA
decided by a municipal tribunal. SUNT SERVANDA; CONSTRUED. — The
The fact that international law is made part rule of pacta sunt servanda, one of the oldest and most
of the law of the land, does NOT imply the primacy fundamental maxims ofinternational law, requires the
of international law over national law in the parties to a treaty to keep their agreement therein in
municipal sphere. good faith.
The DOCTRINE OF INCORPORATION only
gives rules of international law a stand equal NOT DOCTRINE OF INCORPORATION; WHEN
superior to national legislative enactments. APPLIED; CASE AT BAR. — Under the
doctrine of incorporation, rules of international law
Atty Pandi: So if there is a dispute between form part of the law of the land and no further
international law and municipal or domestic law, which legislative action is needed to make such rules
will prevail? It actually depends on where your raise your applicable in the domestic sphere.
case. If a dispute is raised before the International Court of The doctrine of incorporation is applied
Justice, or other international tribunals, international law whenever municipal tribunals (or local courts) are
would prevail (ART 27, Vienna Convention on the Law of confronted with situations in which there appears to be
Treaties); but if a dispute is raised before the domestic or a conflict between a rule of international law and the
national courts, then almost always, the domestic courts provisions of the constitution or statute of the local
will favour our own domestic laws. state.
Efforts should first be exerted to harmonize
them, so as to give effect to both since it is to be
SEC. OF JUSTICE v. LANTION, GR No. 139465,
presumed that municipal law was enacted with proper
18 January 2000
regard for the generally accepted
principles of international law in observance of the
Facts: The United States Government, on June 17,
1999, through Department of Foreign Affairs U. S. Incorporation Clause in the above-cited constitutional
provision.
Note Verbale No. 0522, requested the Philippine
In a situation, however, where the conflict is
Government for the extradition of Mark Jimenez,
irreconcilable and a choice has to be made between a
herein private respondent, to the United States. The
rule of international law and municipal law,
request was forwarded the following day by
jurisprudence dictates that municipal law should be
the Secretary of Foreign Affairs to the
upheld by the municipal courts.
Department of Justice (DOJ). Pending evaluation of the
NO PRIMACY OF INTERNATIONAL LAW
extradition documents by the DOJ, private respondent
OVER NATIONAL OR MUNICIPAL LAW. — The
requested for copies of the official extradition request
fact that international law has been made part of the
and all pertinent documents and the holding in
abeyance of the proceedings. law of the land does not pertain to or imply the
primacy of international law over national or municipal
When his request was denied for being law in the municipal sphere. The
premature, private respondent resorted to an action doctrine of incorporation, as applied in most countries,
for mandamus, certiorari and prohibition. The trial decrees that rules of international law are given equal
court issued an order maintaining and enjoining the standing with, but are not superior to, national
DOJ from conducting further proceedings, hence, the legislative enactments. Accordingly, the principle lex
instant petition. posterior derogat priori takes effect — a treaty may
The US and Philippines extradition process is repeal a statute and a statute may repeal a treaty. In
governed by the Republic of the Philippines—United
States
EuniceExtradition Treaty
Soriano Baliong of Nov.
| based 13,
on Atty. 1994.syllabus, discussions, slides, and thestates
Pandi’s where
books by the constitution
Henriksen, Akehurst, and is the 4highest
Shaw
law of the
2019, EH 402) Jerusalem, 1961
states where the constitution is the highest law of the EXTRADITED ARE PRESUMED TO BE FLIGHT
land, such as the Republic of the Philippines, both RISKS; CASE AT BAR. — Persons to be extradited
statutes and treaties may be invalidated if they are in are presumed to be flight risks. This prima
conflict with the constitution. facie presumption finds reinforcement in the experience
of the executive branch: nothing short of confinement
EXTRADITION TREATY; DOES NOT PRECLUDE can ensure that the accused will not flee the jurisdiction
APPLICATION OF DUE PROCESS. — In the of the requested state in order to thwart their extradition
absence of a law or principle of law, we must apply the to the requesting state. The present extradition case
rules of fair play. An application of the basic twin due further validates the premise that persons sought to be
process rights of notice and hearing will not go against extradited have a propensity to flee.
the treaty or the implementing law. Neither the Treaty Indeed, extradition hearings would not even
nor the Extradition Law precludes these rights from a begin, if only the accused were willing to submit to trial
prospective extradites. Similarly, American in the requesting country. Prior acts of herein
jurisprudence and procedures on extradition pose no respondent — (1) leaving the requesting state right
proscription. In fact, in interstate extradition before the conclusion of his indictment proceedings
proceedings as explained above, the prospective there; and (2) remaining in the requested state despite
extraditee may even request for copies of the learning that the requesting state is seeking his return
extradition documents from the governor of the asylum and that the crimes he is charged with are bailable —
state, and if he does, his right to be supplied the same eloquently speak of his aversion to the processes in the
becomes a demandable right. requesting state, as well as his predisposition to avoid
them at all cost: These circumstances point to an ever-
present, underlying high risk of flight. He has
GOVERNMENT OF USA v. PURGANAN, GR No.
demonstrated that he has the capacity and the will to
148571, 17 December 2002 flee. Having fled once, what is there to stop him, given
sufficient opportunity, from fleeing a second time?
FACTS: Petitioner US government filed this Petition
for Certiorari under Rule 65 assailing the procedure
NEITHER TREATY NOR THE
adopted by the trial court of first hearing a potential
EXTRADITION LAW REQUIRE A HEARING
extraditee, Mark Jimenez, before issuing a warrant for
BEFORE ISSUING A WARRANT OF ARREST OF
his arrest under Section 6 of PD No. 1069. Petitioner
PROBABLE EXTRADITEE; REASONS; CASE AT
contended that the procedure gives Jimenez notice to
BAR. — It is significant to note that Section 6 of PD
escape and to avoid extradition. Petitioner also assailed
1069, our Extradition Law, uses the word "immediate"
the trial court's granting of Jimenez's prayer for bail,
to qualify the arrest of the accused. This qualification
which allows him to go on provisional liberty while
would be rendered nugatory by setting for hearing the
extradition proceedings are pending.
issuance of the arrest warrant. Hearing entails sending
Petitioner no longer filed a Motion for
notices to the opposing parties, receiving facts and
Reconsideration in the Extradition Court, but resorted
arguments from them, and giving them time to prepare
directly to the Supreme Court instead of the Court of
and present such facts and arguments. Arrest
Appeals to obtain relief.
subsequent to a hearing can no longer be considered
The Supreme Court allowed a direct invocation
"immediate." The law could not have intended the word
of its original jurisdiction to issue writs of certiorari to
as a mere superfluity but, on the whole, as a means of
settle once and for all the issue of bail in extradition
imparting a sense of urgency and swiftness in the
proceedings.
determination of whether a warrant of arrest should be
issued. By using the phrase "if it appears," the law
ISSUE: In extradition proceedings, are prospective
further conveys that accuracy is not as important as
extraditees entitled to notice and
speed at such early stage. The trial court is not expected
hearing before warrants for their arrest can be issued?|||
to make an exhaustive determination to ferret out the
true and actual situation, immediately upon the filing of
RULING: POLITICAL LAW; INTERNATIONAL
the petition. From the knowledge and the material then
LAW; EXTRADITION TREATY; PERSONS TO BE
EXTRADITED ARE PRESUMED TO BE FLIGHT
Eunice Soriano
RISKS; CASEBaliong | based—
AT BAR. on Persons
Atty. Pandi’s
to syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw
be extradited 5
are presumed to be flight risks. This prima
facie presumption finds reinforcement in the experience
of the executive branch: nothing short of confinement
2019, EH 402) Jerusalem, 1961
available to it, the court is expected merely to get a GOV. OF HONGKONG v. OLALIA, JR., GR No.
good first impression — a prima facie finding — 153675, 19 April 2007
sufficient to make a speedy initial determination as
regards the arrest and detention of the accused. FACTS: The Philippines and the Special
Moreover, the law specifies that the court sets a hearing Administrative Region of Hong-Kong signed an
upon receipt of the answer or upon failure of the Agreement for the Surrender of Accused and Convicted
accused to answer after receiving the summons. Persons. Juan Antonio Munoz was charged with the
In connection with the matter of immediate offense of “accepting an advantage as agent,” among
arrest, however, the word "hearing" is notably absent others and conspiracy to defraud in the Hong-Kong
from the provision. Evidently, had the holding of a court. Thus, HK requested for the provisional arrest of
hearing at that stage been intended, the law could have private respondent. The RTC granted an Order of
easily so provided. It also bears emphasizing at this Arrest. Meanwhile, private respondent filed a petition
point that extradition proceedings are summary in for bail. The trial court granted the request which was
nature. Hence, the silence of the Law and the Treaty opposed by petitioner.
leans to the more reasonable interpretation that there is
no intention to punctuate with a hearing every little step ISSUE: Whether a potential extraditee has the right to
in the entire proceedings. bail?
INTERNATIONAL LAW; EXTRADITION TREATY; RULING: Pacta sunt servanda demands that the
PROPER PROCEDURE TO BE FOLLOWED BY Philippines honors its extradition treaty, but it does not
THE JUDGE UPON RECEIPT OF A PETITION FOR mean that it should diminish rights to liberty
EXTRADITION. — Since this is a matter of first guaranteed by our Constitution and international
impression, we deem it wise to restate the proper conventions.
procedure: Upon receipt of a petition for extradition This Court cannot ignore the trend in
and its supporting documents, the judge must study international law: 1) the growing importance of the
them and make, as soon as possible, a prima facie individual person in public international law, who in
finding whether (a) they are sufficient in form and the 20th century has gradually gained recognition; 2) the
substance, (b) they show compliance with the higher value given to human rights; 3) the duty of
Extradition Treaty and Law, and (c) the person sought countries to observe universal human rights in fulfilling
is extraditable. At his discretion, the judge may require their treaty obligations; and 4) the duty to balance
the submission of further documentation or may rights of the individual and law on extradition.
personally examine the affiants and witnesses of the The former concept that subjects of
petitioner. If, in spite of this study and examination, international law are limited only to states was eroded.
no prima facie finding is possible, the petition may be Example, the Nuremberg and Tokyo trials after World
dismissed at the discretion of the judge. On the other War II had individual defendants for crimes against
hand, if the presence of a prima facie case is humanity; Serbian leaders were persecuted for war
determined, then the magistrate must immediately issue crimes and crimes against humanity in former
a warrant for the arrest of the extraditee, who is at the Yugoslavia.
same time summoned to answer the petition and to On a more positive note, both international
appear at scheduled summary hearings. Prior to the organizations and states gave recognition and
issuance of the warrant, the judge must not inform or importance to human rights. Thus, on December 10,
notify the potential extraditee of the pendency of the 1948, the UN General Assembly adopted the Universal
petition, lest the latter be given the opportunity to Declaration of Human Rights in which the right to life,
escape and frustrate the proceedings. In our opinion, liberty, and all the other fundamental rights of every
the foregoing procedure will "best serve the ends of person were proclaimed. While not a treaty, the
justice" in extradition cases. principles contained in the Declaration are now
recognized as customarily binding upon the members
of the international community.
The Philippines, along with the other members
2019, EH 402) Jerusalem, 1961
of the family of nations, committed to uphold the respondent presented evidence to show that he is not a
fundamental human rights as well as value the worth flight risk. Consequently, this case should be remanded
and dignity of every person has the to the trial court to determine whether private
responsibility of protecting and promoting the respondent may be granted bail on the basis of “clear
right of every person to liberty and due process, and convincing evidence.”
ensuring that those detained or arrested can participate
in the proceedings before a court, to enable it to decide CATHAY PACIFIC AIRWAYS v. COURT OF
without delay on the legality of the detention and order
APPEALS, 219 SCRA 520
their release if justified. In other words, the Philippine
authorities are under obligation to make available to Facts: Tomas Alcantara, a first class passenger of two
every person under detention such remedies which flights one from Manila to Hongkong, and another from
safeguard their fundamental right to liberty. These Hongkong to Jakarta complained that when he reached
remedies include the right to be admitted to bail. While Jakarta, his luggage was left in Hongkong. After 24 hrs
this Court in Purganan limited the exercise of the right of waiting, the luggage still was not delivered. Cathay
to bail to criminal proceedings, however, in light of the Pacific required that it must be picked up by an officer
various international treaties giving recognition and of the Philippine Embassy.
protection to human rights, particularly right to life Thus, Alcantara filed for temperate, moral, and
and liberty, a re-examination of this Court's ruling exemplary damages, attorney’s fees, and costs. This
in Purganan is in order. was affirmed by the CFI and the CA.
In Mejoff v. Director of Prisons and Chirskoff Cathay Pacific maintains there was an error
v. Commission of Immigration, this Court ruled that by the trial court and CA in failing to apply the Warsaw
foreign nationals against whom no formal criminal Convention on the liability of a carrier to its
charges have been filed may be released on bail passengers.
pending the finality of an order of deportation. If bail
can be granted in deportation cases, we see no reason Issue: Can Cathay Pacific be absolved from liability by
why it should not also be allowed in extradition cases. virtue of the Warsaw Convention which expressly
Considering that the Universal Declaration of Human limits the liability of carriers.
Rights applies to deportation cases, there is no reason
why it cannot be invoked in extradition cases. After Ruling: Although the Warsaw Convention has the
all, both are administrative proceedings where the force and effect of law, the convention does NOT
innocence or guilt of the person detained is not in issue. operate as exclusive enumeration of the instances for
Extradition is the right of a foreign power, created by declaring a carrier liable for breach of contract of
treaty, to demand the surrender of one accused or carriage or as an absolute limit of the extent of that
convicted of a crime within its territorial jurisdiction, liability. It does NOT preclude the application of the
and the correlative duty of the other state to surrender Civil Code and other pertinent laws. A carrier cannot
him to the demanding state. Even if the potential be absolved from liability if there is wilful misconduct.
extraditee is a criminal, an extradition proceeding is not ART 25 of the Convention states, “carrier shall
by its nature criminal, for it is not punishment for a NOT be entitled to avail...of the provisions...which
crime, even though such punishment may follow exclude his liability if damage is caused by wilful
extradition. It is sui generis tracing its existence misconduct...in accordance with the law of the Court to
wholly to treaty obligations between different nations. which the case is submitted, is considered to be
It is not a trial to determine the guilt or innocence of the equivalent to wilful misconduct.
potential extraditee. Nor is it a full-blown civil action, Thus, the two instruments were intended to be
but one that is merely administrative in character. read and interpreted together.
While our extradition law does not provide for
the grant of bail to an extradite, however, there is no
provision prohibiting him or her from filing a motion
for bail, a right to due process under the Constitution.
In this case, there is no showing that private
respondent presented evidence to show that he is not a
flight risk.
Eunice Consequently,
Soriano this
Baliong | based on case shouldsyllabus,
Atty. Pandi’s be remanded
discussions, slides, and the books by Henriksen, Akehurst, and Shaw 7
to the trial court to determine whether private
respondent may be granted bail on the basis of “clear
and convincing evidence.”
2019, EH 402) Jerusalem, 1961
ICHONG v. HERNANDEZ, GR No. L-7995, May GONZALES v. HECHANOVA, GR No. L-21897,

31, 1957, 101 Phil 1156 October 22, 1963
FACTS: RA 1180 “An Act to Regulate the Retail FACTS: Executive Secretary Rufino G. Hechanova
Business” was passed. The law prohibited against authorized the importation of 67,000 tons of foreign
persons, not citizens of the Philippines and against rice purchased from private sources. Petitioner Ramon
associations, partnerships, or corporations, the capital Gonzales, a rice planter, avers that Hechanova acted
of which are NOT wholly owned by citizens of the withour or in excess of jurisdiction because RA 3452
Philippines, from engaging directly or indirectly in allegedy repealed RA 2207 which explicitly prohibits
retail trade. importation of rice and corn.
Petitioner alleged the law is unconstitutional as As a defense, respondent Hechanova cites
it is a denial of equal protection and a deprivation of contracts with Vietnam and Burma that should prevail
property without due process. Moreover petitioner reasoning that when there is inconsistency between
alleged that the law violated the Philippines treaty domestic laws and executive agreements entered into
obligations under the Charter of the UN and the by the President with foreign states, the latter should
Universal Declaration of Human Rights. prevail as they are acts of the Executive which the
courts cannot validly interfere with.
ISSUE: Does RA 1180 violate the Philippines’ treaty
obligations under the UN Charter and the UDHR? ISSUE: Are the contracts with Vietnam and Burma in
the nature of Executive Agreements to warrant the
RULING: INTERNATIONAL TREATIES AND Court’s non-intervention?
OBLIGATIONS NOT VIOLATED BY REPUBLIC
ACT No. 1180; TREATIES SUBJECT TO RULING: PRESIDENT MAY NOT, BY
QUALIFICATION OR AMENDMENT BY EXECUTIVE AGREEMENT, ENTER INTO A
SUBSEQUENT LAW. — The law does not violate TRANSACTION WHICH IS PROHIBITED BY
international treaties and obligations. The imposes no STATUTES ENACTED PRIOR THERETO. —
strict or legal obligations regarding the rights and Although the President may, enter into executive
freedom of their subjects (Jans Kelsen, The Law of the agreements without previous legislative authority, he
United Nations, 1951 ed., pp. 29-32), and the may not, by executive agreement, enter into a
Declaration of Human Rights contains nothing more transaction which is prohibited by statutes entered prior
than a mere recommendation, or a common standard of thereto.
achievement for all peoples and all nations. The Treaty
MAIN FUNCTION OF EXECUTIVE IS TO
of Amity between the Republic of the Philippines and
ENFORCE LAWS ENACTED BY CONGRESS,
the Republic of China of April 18, 1947 guarantees
NOT TO DEFEAT SAME. — Under
equality of treatment to the Chinese nationals "upon the
the Constitution, the main function of the Executive
same terms as the nationals of any other country". But
is to enforce laws enacted by Congress. The former
the nationals of China are not discriminated against
may not interfere in the performance of the
because nationals of all other countries, except those of
legislative powers of the latter, except in the exercise
the United States, who are granted special rights by the
of the veto power. He may not defeat legislative
Constitution, are all Prohibited from engaging in the
enactments that have acquired the status of laws,
retail trade. But even supposing that the law infringes
by indirectly repealing the same through an
upon the said treaty, the treaty is always subject to
executive agreement providing for the performance
qualification or amendment by a subsequent law
of the very act prohibited by said laws.
(U.S. vs. Thompson, 258, Fed. 257, 260), and the same
may never curtail or restrict the scope of the police STATUTORY CONSTRUCTION; THEORY THAT
power of the State (Palston vs. Pennsylvania 58 L. ed., IN A CONFLICT BETWEEN TREATY AND
539. STATUTE, THE LATEST IN POINT OF TIME
SHALL PREVAIL, NOT APPLICABLE TO
EXECUTIVE AGREEMENTS; CASE AT BAR. —
2019, EH 402) Jerusalem, 1961
The American theory that in the event of conflict changes of national policy detail carrying out well-
between a treaty and a statute, the one which is latest in and those involving established national policies
point of time shall prevail, is not applicable to the case international arrangements and traditions and those
at bar, for respondents not only admit, but, of a permanent character involving arrangements of a
also, insist that the contracts in question are not usually take the form of more or less temporary
treaties. Said theory may be justified upon the ground treaties. nature usually take the form
that treaties to which the United States is a signatory of executive agreements.
require the advice and consent of the Senate, and, treaties which require The following categories of
hence, of a branch of the legislative department. No presidential ratification agreements have been
such justification can be given as regards executive and Senate concurrence: treated as executive
agreements not authorized by previous legislation, a) Status of forces agreements:
without completely upsetting the principle of separation agreement/Visiting forces air services agreement,
of powers and the system of checks and balances which agreement cultural agreement, defense
are fundamental in our constitutional set up and that of b) Comprehensive free cooperation agreement,
the United States. trade agreement, which go mutual logistics support
beyond what the President agreement, scientific and
COURTS; JURISDICTION; POWER TO is allowed to undertake technological cooperation
INVALIDATE TREATIES. — The Constitution of the unilaterally under Article agreement, economic
Philippines has clearly settled the question of whether VI, Section 28(2) of the cooperation agreement,
an international agreement may be invalidated by our Constitution and the agreement on gainful
courts in the affirmative, by providing in Section 2 of Customs and Tariff Code c) employment of spouses of
Article VIII thereof, that the Supreme Court may not be Agreement on the members of diplomatic and
deprived "of its jurisdiction to review, revise, reverse, avoidance of double consular missions;
modify or affirm on appeal, certiorari, or writ of error, taxation, since tax tourism cooperation
as the law or the rules of court may provide, final exemptions can be made agreement,
judgments and decrees of inferior courts in (1) all cases only under the authority of investment promotion and
in which the constitutionality or validity of any treaty, Congress protection agreement,
law, ordinance, or executive order or regulation is in d) Agreement which labor promotion and
question." In other words, our Constitution authorizes establishes the headquarters protection agreement,
the nullification of a treaty, not only when it conflicts of an international maritime agreement, waiver
with the fundamental law, but, also when it runs organization, with of visa requirement
counter to an act of Congress. concomitant grant of agreement, and trade
immunities to the cooperation/facilitation
Atty Pandi: Distinction between treaties and executive organization and its agreements, such as those
agreements has no bearing in the international law sphere, officials and staff among ASEAN countries
as both are covered by the term “treaty,” but this is not so e) Agreement on the
in the domestic sphere. In our national laws, treaties and transfer of sentenced
executive agreements are treated differently. How then do persons, since the exercise
we distinguish between a treaty and an executive of criminal jurisdiction is
agreement? based on the territoriality
principle; and
TREATY EXECUTIVE f) Other agreements,
AGREEMENT “multilateral conventions,
international agreements similar to treaties except involving political issues or
entered into by the that they do not require changes of national policy
Philippines which require legislative concurrence or involve international
legislative concurrence after arrangements of a
executive ratification permanent character,”
International agreements international agreements pursuant to the Commission
involving political issues or embodying adjustments of of Customs ruling.
2019, EH 402) Jerusalem, 1961
In sum: binding agreements, cancelling state visits,

or breaking off diplomatic contact)
 The scope of international law is determined by
the inadequacy of national law. Atty Pandi: Non-legal incentives often move states
 The application of international law in national toward compliance with their international legal
law is governed by the constitutional principles of obligations.
each state and thus varies substantially.
 Most states will apply customary international law 1.6 THE ALLEGED INADEQUACY OF
domestically. INTERNATIONAL LAW IN THE 21ST CENTURY
 Treaty-based obligations require incorporation.  There is an undeniable tension between the
existing state-centric system and the wider notions
 A state cannot justify a breach of its international
of justice
legal obligations with the claim that it would
breach its national laws if it were to comply. (ART  The current configuration of the world is NOT
27, Vienna Convention on the Law of Treaties) motivated by a specific desire to create a just and
equitable world or to facilitate the realization of
1.5. THE ISSUE OF ENFORCEMENT IN wider “community” goals.
INTERNATIONAL LAW  International law is derived from a desire to find
Enforcement of international law remains a challenge, but an organizing principle that could uphold
is NOT totally absent. international order and stability in world affairs.
1) Resort to the UN Security Council—an aggrieved Atty Pandi: Remember, international law’s primary
state may seek redress from the Council but purpose is NOT justice, it is order. When balancing
enforcement by the Security Council is rare. notions of “justice” and “order” international law often
Primarily, it was NOT set up to enforce prioritizes the latter. Why? Because it is often hard to
international law but to uphold international peace realize broader societal goals in a society without order
and security and the Council is therefore more and stability.
influenced by political and strategic considerations
than by law.
 It may impose a variety of forms of II
sanctions Sources of International Law
 It may establish peacekeeping
operations in the form of deployment
of UN personnel to an area of dispute 2.1. ART 38 OF THE STATUTE OF THE
INTERNATIONAL COURT OF JUSTICE
 It may establish criminal tribunals to
The classical attempt at listing the sources of international
prosecute serious international crimes
law is found in ART 38 of the ICJ Statute:
2) Self help measures—an aggrieved state is left with
no choice but to adopt its own measures in (1) The Court, whose function is to decide in accordance
response to another state’s violation of with international law such disputes as are submitted to it,
international law. shall apply?
 A state may employ proportionate and
non-forceful countermeasures and breach a) international conventions, whether general or
its international obligations towards a particular, establishing rules expressly recognized
delinquent state by the contesting states;
 If the breach relates to a treaty, a State
may suspend its own performance of the b) international custom as evidence of a general
treaty. practice accepted as law
 Adopt measures of retorsion that are
c) the general principles of law recognized by
unfriendly but lawful. (Ex.: halting foreign
civilized nations
aid, suspending trade, severing non-legally
2019, EH 402) Jerusalem, 1961
d) subject to the provisions of ART 59, judicial the Proliferation of Nuclear Weapons
decisions and the teachings of the most highly SOURCE 2:
qualified publicists of the various nations, as
subsidiary means for the determination of the law a. Public declarations of heads of governments
and statements of various states in the UN
(2) This provision shall not prejudice the power of the
General Assembly
Court to decide a case ex aqueo et bono, if the parties
agree thereto. b. Abandonment of certain states of their
nuclear proliferation programs (Brazil,
Q: Is ART 38 of the ICJ Statute an exclusive list of the South Africa, and Argentina)
sources of international law? c. Establishment of nuclear-free zones in
Atty Pandi: It is not an exclusive listing of sources. various regions of the world
Because unilateral declarations of Presidents are also d. UN General Assembly Resolutions
binding on specific circumstances, as you will see later. e. General Assembly
f. Abandonment of certain states of their
Atty Pandi: Which are “primary” and which are
nuclear proliferation programs (Brazil,
“secondary” sources?
South Africa, and Argentina)
PRIMARY SOURCES: a) conventions, b) customary law, g. Establishment of nuclear-free zones in
and c) general principles various regions of the world
h. UN General Assembly Resolutions
SECONDARY SOURCES: judicial decisions and
scholarly contributions
Atty Pandi: Which are “law creating sources” and 2.2. CONVENTIONS (TREATIES) AS A LEGAL SOURCE
which are “law identifying?” Adoption of a convention (treaty) is the most formal and
direct way for states to create rights and obligations under
LAW CREATING SOURCES (they create new rights and international law.
obligations): a) international conventions, b) international
custom, c) general principles of law  The most important legal sources within a given
area of international law are often treaty-based.
LAW IDENTIFYING (they merely clarify or apply the
 Consent—the legal basis of treaty-blased
content of existing law): a) judicial decisions and b)
obligations
teachings, of the most highly qualified publicists
 Effect of a treaty: expressed in the principle pacta
FORMAL SOURCES MATERIAL SOURCES sunt servanda (states are bound to honour their
treaty-based obligations)
Confer upon the rules an Comprise the actual content
obligatory character of the rules
Embody the constitutional Incorporate the essence or LAW-MAKING CONTRACT TREATIES
mechanism for identifying subject-matter of the TREATIES (Bilateral Treaties)
the law regulations (Multilateral Treaties)
Intended to have universal Apply only as between two
PROBLEMATIQUE or general relevance or a small number of states
Agreements whereby states Often governs a particular
Identify which are the formal sources and which are the elaborate their perception of issue of mutual interest such
material sources: international law upon any as the construction of join
given topic or establish new infrastructure
1) RULE OF INTERNATIONAL LAW: States rules which are to guide
MUST NOT proliferate nuclear weapons. them for their future
2) SOURCE 1: 2018 Treaty on the Prohibition on conduct
2019, EH 402) Jerusalem, 1961
They may also declare Often resembles a contract Exception: Persistent objector—a state
existing law, or codify which has dissented from the start of that
existing customary rules custom.
Antarctic Treaty, Genocide
Convention, Vienna Exception to the exception:
Convention on Diplomatic a) But the persistent objector ONLY
Relations of 1961 applies to an emerging customary rule.
Once a rule has come into existence, it
can no longer be objected to.
CONSTITUENT TREATIES—a treaty that establishes b) Persistent objector rule does NOT
an international organization. A state that becomes a party apply to peremptory norms/jus cogens
to the constituent treaty consents to be bound by any 4) Customary legal norms need not be universal in
subsequent legal instrument adopted pursuant thereto. nature
Ex: The Charter of the United Nations 5) Customary international law may also develop
regionally between states (regional custom). The
PROBLEMATIQUE local custom is binding ONLY on the regional
states.
Identify which are CONTRACT TREATIES and Ex: In the Asylum Case, Colombia
which are LAW-MAKING TREATIES: claimed that a Latin American custom
existed which granted safe conduct from
TREATY 1: Visiting Forces Agreement its embassy in Lima, Peru, for a political
opponent of the Peruvian government.
TREATY 2: Convention of the Rights of a Child (NOTE: Regional custom came out in the
Midterm Exam.)
TREATY 3: The United Nations Charter
2.3.1. STATE PRATICE—THE OBJECTIVE

ELEMENT
2.3. CUSTOM AS A SOURCEOF INTERNATIONAL LAW
“The way things have always been done becomes the “State practice requires consistent repetition of a
way that things MUST be done.” particular behaviour.”
Two Elements of Customary International Law: Elements of State Practice:
1) State practice—objective element; followed as a 1) Consistency of practice

general practice among states  Reasonably uniform
2) Opinio Juris Sive Necessitates—subjective  Does NOT require complete consistency
element; the belief that the practice is legally  “settled practice”
binding 2) Duration of practice
 The passage of only a short period of time
Principles on Customary International Law:
is NOT necessarily, in itself, a bar to the
1) The binding nature of customary international law formation of a new rule
is implied.  Instant custom—in situations of rapid
2) Customary international law (CIL) has the ability change, state practice maybe formed in a
to adapt to changing circumstances. very short time
3) As a general rule, customary international law Ex: international reaction to the
binds ALL states, including a state that has NOT terrorist attack of the US in 9/11.
taken part in the formation of the practice. States were suddenly willing to
accept that attacks under ART 51,
2019, EH 402) Jerusalem, 1961
UN Charter, could be perpetrated 2.3.2. OPINIO JURIS—THE SUBJECTIVE

by a non-state actor. REQUIREMENT
3) Generality of practice
 Practice should include the majority of “State practice, however general and representative, only
states creates a legally binding customary rule when it is
 Practice by “states whose interests are accepted as law.”
specially affected.”
The purpose of this objective requirement is to
Q: What counts as acts of a State? differentiate between acts motivated by a desire to honor—
or create—a legal obligation than those that are not.
ALL acts may be taken into consideration:
Principles of Opinio Juris:
a) Physical acts—conduct of military operations,
seizure of foreign vessels, etc. 1) The existence of sufficient general and
b) Verbal acts—diplomatic statements, press releases, representative state practice is usually sufficient to
official manuals, and statements in international create a binding custom.
organizations (But verbal acts MUST be public;  If no general and representative practice
therefore, internal documents and memoranda do exists, however, a state initiating a new
NOT qualify as state practice) practice cannot realistically be said to have
c) Resolutions and declarations by international a belief in its legality.
organizations constitute the sum of individual acts 2) Evidence of opinion juris is usually looked for if
by the participating states and may therefore also there is reason to believe that a particular
be relevant. behaviour stems from non-legal motivations.
 If the conduct is ambiguous, proving
Atty Pandi: What about State secrets? Can they be opinion juris is a requirement
considered state practice?
THE PAQUETE HABANA CASE, 175 US 677
CASE STUDY
FACTS: At the breaking out of the recent war with
Earlier this year, a group of Chinese vessels were Spain, two fishing smacks -- the one a sloop, 43 feet
caught engaging in Muro Ami fishing in some parts of long on the keel and of 25 tons burden, and with a crew
the Great Barrier Reef in Australia. The Chinese crew of three men, and the other a schooner, 51 feet long on
manning the vessels were apprehended and criminal the keel and of 35 tons burden, and with a crew of six
cases were filed against men -- were regularly engaged in fishing on the coast
them before Australian courts. of Cuba, sailing under the Spanish flag, and each
owned by a Spanish subject, residing in Havana; her
Australia argued that the Chinese crew violated the crew, who also resided there, had no interest in the
rule prohibiting Muro Ami fishing. This rule is vessel, but were entitled to shares, amounting in all to
recognized by at least 25 states, including Australia, two thirds, of her catch, the other third belonging to her
Philippines, Indonesia, Maldives, Japan, Iceland, states owner, and her cargo consisted of fresh fish, caught by
in Central America and her crew from the sea, put on board as they were
southern Africa. caught, and kept and sold alive.
Each vessel left Havana on a coast fishing
China argued that there is no customary rule voyage, and sailed along the coast of Cuba about
prohibiting Muro Ami, as the rule is recognized only two hundred miles to the west end of the island;
by a handful of states, and does not include such states the sloop there fished for twenty-five days in the
as Russia, the states in the Middle East and Central
territorial waters of Spain, and the schooner
Europe and Central Africa.
extended her fishing trip a hundred miles farther
How would you rule on the matter? across the Yucatan Channel, and fished for eight days
on the coast of Yucatan.

2019, EH 402) Jerusalem, 1961
on the coast of Yucatan. one or two nations can create obligations for
On her return, with her cargo of live fish, along the world. Like all the laws of nations, it rests
the coast of Cuba, and when near Havana, each was upon the common consent of civilized
captured by one of the United States blockading communities. It is of force not because it was
squadron. Neither fishing vessel had any arms or prescribed by any superior power, but because
ammunition on board, had any knowledge of the it has been generally accepted as a rule of
blockade, or even of the war, until she was stopped by a conduct. Whatever may have been its origin,
blockading vessel, made any attempt to run the whether in the usages of navigation, or in the
blockade, or any resistance at the time of her capture, ordinances of maritime states, or in both, it has
nor was there any evidence that she, or her crew, was become the law of the sea only by the
likely to aid the enemy. Held that both captures were concurrent sanction of those nations who may
unlawful, and without probable cause. be said to constitute the commercial world.
Many of the usages which prevail, and which
ISSUE: Whether the United States violated a rule of have the force of law, doubtless originated in
customary international law that fishing vessels are the positive prescriptions of some single state,
exempt from capture as a prize of war. which were at first of limited effect, but which,
when generally accepted, became of universal
RULING: International law is part of our law, and obligation."
must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions The capture was unlawful and without probable
of right depending upon it are duly presented for their cause.
determination. For this purpose, where there is no At the present day, by the general consent
treaty and no controlling executive or legislative act or of the civilized nations of the world, independently
judicial decision, resort must be had to the customs of any express treaty or other public act, it is an
and usages of civilized nations, and, as evidence of established rule of international law that coast fishing
these, to the works of jurists and commentators who by vessels, with their implements and supplies, cargoes
years of labor, research, and experience have made and crews, unarmed and honestly pursuing their
themselves peculiarly well acquainted with the subjects peaceful calling of catching and bringing in fresh fish,
of which they treat. Such works are resorted to by are exempt from capture as prize of war. And this rule
judicial tribunals not for the speculations of their is one which prize courts, administering the law of
authors concerning what the law ought to be, but for nations, are bound to take judicial notice of, and to give
trustworthy evidence of what the law really is. effect to, in the absence of any treaty or other public
“Without wishing to exaggerate the importance act of their own government in relation to the matter.
of these writers or to substitute, in any case, their Ordered, that the decree of the district court be
authority for the principles of reason, it may be reversed, and the proceeds of the sale of the vessel,
affirmed that they are generally impartial in their together with the proceeds of any sale of her cargo, be
judgment. They are witnesses of the sentiments and restored to the claimant, with damages and costs.
usages of civilized nations, and the weight of their
testimony increases every time that their authority is
invoked by statesmen, and every year that passes MILITARY AND PARAMILITARY ACTIVITIES
without the rules laid down in their works being IN AND AGAINST NICARAUGE (NICARAGUA
impugned by the avowal of contrary principles." v. UNITED STATES) 1986, ICJ
Wheaton, International Law (8th ed.), § 15
To this subject in more than one aspect are FACTS: The events of this case took place after the
singularly applicable the words uttered by Mr. Justice fall of the Government of President Anastasio Somoza
Strong, speaking for this Court: Debayle in Nicaragua. A new government was
"Undoubtedly no single nation can installed. However, former supporters of the Somoza
change the law of the sea. The law is of Government and former members of the National
universal obligation, and no statute of Guard formed themselves into military groups and
one or two nations commenced a policy of armed opposition
Allegedly, the Unites States had been giving
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and theto
support books
thebycontras,
Henriksen,those
Akehurst, and Shawagainst
fighting 14 the
present Nicaraguan government...the contras have
caused considerable material damage and widespread
loss of life, and have also committed such acts as
2019, EH 402) Jerusalem, 1961
Allegedly, the Unites States had been giving If a State acts in a way prima facie incompatible with a
support to the contras, those fighting against the recognized rule, but defends its conduct by appealing to
present Nicaraguan government...the contras have exceptions or justifications contained within the rule
caused considerable material damage and widespread itself, then whether or not the State’s conduct is in fact
loss of life, and have also committed such acts as justifiable on that basis, the significance of that attitude
killing of prisoners, indiscriminate killing of civilians, is to confirm rather than to weaken the rule
torture, rape and kidnapping. [188] ...The Court has however to be satisfied
Nicaragua claims that United States has violated ART that there exists in customary international law an
2(4) of the UN Charter, and customary international opinio juris as to the binding character of such
law obligation forbidding intervention and to refrain abstention. This opinio juris may, through with all due
from the threat and use of force. Nicaragua contends caution, be deduced from...the attitude of the Parties
that the United States had effective control of the and the attitude of States towards certain General
contras, and had directed their tactics to overthrow the Assembly resolutions...The effect of consent to the
present government. text of such resolutions cannot be understood as
United States claims its acts were in exercise of merely that of a “reiteration or elucidation,” of the
its right to collective self defense, guaranteed by ART treaty commitment undertaken in the Charter. On
51 of the UN Charter. USA contended that the court the contrary, it may be understood as an acceptance
has no jurisdiction by virtue of a reservation in its of the validity of the rule or set of rules declared by
acceptance of jurisdiction under ART 36 (par.2) with the resolution by themselves.
regard to “disputes arising under a multilateral treaty,” [189] as regards with the US in particular, the
particularly the UN Charter and the Charter of the weight of an expression of opinio juris can similarly be
Organization of American States, that such treaties attached to its support of the resolution condemning
supervene and subsume customary law. USA argues aggression, ratification of the Montevideo
that even with regard to Nicaragua’s claims based on Convention...and acceptance of the principle of the
customary international law, such could not be invoked prohibition of the use of force which is contained in the
without reference to the UN Charter, which it considers declaration on principles
as the principal source of that law. In effect, USA is [190] further confirmation of the validity as
arguing that the Court could not apply in its decision, customary international law of the principle of the
any rule of customary international law, the content of prohibition of the use of force...may be found in the
which, is also the subject of a provision in multilateral fact that it is frequently referred to in statements by
treaties. State representatives as being not only a principle of
ISSUE: What constitutes customary international law? customary international law but also as fundamental or
RULING: [183] ...to be looked for primarily in the cardinal principle of such law
actual practice and opinion juris of States [207]...for a new customary rule to be formed,
[184]...the mere fact that States declare their not only must the acts concerned “amount to a settled
recognition of certain rules is not sufficient for the practice,” but they must be accompanied by the opinio
Court to consider these as being part of customary juris sive necessitates...the States taking such action or
international law, and as applicable as such to those other States in a position to react to it, must have
States behaved so that their conduct is “evidence of a belief
[186] ...The Court does not consider that, for a that this practice is rendered obligatory by the existence
rule to be established as customary, the corresponding of a rule requiring it.”
practice must be in absolutely rigorous conformity with
the rule. It is sufficient that the conduct of States
should, in general, be consistent with such rules, and ANGLO NORWEGIAN FISHERIES CASE (UK v.
that instances of State conduct inconsistent with a given NORWAY) 1951, ICJ
rule should generally have been treated as breaches of
that rule, not as indications of the recognition of a new FACTS: The coastal zone concerned in the dispute is
rule generally have been treated as breaches of that of a distinctive configuration. Its length as the crow
rule, not as indications of the recognition of a new rule. flies exceeds 1,500 kilometres. Mountainous along its
whole length, very broken fjords and bays, dotted with
countless islands, islets and reefs (certain of which
form a continuous archipelago known as the
skjaergaard, "rock rampart"), the coast does not
constitute, as it does in practically all other countries, a
clear dividing line between land and sea. The land
2019, EH 402) Jerusalem, 1961
countless islands, islets and reefs (certain of which Nicaragua jurisprudence) or (2) because they believed
form a continuous archipelago known as the that the said rule did not possess the character of
skjaergaard, "rock rampart"), the coast does not customary law.
constitute, as it does in practically all other countries, a [p.131]“In these circumstances the Court
clear dividing line between land and sea. The land deems it necessary to point out that although
configuration stretches out into the sea and what really the ten-mile rule has been adopted by certain
constitutes the Norwegian coastline is the outer line of States both in their national law and in their
the land formations viewed as a whole. Along the treaties and conventions, and although certain
coastal zone are situated shallow banks which are very arbitral decisions have applied it as between
rich in fish. These have been exploited from time these States, other States have adopted a
immemorial by the inhabitants different limit. Consequently, the ten-mile rule
of the mainland and of the islands: they derive their has not acquired the authority of a general rule
livelihood essentially from such fishing. of international law.”
In past centuries British fisherman had made II. THE PERSISTENT OBJECTOR. The Court in
incursions in the waters near the Norwegian coast. As a its judgment held that even if a customary law rule
result of complaints from the King of Norway, they existed on the aforementioned ten-mile rule,
abstained from doing so at the beginning of the 17th [p.131]“…the ten-mile rule would appear to be
century and for 300 years. But in 1906 British vessels inapplicable as against Norway inasmuch as
appeared again. These: were trawlers equipped with she has always opposed any attempt to apply it
improved and powerful gear. The local population to the Norwegian coast.”
became perturbed, and measures were taken by Norway In this case, the Court appears to support the idea that
with a view to specifying the limits within which an existing customary law rule would not apply to a
fishing was prohibited to foreigners. Incidents State if (1) it objected to the application of the rule to
occurred, became more and more frequent, and on July itself (2) at the initial stages and (3) in a consistent
12th. 1935 the Norwegian Government delimited the manner. The Anglo Norwegian Fisheries Case, thus,
Norwegian fisheries zone by Decree. supports the Asylum Case (Peru vs Colombia) in
Negotiations had been entered into by the two articulating what we now call the persistent objector
Governments; they were pursued after the Decree was rule.
enacted, but without success. A considerable number of a. Initial objection. The Court pointed out that the
British travellers were arrested and condemned in 1948 Norwegian Minister of Foreign Affairs, in 1870, stated
and 1949. It was then that the United Kingdom that, “in spite of the adoption in some treaties of the
Government instituted proceedings before the Court. quite arbitrary distance of 10 sea miles, this distance
would not appear to me to have acquired the force of
ISSUE: Does customary international law allow the international law. Still less would it appear to have any
length of a baseline drawn across a bay to be longer foundation in reality…”
than ten miles? The Court held that “ Language of this kind can
only be construed as the considered expression of a
RULING: I. THE FORMATION OF legal conception regarded by the Norwegian
CUSTOMARY LAW. The Court referred to (1) Government as compatible with international law”.
positive State practice and (2) lack of contrary State Thus, the Court held that Norway had refused to accept
practice as a confirmation of an existing rule of the rule as regards to it in 1870.
customary international law. There was no mention of b. Sustained objection. The Court also went on to
opinio juris in this early judgment. In the following hold that Norway had followed the principles of
passage, the Court considered expressed dissent by delimitation that it considered a part of its system in a
States regarding a particular practice to be detrimental consistent and uninterrupted manner from 1869 until
to the existence of an alleged general rule. Yet, the the time of the dispute. In establishing consistent
Court did not examine further whether these States practice, the Court held that “ …too much importance
adopted a contrary practice because, for example, (1) need not be attached to the few uncertainties or
they were claiming an exception to the rule (see the contradictions, real or apparent, which the United
2019, EH 402) Jerusalem, 1961
Kingdom Government claims to have discovered in abstention would in any case warrant Norway’s
Norwegian practice.” enforcement of her system against the United
Kingdom. The Court is thus led to conclude
c. No objection by other States that the method of straight lines, established in
The Court held that the 10-mile rule did not form a part the Norwegian system, was imposed by the
of the general law and, in any event, could not bind peculiar geography of the Norwegian coast;
Norway because of the latter’s objections. Next, the that even before the dispute arose, this method
Court inquired whether the Norwegian system of had been consolidated by a consistent and
delimitation was nevertheless contrary to international sufficiently long practice, in the face of which
law. To do so, the Court relied on state practice once the attitude of governments bears witness to the
more. fact that they did not consider it to be contrary
[p. 138] “The general toleration of foreign to international law.”
States with regard to the Norwegian practice is
an unchallenged fact. For a period of more than IV. RELATIONSHIP BETWEEN
sixty years the United Kingdom Government INTERNATIONAL AND NATIONAL LAW. The
itself in no way contested it… The Court notes Court alluded to the relationship between national and
that in respect of a situation which could only international law in delimitation of maritime
be strengthened with the passage of time, the boundaries. In delimitation cases, States “must be
United Kingdom Government refrained from allowed the latitude necessary in order to be able to
formulating reservations.” adapt its delimitation to practical needs and local
III CONTRARY STATE PRACTICE OF requirements…” The Court would also consider “
NORWAY. In this case, Norway adopted a contrary …certain economic interests peculiar to a region, the
practice – a practice that was the subject of litigation. reality and importance of which are clearly evidenced
However, interestingly, Norway was clear that it was by a long usage.” However, while the act of
not claiming an exception to the rule (i.e. that its delimitation can be undertaken by the State, its legal
practice was not contrary to international law). It validity depends on international law. “[P. 132] The
emphasized that its practice – delimitation of sea areas has always an international
even if it was a deviation from the general practice – aspect; it cannot be dependent merely upon the will of
was in conformity with international law. the coastal State as expressed in its municipal law.
[p. 133] “In its (Norway’s) view, these rules of Although it is true that the act of delimitation is
international law take into account the diversity necessarily a unilateral act, because only the coastal
of facts and, therefore, concede that the State is competent to undertake it, the validity of the
drawing of base-lines must be adapted to the delimitation with regard to other States depends upon
special conditions obtaining in different international law.”
regions. In its view, the system of delimitation
applied in 1935, a system characterized by the Atty Pandi: Why do we need to know why States
use of straight lines, does not therefore infringe behave the way they do? In order for us to know if they
the general law; it is an adaptation rendered accept a practice as law. Non-legal motivations are not
necessary by local conditions. ” binding.
The Court held that the fact that this consistent and
sufficiently long practice took place without any Examples of Non-legal Motivations:
objection to the practice from other States (until the
time of dispute) indicated that these States did not 1) Lotus Case—not based on a conscious decision on
consider the Norwegian system to be “contrary to Pandi,the part of states
Compiled by RGLthat they
10 ofwere
75
international law”. under a duty to abstain from prosecutions
[p. 138] “The notoriety of the facts, the general
toleration of the international community,
Great Britain’s position in the North Sea, her
own interest in the question, and her prolonged
2019, EH 402) Jerusalem, 1961
SS LOTUS (FRANCE v. TURKEY), 1927, PCIJ duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one
FACTS: On August 2nd, 1926, towards midnight, to infer that States have been conscious of having such a
between five and six nautical miles to the North of duty; on the other hand, as will presently be seen, there are
Cape Sigri (Mitylene), a collision occurred between the other circumstances calculated to show that the contrary is
French mail steamer Lotus (during the watch of the first true
lieutenant of the ship, M. Demons, a French citizen) There is no rule of international law in regard to
and the Turkish collier Boz-Kourt, commanded by its collision cases to the effect that criminal proceedings are
captain Hassan Bey. Cut in two the Turkish ship sank; exclusively within the jurisdiction of the State whose flag
ten of the persons who were on board were able to be is flown. It is therefore a case of concurrent jurisdiction
saved by the Lotus, but eight others who were Turkish (Pages 29, 31).
nationals were drowned. The French mail steamer then Art. 15 of the Convention of Lausanne states
continued on its course towards Constantinople where that "Subject to the provisions of Article 16, all questions
it arrived on August 3rd. The Turkish police proceeded of jurisdiction shall, as between Turkey and the other
to hold an inquiry into the collision. contracting Powers, be decided in accordance with the
The examination, led to the placing under principles of international law."
arrest of Lieutenant Demons—without previous notice "Principles of international law", as ordinarily
moreover being given to the French Consul-General— used, can only mean international law as it is applied
and of the Captain of the Boz-Kourt. This arrest was between all nations belonging to the community of States.
alleged to have been effected in order to ensure that the It governs relations between independent States. The rules
criminal prosecutions instituted against these two of law binding upon States therefore emanate from their
officers, on a charge of manslaughter brought on the own free will as expressed in conventions or by usages
complaint of the families of the victims of the collision, generally accepted as expressing principles of law and
should follow its normal course. The case was heard established in order to regulate the relations between these
from August 28th onwards by the Criminal Court of co-existing independent communities or with a view to the
Stamboul. achievement of common aims. Restrictions upon the
The French Government had made protest to independence of States cannot therefore be presumed
the Turkish Government and had demanded in (Page 18).
particular that the matter should be withdrawn from the The first and foremost restriction imposed by
Turkish courts and transferred to the French courts. international law upon a State is that, failing the existence
France alleges that in practice, prosecutions for of a permissive rule, it may not exercise its power in any
collision cases only occur before the courts of the State form in the territory of another State. It does not, however,
whose flag is flown. follow that international law prohibits a State from
exercising jurisdiction in its own territory on acts taken
ISSUE: Whether prosecutions only occur before the place abroad where it cannot rely on permissive rule of
courts of the State whose flag is flown and that that international law. The State has discretion in these cases as
circumstance is proof of a tacit consent on the part of long as it does overstep the limits which international law
States and, consequently, shows what positive places upon its jurisdiction; within these limits, its title to
international law is in collision cases. exercise ejurisdiction rests in its sovereignty(Pages 18-19).
If it had been established that there was no
RULING: (p.28) In the Court’s opinion, this prohibition in respect of collision on the high seas, then it
conclusion is not warranted. Even if the rarity of the would be tantamount to a special permissive rule.
judicial decisions to be found among the reported cases In virtue of the principle of the freedom of the
were sufficient to prove in point of fact the seas, the absence of any territorial sovereignty upon the
circumstance alleged by the Agent for the French high seas, no State may exercise any kind of jurisdiction
Government, it would merely show that States had over foreign vessels upon them. A corollary of the
often, in practice, abstained from instituting criminal principle of the freedom of the seas is that a ship on the
proceedings, and not that they recognized themselves as high seas is assimilated to the territory of the State the flag
being obliged to do so ; for only if such abstention of which it flies, for, just as in its own territory, that State
were based on their being conscious of having a exercises its authority upon it, and no other State may do
2019, EH 402) Jerusalem, 1961
so. It follows that what occurs on board a vessel on the

high seas must be regarded as if it occurred on the requested safe-conduct to enable de la Torre who was a
territory of the State whose flag the ship flies. If, political offender, to leave Peru.
therefore, a guilty act committed on the high seas The Government of Peru refused, claiming that
produces its effects on a vessel flying another flag or in Haya dela Torre had committed common crimes and
foreign territory, the same principles must be applied as was not entitled to enjoy the benefits of asylum. Being
if the territories of two different States were concerned, unable to reach an agreement, the two Governments
and the conclusion must therefore be drawn that there is submitted to the Court certain questions concerning
no rule of international law prohibiting the State to their dispute.
which the ship on which the effects of the offense have Colombia argues that it was competent to
taken place belongs, from regarding the offence as qualify the offence by a unilateral and definite decision,
having been committed in its territory and prosecuting, because unilateral qualification is a matter of custom
accordingly, the delinquent (Page 25). (Territorial under international law, as evidenced by regional or
principle) local custom peculiar to Latin-American states.
No rule of customary international law,
therefore, established the exclusive jurisdiction of the ISSUE: Is there a rule of customary international law
State whose flag is flown. Consequently, once it is that a state granting asylum, in this case, Colombia, is
admitted that the effects of the offence were competent to qualify the nature of the offence by a
produced on the Turkish vessel, it becomes impossi ble unilateral and definitive decision binding on Peru?
to hold that there is a rule of international law which
prohibits Turkey from prosecuting M. Demons because RULING: [p.14] The Party which relies on a custom
of the fact that the author of the offence was on board of this kind must prove that this custom is established
the French ship (Page 23). in such a manner that it has become binding on the
The offence for which Lieutenant Demons other Party. The Colombian government must prove
appears to have been prosecuted was an act-of that the rule invoked by it is in accordance with a
negligence or imprudence-having its origin on board constant and uniform usage practised by the States in
the Lotus, whilst its effects made themselves felt on question, and that this usage, is the expression of a
board the Boz-Kourt. These two elements are, legally, right appertaining to the State granting the asylum and
entirely inseparable, so much so that their separation a duty incumbent on the territorial State. This follows
renders the offence non-existent. Neither the exclusive from ART 38 of the Statute of the Court which refers
jurisdiction of either State, nor the limitations of the to international custom “as evidence of a general
jurisdiction of each to the occurrences which took place practice accepted as law.”
on the respective ships would appear calculated to [p.15] ...the Colombian Government has
satisfy the requirements of justice and effectively to referred to a large number of particular cases in which
protect the interests of the two States. It is, therefore, a diplomatic asylum was in fact granted and respected.
case of concurrent jurisdiction (Page 30). But it has not shown that the alleged rule of unilateral
and definitive qualification was invoked or—if in some
cases it was in fact invoked—that it was, apart from
Asylum Case—considerations of political expediency, conventional stipulations, exercised by States granting
good-neighbour relations asylum as a right appertaining to them and respected
by the territorial States as a duty incumbent on them
ASYLUM CASE (COLOMBIA v. PERU), 1950, ICJ and not merely for reasons of political expediency.
FACTS: In 1948, a military rebellion broke out in The facts brought to the knowledge of the
Peru. Proceedings were instituted against Victor Court disclose so much uncertainty and contradiction,
RaulHaya de la Torre, and the American People’s so much fluctuation and discrepancy in the exercise of
Revolutionary Alliance, for the instigation and diplomatic asylum and in the official views expressed
direction of that rebellion. He was sought out by the on various occasions, there has been so much
Peruvian authorities, but without success. He requested inconsistency in the rapid succession of conventions on
for asylum and was granted by the Colombian asylum, ratified by some States and rejected by others,
Ambassador. The Colombian Ambassador in Lima and the practice has been so much influenced by
considerations of political expediency in the various
cases,
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and that it isbynot
the books possibleAkehurst,
Henriksen, to discern in all 19
and Shaw this any
constant and uniform usage, accepted as law, with
regard to the alleged rule of unilateral and definitive
qualification of the offence.
The Court cannot therefore find that the
2019, EH 402) Jerusalem, 1961
considerations of political expediency in the various Article 37(a).

cases, that it is not possible to discern in all this any • In the US, death penalty for juveniles was declared
constant and uniform usage, accepted as law, with unconstitutional.
regard to the alleged rule of unilateral and definitive • Currently throughout the world there are about 140
qualification of the offence. people sentenced to death for crimes committed when
The Court cannot therefore find that the they were under 18.
Colombian Government has proved the existence of • Iran executes about 2/3 of the juvenile offenders
such a custom. But even if it could be supposed that executed each year.
such a custom existed between certain Latin American Does customary international law prohibit the
States only, it could not be invoked against Peru which, execution of people who commit the crimes when they
far from having by its attitude adhered to it, has on the were under 18?
contrary, repudiated it by refraining from ratifying the
Montevideo Conventions of 1993 and 1939, which 2.3.4. THE RELATIONSHIP BETWEEN CUSTOM
were the first to include a rule concerning the AND TREATY LAW
qualification of the offence in matters of diplomatic
asylum. MILITARY AND PARAMILITARY ACTIVITIES
The Court, rejects the first submission that IN AND AGAINST NICARAUGE (NICARAGUA
Colombia, can qualify the nature of the offence by a v. UNITED STATES) 1986, ICJ
unilateral and definitive decision, to bind Peru.
FACTS: The events of this case took place after the
Q: Do you have to look for opinion juris all the time? fall of the Government of President Anastasio Somoza
When can you dispose of opinion juris? Debayle in Nicaragua. A new government was
installed. However, former supporters of the Somoza
Atty Pandi: Dispose of opinion juris only when there is Government and former members of the National
obvious practice to the contrary. Guard formed themselves into military groups and
commenced a policy of armed opposition
Q: When do you need opinion juris?
Allegedly, the Unites States had been giving
Atty Pandi: If there is ambiguity in state practice. support to the contras, those fighting against the
present Nicaraguan government...the contras have
CASE STUDY caused considerable material damage and widespread
loss of life, and have also committed such acts as
Below are some statistics on the practice of executing killing of prisoners, indiscriminate killing of civilians,
people who commit crimes when they are under the torture, rape and kidnapping.
age of 18 years (juveniles): Nicaragua claims that United States has
• In 1990, there were 9 countries that permitted the violated ART 2(4) of the UN Charter, and customary
execution of juveniles. international law obligation forbidding intervention and
• Since 2008, only Iran, Saudi Arabia, Sudan, and to refrain from the threat and use of force. Nicaragua
Yemen have executed persons who committed crimes contends that the United States had effective control of
when under the age of 18. the contras, and had directed their tactics to overthrow
• The Convention on the Rights of the Child (“CRC”) the present government.
forbids capital punishment for juveniles (Article United States claims its acts were in exercise of
37(a)). The treaty entered into force in 1990 and has its right to collective self defense, guaranteed by ART
been signed by all countries and ratified by all except 51 of the UN Charter. USA contended that the court
Somalia and the United States. has no jurisdiction by virtue of a reservation in its
• Some countries have deposited reservations to the acceptance of jurisdiction under ART 36 (par.2) with
CRC, such as a number of Islamic countries who regard to “disputes arising under a multilateral treaty,”
frequently add a generic reservation stating that they particularly the UN Charter and the Charter of the
do not agree to anything that violates the principles of Organization of American States, that such treaties
Islam although they do not specifically mention supervene and subsume customary law.
Article 37(a).
• Eunice
In theSoriano Baliong
US, death | based for
penalty on Atty. Pandi’s was
juveniles syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw
declared 20
unconstitutional.
• Currently throughout the world there are about 140
people sentenced to death for crimes committed when
2019, EH 402) Jerusalem, 1961
USA argues that even with regard to [178] even if two norms belonging to two
Nicaragua’s claims based on customary international sources of international law appear identical in content,
law, such could not be invoked without reference to the and even if the Sates in question are bound by these
UN Charter, which it considers as the principal source rules both on treaty-law and on customary international
of that law. In effect, USA is arguing that the Court law, these norms retain a separate existence...from the
could not apply in its decision, any rule of customary standpoint of applicability...for example, if a State
international law, the content of which, is also the exercises its right to terminate...the operation of a treaty
subject of a provision in multilateral treaties. on the ground of the violation by the other party of a
provision essential to the accomplishment of the object
ISSUE: Should the ICJ refrain from applying the rules and purpose of the treaty (ART 60 (3)(b) VCLT) it is
of customary international law because they have been exempted...from a rule of treaty law because of the
“subsumed” and “supervened” by international treaty breach by that other State...But if the two rules...also
law? exist as rules of customary international law, the
failure of one State to apply the one rule does not
RULING: [174] ...the fact that principles have been justify the other State in declining to apply the other
codified or embodied in multilateral conventions does rule.
not mean that they cease to exist and to apply as [182] ...the Court exercise the jurisdiction
principles of customary law. They continue to be conferred upon it...to determine the claims of
binding as part of customary international law, despite Nicaragua based upon customary international law
the operation of the provisions of conventional law in notwithstanding the exclusion from its jurisdiction of
which they have been incorporated disputes “arising under” the UN and OAS.
[175] even if a treaty norm and a customary
norm relevant to the present dispute were to have
exactly the same content, this would not be a reason for NORTH SEA CONTINENTAL SHELF CASES
the Court to take the view that the operation of the (GERMANY v. DENMARK and
treaty...must necessarily deprive the customary norm of NETHERLANDS), 1969, ICJ
its separate applicability. Nor can multilateral treaty
reservation be interpreted as meaning that, once FACTS: The case involved the delimitation of the
applicable to a given dispute, it would exclude the continental shelf areas in the North Sea between
application of any rule of customary international law difficult because Denmark and Netherlands
the content of which was the same as, or analogous to, wanted this prolongation to take place based on the
that of the treaty-law equidistance principle (the method of determining the
[176] reference to customary international law...in boundaries in such a way that every point in the
Article 51 which mentions the “inherent right”...of boundary is equidistant from the nearest points of the
collective self-defense...the Charter having itself baselines from which the breath of the territorial sea of
recognized this right, does not go on to regulate directly each State is measured).
all aspects of its content. ...it does not contain any Whereas Germany was of the view that,
specific rule whereby self- defense would warrant only together, these two boundaries would produce an
measures which are proportional to the armed attack inequitable result for her. Germany stated that due to its
and necessary to respond to it, a rule well established in concave coastline, such a line would result in her losing
customary international law...a definition of armed out on her share of the continental shelf. Germany
attack...which authorizes the exercise of the inherent sought to get a decision in favor of the notion that the
right of self defense, is not provided in the Charter and delimitation of the relevant continental shelf
is not part of treaty law. It cannot therefore be held that was governed by the principle that each coastal state is
ART 51 subsumes customary international law. ..the entitled to a just and equitable share (equitable
areas governed by the two sources of law...do not principle). Contrary to Denmark and Netherlands,
overlap exactly, and the rules do not have the same Germany argued that the principle of equidistance was
content. This could be demonstrated for other subjects, neither a mandatory rule in delimitation of the
in particular for the principle of non-intervention. continental shelf nor a rule of customary international
law that was binding on Germany.
Thus,
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, delimitation
and the could not
books by Henriksen, be settled
Akehurst, between
and Shaw 21 the
parties (negotiations failed) so in their Compromise
they agreed that the Court was to decide which principles and
rules of international law are applicable to the delimitations
between the parties. In doing so, the Court had to decide if the
2019, EH 402) Jerusalem, 1961
law that was binding on Germany. presume that the State had somehow become bound by
Thus, delimitation could not be settled between a treaty (by a means other than in the formal manner:
the parties (negotiations failed) so in their Compromise i.e. ratification) when the State was ‘at all times fully
they agreed that the Court was to decide which able and entitled to…’ accept the treaty commitments
principles and rules of international law are applicable in a formal manner.
to the delimitations between the parties. In doing so, the The Court held that Germany had not
Court had to decide if the principles espoused by the unilaterally assumed obligations under the Convention.
parties were binding on the parties either through treaty The court also took notice of the fact that even if
law or customary international law. Germany ratified the treaty now, she had the option of
entering into a reservation on Article 6(2), following
ISSUE: Is Germany under a legal obligation to accept which that particular article would no longer be
the equidistance-special circumstance principle, applicable to Germany (in other words, even if one
contained in ART 6 of the Geneva Convention on the were to assume that Germany had intended to become a
Continental Shelf of 1958 either as a customary party to the Convention, it does not presuppose that it
international law rule, or on the basis of the Geneva would have also undertaken those obligations contained
Convention? in Article 6(2).
[30-32] The Court held that the existence of a
RULING: I. Nature of the Treaty Obligation. Is the situation of estoppel would have allowed Article 6 to
1958 Geneva Convention, and in particular Article become binding on Germany – but held that Germany’s
6(2) of the Continental Shelf Convention, binding on action did not support an argument for estoppel. The
Germany? Court also held that the mere fact that Germany may
[26] Article 6 of the Geneva not have specifically objected to the equidistance
Convention stated that “in the absence of agreement, principle as contained in Article 6, is not sufficient to
and unless another boundary is justified by special state that the principle is now binding upon it.
circumstances, the boundary shall be determined by In conclusion, the Court held that Germany had
application of the principle of equidistance.” not acted in any manner so as to incur obligations
[27] Germany had signed, but not ratified, the contained in Article 6 of the Geneva Convention. The
Geneva Convention, while Netherlands and Denmark equidistance–special circumstances rule was not
were parties to the Convention. The latter two States binding on Germany by way of treaty law.
argued that while Germany is not a party to the
Convention (not having ratified it), she was still bound II. Nature of the customary international law
by Article 6 of the Convention because: obligation: Is Germany bound by the provisions of par
“…(1) by conduct, by public statements 2 Article 6 of the Geneva Convention in so far as they
and proclamations, and in other ways, the reflect customary international law?
Republic has unilaterally assumed the [60] Netherlands and Denmark argued that par
obligations of the Convention; or has 2 Article 6 also reflected ‘the accepted rule of general
manifested its acceptance of the international law on the subject of continental shelf
conventional regime; or has recognized it delimitation’ and that it existed independently of the
as being generally applicable to the Convention. Therefore, they argued, Germany is bound
delimitation of continental shelf areas… by the subject matter of Article 6 by way of customary
(2) the Federal Republic had held itself out as international law.
so assuming, accepting or recognizing, in such To decide if the equidistance principle bound
a manner as to cause other States, and in Germany by way of customary international law, the
particular Denmark and the Netherlands, to rely Court examined (a) the status of the principle contained
on the attitude thus taken up” (the latter is in Article 6 as it stood when the Convention was being
called the principle of estoppel). drawn up; and (b) its status after the Convention came
[75-77] The Court rejected the first argument. It into force.
said that only a “very definite very consistent course of (a) What was the customary law status of Article 6 at
conduct on the part of a State would allow the Court to the time of drafting the Convention?
2019, EH 402) Jerusalem, 1961
[63, 69] The Court held that the principle of [74] “Although the passage of only a short
equidistance, as contained in Article 6 did not form a period of time (in this case, 3 – 5 years) is not
part of existing or emerging customary international necessarily, or of itself, a bar to the formation
law at the time of drafting the Convention. The Court of a new rule of customary international law on
supported this finding based on (1) the hesitation the basis of what was originally a purely
expressed by the drafters of the Convention, the conventional rule, an indispensable
International Law Commission, on the inclusion of requirement would be that within the period in
Article 6 into the Convention and (2) the fact that question, short though it might be, State
reservations to Article 6 was permissible under the practice, including that of States whose
Convention interests are specially affected, should have
. been both extensive and virtually uniform in
(b) Did the provisions in Article 6 on the equidistance the sense of the provision invoked and should
principle attain the customary law status after the moreover have occurred in such a way as to
Convention came into force? show a general recognition that a rule of law or
The Court then examined whether the rule legal obligation is involved.”
contained in Article 6 had become customary
international law after the Convention entered into Opinio juris. [75-77]The Court examined 15 cases
force – either due the Convention itself (i.e., if enough where States had delimited their boundaries using the
States had ratified the Convention in a manner so as to equidistance method, after the Convention came into
fulfill the criteria specified below), or because of force. The Court concluded that even if there were
subsequent State practice (i.e. even if an adequate some State practice in favor of the equidistance
number of States had not ratified the Convention, one principle, the Court could not deduct the necessary
could find sufficient State practice to meet the criteria opinio juris from this State practice. The North Sea
below). The Court held that Article 6 of the Convention Continental Shelf Cases confirmed that both State
had not attained a customary law status. practice and opinio juris are essential pre-requisites for
For a customary rule to emerge the Court held the formation of a customary law rule.
that it needed: (1) very widespread and representative [77] “Not only must the acts concerned amount
participation in the Convention, including States whose to a settled practice, but they must also be such, or be
interests were specially affected (i.e. generality); carried out in such a way, as to be evidence of a
and (2) virtually uniform practice (i.e. consistent and belief that this practice is rendered obligatory by the
uniform usage) undertaken in a manner that existence of a rule of law requiring it. The need for
demonstrates (3) a general recognition of the rule of such a belief, i.e, the existence of a subjective element,
law or legal obligation (i.e. opinio juries). In the North is implicit in the very notion of the opinio juris sive
Sea Continental Shelf cases the court held that the necessitatis. The States concerned must therefore feel
passage of a considerable period of time was that they are conforming to what amounts to a legal
unnecessary (i.e. duration) for the formation of a obligation. The frequency, or even habitual character of
customary law. (PAR 73) the acts is not in itself enough. There are many
international acts, e.g., in the field of ceremonial and
Widespread and representative participation protocol, which are performed almost invariably, but
[73] The Court held that the first criteria was which are motivated only by considerations of
not met. The number of ratifications and accessions to courtesy, convenience or tradition, and not by any
the Convention (39 States) were not adequately sense of legal duty.” The use of equidistant method is
representative or widespread. thus, not obligatory.
Duration
The Court held that the duration taken for a customary
law rule to emerge is not as important as widespread
and representative participation, uniform usage, and the
existence of an opinio juris. It held that:
2019, EH 402) Jerusalem, 1961
CONTINENTAL SHELF (LIBYAN ARAB overwhelming majority of States-it is clearly the duty
JAMAHIRIYA v. MALTA) 1985, ICJ of the Court to consider how far any of its provisions
FACTS: In 1976, Malta and Libya entered into a may be binding upon the Parties as a rule of customary
Special Agreement allowing the Court (ICJ) to settle a law.
dispute concerning the delimitation of continental shelf However, on the legal basis of title to
between the two countries. The Court was asked to continental shelf rights the views of the Parties are
decide what rules of international law were applicable irreconcilable. For Libya, the natural prolongation of
and how these can be applied specifically to the case. the land territory of a State into the sea remains the
Malta argued that the “Equidistance” Rule fundamental basis of legal title to continental shelf
must be applied. areas. For Malta, continental shelf rights are no longer
Equidistance Rule - drawing a median defined in the light of physical criteria; they are
line in every point equidistant from the controlled by the concept of distance from the coast.
nearest point of the baseline of Malta, In the view of the Court, the principles and
and the low water mark of the coast of rules underlying the regime of the exclusive economic
Libya. zone cannot be left out of consideration in the present
On the other hand, Libya forwarded the “Rift case, which relates to the delimitation of the
Zone” argument. continental shelf. The two institutions are linked
Rift Zone Rule - The natural together in modem law, and one of the relevant
prolongation of the respective land circumstances to be taken into account for the
territories of the parties is the basis of delimitation of the continental shelf of a State is the
the title to the areas of continental shelf legally permissible extent of the exclusive economic
zone appertaining to that same State. The institution of
ISSUE: What rules and principles are applicable to the the exclusive economic zone, with its rule on
delimitation of the continental shelf between the two entitlement by reason of distance, is shown by the
states? practice of States to have become a part of customary
law; and although the institutions of the continental
RULING: I. Relationship Between Custom and shelf and the exclusive economic zone are different and
Treaty Law. [26] The Parties are broadly in agreement distinct, the rights which the exclusive economic zone
as to the sources of the law applicable in this case. xxx entails over the sea-bed of the zone are defined by
Both Parties have signed the 1982 United Nations reference to the regime laid down for the continental
Convention on the Law of the Sea (UNCLOS), but shelf. Although there can be a continental shelf where
that Convention has not yet entered into force, and is there is no exclusive economic zone, there cannot be an
therefore not operative as treaty-law.xxx The Parties exclusive economic zone without a corresponding
thus agree that the dispute is to be governed by continental shelf.
customary international law. This is not at al1 to say, It follows that, for juridical and practical
however, that the 1982 Convention (UNCLOS) was reasons, the distance criterion must now apply to the
regarded by the Parties as irrelevant : the Parties are continental shelf as well as to the exclusive economic
again in accord in considering that some of its zone; and this quite apart from the provision as to
provisions constitute, to a certain the expression of distance in Article 76 of the 1982 Convention. Within
customary international law in the matter. 200 miles of the coast, natural prolongation is in part
[27] It is of course axiomatic that the material of defined by distance from the shore. The concepts of
customary international law is to be looked for natural prolongation and distance are not opposed but
primarily in the actual practice and opinio juris of complementary; and both remain essential elements in
States, even though multilateral conventions may the juridical concept of the continental shelf.
have an important role to play in recording and The Court is thus unab1e to accept the case.
defining rules deriving from custom, or indeed in Libyan contention that distance from the coast is not a
developing them. relevant element for the decision of the present case.
[26-35] In view of the major importance of this II. Inadequacy of State Practice. [44] In this
Convention- which has been adopted by an connection, something may be said on the subject of
2019, EH 402) Jerusalem, 1961
the practice of States in the field of continental shelf FISHERIES JURISDICTION CASE (UK v.
delimitation; the Parties have in fact discussed the ICELAND), 1974, ICJ
significance of such practice, as expressed in published
delimitation agreements, primarily in the context of the FACTS: In 1971, the Icelandic Government announced
status of equidistance in present international law. Over that the agreement on fisheries jurisdiction with the
70 such agreements have been identified and produced United Kingdom would be terminated and that the limit
to the Court and have been subjected to various of exclusive Icelandic
interpretations. fisheries jurisdiction would be extended to 50 miles. In
Libya questions the relevance of State practice in this an aide-memoire of 24 February 1972 the United
domain, and has suggested that this practice shows, if Kingdom was formally notified of this intention. In
anything, progressive disappearance of the distinction reply the latter emphasized that the Exchange of Notes
to be found in Article 6 of the 1958 Geneva was not open to unilateral denunciation and that in its
Convention on the Continental Shelf, between view the measures contemplated "would have no basis
"opposite" and "adjacent" States, and that there has in international law". On 14 July 1972 new Regulations
since 1969 been a clear trend away from equidistance were introduced whereby Iceland's fishery limits would
manifested in delimitation agreements between States, be extended to 50 miles and all fishing activities by
as well as in jurisprudence and in the deliberations at foreign vessels inside those limits be prohibited.
the United Nations Conference on the Law of the Sea.
Malta rejects both these latter contentions, and ISSUE: Whether the claim by Iceland to be entitled to
contends that such practice need not be seen as a zone of exclusive fisheries jurisdiction extending 50
evidence of a particular rule of customary law, but must nautical miles from the baselines is without foundation
provide significant and reliable evidence of normal in international law and is invalid?
standards of equity.
The Court for its part has no doubt about the RULING: [49-78] The first United Nations
importance of State practice in this matter. Yet that Conference on the Law of the Sea (Geneva, 1958)
practice, however interpreted, falls short of proving the had adopted a Convention on the High Seas, Article 2
existence of a rule prescribing the use of equidistance, of which declared the principle of the freedom of the
or indeed of any method, as obligatory. Even the high seas, that is to say, freedom of navigation,
existence of such a rule as is contended for by Malta, freedom of fishing, etc., to "be exercised by all States
requiring equidistance simply to be used as a first stage with reasonable regard to the interests of other States in
in any delimitation, but subject to correction, cannot be their exercise of the freedom of the high seas".
supported solely by the production of numerous The question of the breadth of the territorial sea
examples of delimitations using equidistance or and that of the extent of the coastal State's fishery
modified equidistance, though it is impressive evidence jurisdiction had been left unsettled at the 1958
that the equidistance method can in many different Conference and were not settled at a second
situations yield an equitable result. Conference held in Geneva in 1960. However, arising
[79] The Court holds, that the principles and out of the general consensus at that second Conference,
rules of international law applicable for the two concepts had since crystallized as customary law:
delimitation, is to be effected (1) in accordance with that of a fishery zone, between the territorial sea and
equitable principles and taking into account all relevant the high seas, within which the coastal State could
circumstances, so as to arrive at an equitable result; (2) claim exclusive fisheries jurisdiction-it now being
the area of continental shelf to be found to appertain to generally accepted that that zone could extend to the
either party not extending more than 200 miles from the 12-mile limit-and the concept, in respect of waters
coast of the Party concerned, no criterion for adjacent to the zone of exclusive fishing rights, of
delimitation of shelf areas can be derived from the preferential fishing rights in favour of the coastal State
principle of natural prolongation in the physical sense. in a situation of special dependence on its fisheries.
The Court was likewise aware of present
endeavours, pursued under the auspices of the United
Nations, to achieve in a third Conference on the Law of
2019, EH 402) Jerusalem, 1961
the Sea the further codification and progressive LEGALITY OF THE THREAT OR USE OF
development of that branch of the law, as it was also of NUCLEAR WEAPONS, 1996, ICJ
various proposals and preparatory documents produced
in that framework. But, as a court of law, it could not FACTS: The General Assembly of the United Nations
render judgment sub specie legis ferendae or asked the Court to provide its legal opinion on the
anticipate the law before the legislator had laid it following question “Is the threat or use of nuclear
down. It must take into account the existing rules of weapons in any circumstances permitted under
international law and the Exchange of Notes of 1961. international law?” In 1993, two years previously, the
The concept of preferential fishing rights had World Health Organization had asked the Court a
originated in proposals submitted by Iceland at the similar question on the legality of the use nuclear
Geneva Conference of 1958, which had confined itself weapons under international law. The Court then,
to recommending that: declined to answer because the Court held that
". . . where, for the purpose of conservation, it the World Health Organization did not have the
becomes necessary to limit the total catch of a competence to ask the Court that particular question.
stock or stocks of fish in an area of the high
seas adjacent to the territorial sea of a coastal ISSUE: Did customary or treaty law authorize the use
State, any other States fishing in that area of nuclear weapons?
should collaborate with the coastal State to
secure just treatment of such situation, by RULING: [52] international customary and treaty law
establishing agreed measures which shall does not contain any specific prescription authorizing
recognize any preferential requirements of the the threat or use of nuclear weapons or any other
coastal State resulting from its dependence weapon in general or in certain circumstances, in
upon the fishery concerned while having regard particular those of the exercise of legitimate self
to the interests of the other States". defence.
At the 1960 Conference the same concept had been Nor, however, is there any principle or rule of
embodied in an amendment incorporated by a international law which would make the legality of the
substantial vote into one of the proposals concerning threat or use of nuclear weapons or of any other
the fishing zone. The contemporary practice of States weapons dependent on a specific authorization. State
showed that that concept, in addition to its increasing practice shows that the illegality of the use of certain
and widespread acceptance, was being implemented by weapons as such does not result from an absence of
agreements, either bilateral or multilateral. In the authorization but, on the contrary, is formulated in
present case, in which the exclusive fishery zone terms of prohibition.
within the limit of 12 miles was not in dispute, the
United Kingdom had expressly recognized the ISSUE: Did treaty or customary law prohibit the threat
preferential rights of the other Party in the disputed and use of nuclear weapons?
waters situated beyond that limit. There could be no
doubt of the exceptional dependence of Iceland on its RULING: The Court concludes that there is NO
fisheries and the situation appeared to have been comprehensive and universal prohibition on the threat
reached when it was imperative to preserve fish stocks and use of nuclear weapons either in treaty or
in the interests of rational and economic exploitation. customary law.
However, the very notion of preferential (1) In terms of treaty law, some States argued
fishery rights for the coastal State in a situation of that the use of nuclear weapons would violate the right
special dependence, though it implied a certain priority, to life and other treaty-based human rights, prohibition
could not imply the extinction of the concurrent rights on genocide, and rules relating to the protection of the
of other States. The fact that Iceland was entitled to environment. The Court says that none of these treaties
claim preferential rights did not suffice to justify its provide a “universal and comprehensive” prohibition
claim unilaterally to exclude British fishing vessels on the use of nuclear weapons (see paras 24-34).
from all fishing beyond the limit of 12 miles agreed to (2) Then, the Court says that the “most directly
in 1961. relevant applicable law” is the UN Charter provisions
2019, EH 402) Jerusalem, 1961
relating to the use of force and those laws that (4) The Court concludes that there is no comprehensive
govern armed conflict. However, it finds that both of and universal prohibition on the threat or use of nuclear
these legal regimes also do not expressly prohibit, nor weapons under treaty law or customary law.
permit, the use of nuclear weapons. The Court
finds that:  When a treaty codifies CIL...parties to the treaty will
(a) Articles 2(4), 42, and 51 of the UN be bound by the treaty AND the CIL, while non-
Charter that relates to the legality on parties will only be bound by the latter.
the use of force, is silent on the specific
 A treaty-based obligation is identical to obligations in
weapons that can be used when using
CIL...if the treaty has a “crystallizing” effect whereby
force (for more, see prohibitions on the
its content develops into CIL.
use of force).
 When a treaty contains elements of BOTH
(b) International humanitarian law codification of existing customary law or progressive
treaties (part of those laws governing developments...non-parties are also bound by the
armed conflict), including the Hague former.
Convention IV of 1907 and the  When the content of a treaty and a CIL is
Geneva Protocol of 1925 have been identical...the two sources will complement and
understood in State practice, as not reinforce each other.
covering nuclear weapons.  If the content are not exactly identical...a potential
Similarly, other humanitarian law conflict can often be avoided through interpretation.
treaties governing weapons of mass  When conflicting content CANNOT be
destruction, like the Biological and reconciled...question arises which of the two sources
Chemical Weapons Conventions, also prevails.
do not contain prohibitions on the use  If one of the two norms has a peremptory
of nuclear weapons. norm or jus cogens character, it prevails.
 But when the CIL has developed AFTER
(c) The Court also points out that the inconsistent treaty-rule:
those treaties that specifically relate to 1) Lex posterior—that which is
nuclear weapons (para 58) only limit later in time prevails
its use, but does not support a general 2) Let the CIL modify the treaty.
prohibition.  Lex specialis—if the conflict is between a
(3) In terms of customary law, the Court finds that the general and a more detailed character.
opinio juris on the prohibition of the use of nuclear
weapons differs amongst States, as reflected in the CASE STUDY
content and voting patterns of General Assembly
resolutions, their views on deterrence and the non use Rahmat River demarcates the border between Atania
of nuclear weapons in the recent past (para 64 - to the north and Rahad to the south. By a treaty
72 and see post on opinio juris). The Court finds that: concluded between the two states in 1858,
…the members of the international community are Atania was given sovereign rights over Rahmat River,
profoundly divided on the matter of whether non- but Rahad was given perpetual navigational rights on
recourse to nuclear weapons over the past 50 years the river. Various disputes have arisen over
constitutes the expression of opinio juris. Under these navigational rights. Recently, Atania has forbidden all
circumstances the Court does not consider itself able to fishing from the banks of the river from the territory of
find that there is such an opinio juris… The emergence, Rahad.
as lex lata, of a customary rule specifically prohibiting
the use of nuclear weapons as such is hampered by the Rahad protests that, at least since 1540, riparian
continuing tensions between the nascent opinio juris on dwellers have consistently engaged in subsistence
the one hand, and the still strong adherence to the fishing from the banks of the river from the Atanian
practice of deterrence on the other.
2019, EH 402) Jerusalem, 1961
side. Atania never objected to this practice until 6 On its part, Belgium began the construction of
months ago. Atania replies that the Treaty of 1858 the Albert Canal, unfinished at the time of the
does not mention fishing rights and that the treaty judgment, a barrage at Monsin and a lock at
should be read as a complete statement of the rights of Neerhaeren.
both states with respect to the river. Rahad and Atania As no further progress could be made in the
agreed to have the dispute settled by the ICJ. settlement of the points at issue between the two States,
the Netherlands initiated proceedings in the Court by
How should the ICJ rule? means of a unilateral application, based on the
declarations made by both the Netherlands and
Belgium in which they accepted the compulsory
2.4.GENERAL PRINCIPLES AS A SOURCE OF LAW jurisdiction of the Court under Article 36 (a) of the
Statute. Belgium, on its part, made a counter-claim.
General principles of international law would prevent the In the course of the proceedings and at the
Court being unable to decide a dispute due to a shortage of suggestion of the Belgian Agent, which the Netherlands
applicable law—so called non-liquet. Agent did not oppose, the Court visited the locality in
order to see on the spot the installations, canals and
General principles were thus primarily intended as “gap waterways to which the dispute related and to witness
fillers” that only needed to be consulted when a dispute practical demonstrations of the operations of locks and
could NOT be resolved on the basis of a treaty or CIL. installations connected therewith.
Examples of GAPIL: The Netherlands ask the Court in the main to
adjudge and declare that the works already carried out
1) Equity by Belgium were contrary to the Treaty of 1863, that
the proposed works would be contrary to it and,
DIVERSION OF WATER FROM THE MEUSE, consequently, to "order Belgium a) to discontinue all
Individual Opinion by Mr. Hudson, 1937, PCIJ the works" listed in the Netherlands' submissions and
"to restore to a condition consistent with the Treaty of
FACTS: On May 12th, 1863, Belgium and the 1863 all works constructed in breach of that Treaty; b)
Netherlands concluded a Treaty the purpose of which to discontinue any feeding held to be contrary to the
was "to settle permanently and definitively the regime said Treaty and to refrain from any further such
governing diversions of water from the Meuse for the feeding.
feeding of navigation canals and irrigation channels. On its part, Belgium asks the Court to declare
Article I of this Treaty provided for the construction the Netherlands' submissions ill-founded, as well as to
below Maestricht, in Netherlands territory, of a new adjudge and declare, in respect of the counter-claim,
intake which would constitute "the feeding conduit for that the Borgharen barrage was constructed in breach of
all canals situated below that town and for irrigation in the stipulations of the Treaty of 1863, that the Juliana
the Campine and in the Netherlands. The Belgian Canal is subject to the provisions of the Treaty and,
Government accepted the Treaty not without finally, to reserve the rights accruing to Belgium from
reluctance, in view of the fact that it provided for only the breaches so committed.
one intake and that to be situated in foreign territory.
When the economic development of the Individual Opinion of J.Hudson
Belgian and Netherlands provinces of Limburg Mr. Hudson observes that what are widely
required the enlargement of certain canals and the known as principles of equity have long been
construction of new works, the two States signed in considered to constitute a part of international law, and
1925 a new agreement designed to settle the differences as such they have often been applied by international
which had arisen in respect of the construction tribunals. The Court has not been expressly authorized
programmes. After the rejection of this agreement by by its Statute to apply equity as distinguished from law.
the Netherlands First Chamber, the Netherlands Nor, indeed, does the Statute expressly direct its
proceeded to construct and complete the Juliana Canal, application of international law. Article 38 of the
the Bosscheveld Lock and the Borgharen barrage. Statute expressly directs the application of “general
2019, EH 402) Jerusalem, 1961
principles of law recognized by civilized nations”, and NORTH SEA CONTINENTAL SHELF CASE
in more than one nation principles of equity have an (GERMANY v. DENMARK v. NETHERLANDS),
established place in the legal system. The Court’s 1969, ICJ
recognition of equity as a part of international law is
in no way restricted by the special power conferred FACTS: The dispute submitted to the Court related to
upon it “to decide a case ex aequo et bono, if the the delimitation of the continental shelf between the
parties agree thereto”. Mr. Hudson states that, under Federal Republic of Germany and Denmark on the one
Article 38 of the Statute, if not independently of that hand, and between the Federal Republic of Germany
Article, the Court has some freedom to consider and the Netherlands on the other. The Parties asked the
principles of equity as part of the international law Court to state the principles and rules of international
which it must apply. law applicable, and undertook thereafter to carry out
According to Mr. Hudson, it is an important the delimitation on that basis.
principle of equity that where two parties have assumed
an identical or a reciprocal obligation, one party which ISSUE: What is/are the principles and rules of law
is engaged in a continuing non-performance of that applicable in delimiting the continental shelf?
obligation should not be permitted to take advantage of
a similar non-performance of that obligation by the RULING: [83-101] The legal situation was that the
other party. Parties were under no obligation to apply the
In a proper case, and with scrupulous regard equidistance principle either under the 1958
for the limitations which are necessary, a tribunal Convention or as a rule of general or customary
bound by international law ought not to shrink from international law. It consequently became unnecessary
applying a principle of such obvious fairness. for the Court to consider whether or not the
Applying this finding to the case at hand, Mr. configuration of the German North Sea coast
Hudson declares that, in its operation of the constituted a "special circumstance". It remained for
Bosscheveld Lock, the Netherlands itself is now the Court, however, to indicate to the Parties the
engaged in taking precisely similar action, similar in principles and rules of law in the light of which
fact and similar in law. This seems to call for an delimitation was to be effected.
application of the principle of equity stated above. One The basic principles in the matter of delimitation,
result of applying the principle will be that even if the deriving from the Truman Proclamation, were that it
Court should be of the opinion that the Belgian action must be the object of agreement between the States
with regard to the functioning of the Neerhaeren Lock concerned and that such agreement must be arrived at
is contrary to the Treaty of 1863, it should nevertheless in accordance with equitable principles. The Parties
refuse in this case to order Belgium to discontinue that were under an obligation to enter into negotiations with
action. In equity, the Netherlands is not in a position to a view to arriving at an agreement and not merely to go
have such relief decreed to her. The Court is asked to through a formal process of negotiation as a sort of
decree a kind of specific performance of a reciprocal prior condition for the automatic application of a
obligation which the defendant itself is not performing. certain method of delimitation in the absence of
It must clearly refuse to do so. agreement; they were so to conduct themselves that the
Mr. Hudson states that as a general rule, it negotiations were meaningful, which would not be the
would seem that a principle of equity applicable to a case when one of them insisted upon its own position
request for an injunction should be applied also to a without contemplating any modification of it. This
request for a declaratory judgment. Neither request obligation was merely a special application of a
should be granted where the circumstances are such principle underlying all international relations, which
that the judgment would disturb that equality which is was moreover recognized in Article 33 of the Charter
equity. In the circumstances of this case, on the of the United Nations as one of the methods for the
assumption that the operation of both the Neerhaeren peaceful settlement of international disputes.
Lock and the Bosscheveld Lock is contrary to the The Parties were under an obligation to act in
Treaty of 1863, the Netherlands would not be entitled such a way that in the particular case, and taking all
to a declaratory judgment for the same reasons that it is the circumstances into account, equitable principles
not entitled to a mandatory judgment.
2019, EH 402) Jerusalem, 1961
were applied. There was no question of the Court's the Black Sea, thereby delimiting the continental shelf
decision being ex aequo et bono. It was precisely a rule and the exclusive economic zones appertaining to
of law that called for the application of equitable them”. The Memorial of Romania and the Counter-
principles, and in such cases as the present ones the Memorial of Ukraine were filed within the time-limits
equidistance method could unquestionably lead to fixed by an Order of 19 November 2004. By an Order
inequity. Other methods existed and might be of 30 June 2006, the Court authorized the filing of a
employed, alone or in combination, according to the Reply by Romania and a Rejoinder by Ukraine and
areas involved. Although the Parties intended fixed 22 December 2006 and 15 June 2007 as the
themselves to apply the principles and rules laid down respective time-limits for the filing of those pleadings.
by the Court some indication was called for of the Romania filed its Reply within the time-limit thus
possible ways in which they might apply them. fixed. By an Order of 8 June 2007, the Court extended
For all the foregoing reasons, the Court found to 6 July 2007 the time-limit for the filing of the
in each case that the use of the equidistance method of Rejoinder by Ukraine. The Rejoinder was filed within
delimitation was not obligatory as between the Parties; the time-limit thus extended.
that no other single method of delimitation was in all
circumstances obligatory; that delimitation was to be RULING: the Court rendered its Judgment in the case
effected by agreement in accordance with equitable on 3 February 2009. On the basis of established State
principles and taking account of all relevant practice and of its own jurisprudence, the Court
circumstances in such a way as to leave as much as declared itself bound by the three-step approach laid
possible to each Party all those parts of the continental down by maritime delimitation law, which consisted
shelf that constituted a natural prolongation of its land first of establishing a provisional equidistance line, then
territory, without encroachment on the natural of considering factors which might call for an
prolongation of the land territory of the other; and that, adjustment of that line and adjusting it accordingly and,
if such delimitation produced overlapping areas, they finally, of confirming that the line thus adjusted would
were to be divided between the Parties in agreed not lead to an inequitable result by comparing the ratio
proportions, or, failing agreement, equally, unless they of coastal lengths with the ratio of relevant maritime
decided on a regime of joint jurisdiction, user, or areas.
exploitation. In keeping with this approach, the Court first
In the course of negotiations, the factors to be taken established a provisional equidistance line. In order to
into account were to include: the general configuration do so, it was obliged to determine appropriate base
of the coasts of the Parties, as well as the presence of points. After examining at length the characteristics of
any special or unusual features; so far as known or each base point chosen by the Parties for the
readily ascertainable, the physical and geological establishment of the provisional equidistance line, the
structure and natural resources of the continental shelf Court decided to use the Sacalin Peninsula and the
areas involved; the element of a reasonable degree of landward end of the Sulina dyke on the Romanian
proportionality between the extent of the continental coast, and Tsyganka Island, Cape Tarkhankut and Cape
shelf areas appertaining to each State and the length of Khersones on the Ukrainian coast. It considered it
its coast measured in the general direction of the inappropriate to select any base points on Serpents’
coastline, taking into account the effects, actual or Island (belonging to Ukraine). The Court then
prospective, of any other continental shelf delimitations proceeded to establish the provisional equidistance line
in the same region. as follows :
MARITIME DELIMITATION IN THE BLACK “In its initial segment the provisional equidistance line
SEA (ROMANIA v. UKRAINE) 2009, ICJ between the Romanian and Ukrainian adjacent coasts is
controlled by base points located on the landward end
FACTS: On 16 September 2004, Romania filed an of the Sulina dyke on the Romanian coast and south-
Application instituting proceedings against Ukraine in eastern tip of Tsyganka Island on the Ukrainian coast.
respect of a dispute concerning “the establishment of a
It runs in a south-easterly direction, from a point lying
single maritime boundary between the two States in
2019, EH 402) Jerusalem, 1961
midway between these two base points, until Point A In the operative clause of its Judgment, the Court found
(with co-ordinates 44° 46′ 38.7ʺ N and 30°58′ 37.3ʺ E) unanimously that :
where it becomes affected by a base point located on
the Sacalin Peninsula on the Romanian coast. At Point “starting from Point 1, as agreed by the Parties in
A the equidistance line slightly changes direction and Article 1 of the 2003 State Border Régime Treaty, the
continues to Point B (with co-ordinates 44°44′ 13.4ʺ N line of the single maritime boundary delimiting the
and 31°10′ 27.7ʺ E) where it becomes affected by the continental shelf and the exclusive economic zones of
base point located on Cape Tarkhankut on Ukraine’s Romania and Ukraine in the Black Sea shall follow the
opposite coasts. At Point B the equidistance line turns 12-nautical-mile arc of the territorial sea of Ukraine
south-south-east and continues to Point C (with co- around Serpents’ Island until Point 2 (with co-ordinates
ordinates 44°02′ 53.0ʺ N and 31°24′ 35.0ʺ E), 45°03′ 18.5ʺ N and 30°09′ 24.6ʺ E) where the arc
calculated with reference to base points on the Sacalin intersects with the line equidistant from Romania’s and
Peninsula on the Romanian coast and Capes Ukraine’s adjacent coasts. From Point 2 the boundary
Tarkhankut and Khersones on the Ukrainian coast. line shall follow the equidistance line through Points 3
From Point C the equidistance line, starting at an (with co-ordinates 44°46′ 38.7ʺ N and 30°58′ 37.3ʺ E)
azimuth of 185°23′ 54.5ʺ, runs in a southerly direction. and 4 (with co-ordinates 44° 44′ 13.4ʺ N and 31° 10′
This line remains governed by the base points on the 27.7ʺ E) until it reaches Point 5 (with co-ordinates 44°
Sacalin Peninsula on the Romanian coast and Capes 02′ 53.0ʺ N and 31° 24′ 35.0ʺ E). From Point 5 the
Tarkhankut and Khersones on the Ukrainian coast. maritime boundary line shall continue along the line
From Point C the equidistance line, starting at an equidistant from the opposite coasts of Romania and
azimuth of 185°23′ 54.5ʺ, runs in a southerly direction. Ukraine in a southerly direction starting at a geodetic
This line remains governed by the base points on the azimuth of 185°23′ 54.5ʺ until it reaches the area where
Sacalin Peninsula on the Romanian coast and Cape the rights of third States may be affected.”
Khersones on the Ukrainian coast.”
The Court then turned to the examination of the continental shelf and the exclusive economic zones
relevant circumstances which might call for an of Romania and Ukraine in the Black Sea shall follow
adjustment of the provisional equidistance line, the 12-nautical-mile arc of the territorial sea of Ukraine
considering six potential factors : (1) the possible around Serpents’ Island until Point 2 (with co-ordinates
disproportion between coastal lengths ; (2) the enclosed 45°03′ 18.5ʺ N and 30°09′ 24.6ʺ E) where the arc
nature of the Black Sea and the delimitations already intersects with the line equidistant from Romania’s and
effected in the region ; (3) the presence of Serpents’ Ukraine’s adjacent coasts. From Point 2 the boundary
Island in the area of delimitation ; (4) the conduct of the line shall follow the equidistance line through Points 3
Parties (oil and gas concessions, fishing activities and (with co-ordinates 44°46′ 38.7ʺ N and 30°58′ 37.3ʺ E)
naval patrols) ; (5) any potential curtailment of the and 4 (with co-ordinates 44° 44′ 13.4ʺ N and 31° 10′
continental shelf or exclusive economic zone 27.7ʺ E) until it reaches Point 5 (with co-ordinates 44°
entitlement of one of the Parties ; and (6) certain 02′ 53.0ʺ N and 31° 24′ 35.0ʺ E). From Point 5 the
security considerations of the Parties. The Court did not maritime boundary line shall continue along the line
see in these various factors any reason that would equidistant from the opposite coasts of Romania and
justify the adjustment of the provisional equidistance Ukraine in a southerly direction starting at a geodetic
line. In particular with respect to Serpents’ Island, it azimuth of 185°23′ 54.5ʺ until it reaches the area where
considered that it should have no effect on the the rights of third States may be affected.”
delimitation other than that stemming from the role of
the 12-nautical-mile arc of its territorial sea. 2) Good faith
Finally, the Court confirmed that the line would
not lead to an inequitable result by comparing the ratio NUCLEAR TESTS CASES (NEW ZEALAND v.
of coastal lengths with the ratio of relevant maritime
FRANCE), 1974, ICJ
areas. The Court noted that the ratio of the respective
coastal lengths for Romania and Ukraine was
FACTS: France had carried out atmospheric tests of
approximately 1:2.8 and the ratio of the relevant
nuclear devices in the territory of French Polynesia in
maritime areas was approximately 1:2.1.
2019, EH 402) Jerusalem, 1961
the years 1966, 1967, 1968, 1970, 1971, and 1972. The United States. After examining the facts, the Court
main firing site used has been Mururoa atoll, some finds it established that on a date in late 1983 or early
2,500 nautical miles from the nearest point of the North 1984, the President of the United States authorized a
Island of New Zealand. United States Government agency to lay mines in
The testing of nuclear devices in the Nicaraguan ports; that in early 1984 mines were laid in
atmosphere has entailed the release into the atmosphere or close to the ports of El Bluff, Corinto, and Puerto
measureable quantities of radio-active matter. It is Sandino, either in Nicaraguan internal waters or in its
asserted by New Zealand that the nuclear tests have territorial sea or both, by persons in the pay and acting
caused some fall-out of this kind to be deposited on on the instructions of that agency, under the supervision
New Zealand territory. and with the logistic support of United States agents’
However, on 25 July at a press conference, the that neither before the laying of the mines, nor
President of France said: subsequently, did the United States Government issue
". . . on this question of nuclear tests, you any public and official warning to international
know that the Prime Minister had publicly shipping of the existence and location of the mines; and
expressed himself in the National Assembly in that personal and material injury was caused by the
his speech introducing the Government's
programme. He had indicated that French explosion of the mines, which also created risks
nuclear testing would continue. I had myself causing a rise in marine insurance rates.
made it clear that this round of atmospheric
tests would be the last, and so the members of ISSUE: Is the laying of mines by the USA in the
the Government were comp!etely informed
of our intentions in this respect...”
waters of another state a violation of international law?
ISSUE: On what basis can unilateral declarations be RULING: [215-220] The Court observes that the
relied on? laying of mines in the waters of another State without
any warning or notification is not only an unlawful act
RULING: [49] One of the basic principles governing but also a breach of the principles of humanitarian
the creation and performance of legal obligations, law underlying the Hague Convention No. WII of
whatever their source, is the principle of good faith. 1907. This consideration leads the Court on to
Trust and confidence are inherent in international CO- examination of the international humanitarian law
operation, in particular in an age when this CO- applicable to the dispute. Nicaragua has not expressly
operation in many fields is becoming increasingly invoked the provisions of international humanitarian
essential. Just as the very rule of pacta sunt servanda in law as such, but has complained of acts committed on
the law of treaties is based on good faith, so also is the its territory which would appear to be breaches thereof.
binding character of an international obligation In its submissions it has accused the United States of
assumed by unilateral declaration. Thus interested having killed, wounded and kidnapped citizens of
States may take cognizance of unilateral declarations Nicaragua. Since the evidence available is insufficient
and place confidence in them, and are entitled to for the purpose of attributing to the United States the
require that the obligation thus created be respected. acts committed by the contras, the Court rejects this
submission.
3) Pacta sunt servanda The question however remains of the law
4) Elementary considerations of humanity applicable to the acts of the United States in relation to
the activities of the contras. Although Nicaragua has
refrained from referring to the four Geneva
MILTARY AND PARAMILITARY ACTIVITIES Conventions of 12 August 1949, to which Nicaragua
IN AND AGAINST NICARAGUA (NICARAGUA and the United States are parties, the Court considers
v. USA), 1986, ICJ that the rules stated in Article 3, which is common to
the four Conventions, applying to armed conflicts of a
FACTS: Nicaragua alleges that the mining of non-international character, should be applied. The
Nicaraguan ports or waters was carried out by United United States is under an obligation to "respect" the
States military personnel or persons of the nationality Conventions and even to "ensure respect" for them and
of Latin American countries in the pay of the
2019, EH 402) Jerusalem, 1961
thus not to encourage persons or groups engaged in LEGALITY OF THE THREAT OR USE OF
the conflict in Nicaragua to act in violation of the NUCLEAR WEAPONS ADVISORY OPINION,
provisions of Article 3. This obligation derives from 1996, ICJ
the general principles of humanitarian law to
which the Conventions merely give specific expression. FACTS: The UN General Assembly requested an
[215] It has already been made clear that in advisory opinion from the International Court of Justice
peacetime for one State to lay mines in the internal or asking, "Is the threat or use of nuclear weapons in any
territorial waters of another is an unlawful act; but in circumstance permitted under international law?"
addition, if a State lays mines in any waters whatever in There were states that argued that nuclear
which the vessels of another State have rights of access weapons should be prohibited as it is customary
or passage, and fails to give any warning or notification international law. Specifically, they refer to a consistent
whatsoever, in disregard of the security of peaceful practice of non-utilization of nuclear weapons by States
shipping, it commits a breach of the principles of since 1945 and they would see in that practice the
humanitarian law underlying the specific provisions of expression of an opinio juris on the part of those who
the Convention No. VIII of 1907. Those principles possess such weapons. (65, p.31).
were expressed by the Court in the Corfu Channel case These states also cite a series of General Assembly
as follows: resolutions, beginning with resolution 1653 (XVI) of
“certain general and well recognized 24 November 1961, that deal with nuclear weapons and
principles, namely: elementary considerations of that affirm, with consistent regularity, the illegality of
humanity, even more exacting in peace than in war.” nuclear weapons, signify the existence of a rule of
[217] It is significant in this respect, that international customary law which prohibits recourse to
according to the terms of the Conventions, the those weapons. (68, p. 32)
denunciation of one of them, “shall in no way impair Some other States, which assert the legality of
the obligations which the Parties to the conflict shall the threat and use of nuclear weapons in certain
remain bound to fulfil by virtue of the principles of the circumstances, invoked the doctrine and practice of
law of nations, as they result from the usages deterrence in support of their argument. They recall that
established among civilized peoples, from the laws of they have always, in concert with certain other States,
humanity and the dictates of the public conscience.” reserved the right to use those weapons in the exercise
(Convention I, ART 63; Convention II, ART 62; of the right to self-defence against an armed attack
Convention III, ART 142; Convention IV, ART 158.) threatening their vital security interests. In their view, if
ART 3 which is common to all four Geneva nuclear weapons have not been used since 1945, it is
Conventions of 12 August 1949 defines certain rules not on account of an existing or nascent custom but
to be applied in the armed conflicts of a non- merely because circumstances that might justify their
international character. There is no doubt that, in the use have fortunately not arisen. (66, p.32) They also
event of international armed conflicts, these rules also state that those resolutions are not binding and
constitute a minimum yardstick, in addition to the more therefore do not confirm that there is a customary
elaborate rules which are also to apply to international international law against it.
conflicts; and they are rules which, in the Court’s
opinion, reflect what the Court in 1949 called ISSUE: Whether recourse to nuclear weapons must be
“elementary considerations of humanity” (Corfu considered as illegal in the light of the principles and
Channel, 1949, par. 215). rules of international humanitarian law applicable in
The Court may therefore find them applicable armed conflict and of the law of neutrality?
to the present dispute, and is thus not required to decide
what role the United States multilateral treaty RULING: [74-87] Not having found a conventional
reservation might otherwise play in regard to the rule of general scope, nor a customary rule specifically
treaties in question. proscribing the threat or use of nuclear weapons per se,
the Court then deals with the question whether recourse
to nuclear weapons must be considered as illegal in the
light of the principles and rules of international
2019, EH 402) Jerusalem, 1961
humanitarian law applicable in armed conflict and of use of nuclear weapons, the Court notes that nuclear
the law of neutrality. weapons were invented after most of the principles and
After sketching the historical development of the body rules of humanitarian law applicable in armed conflict
of rules which originally were called "laws and customs had already come into existence; the Conferences of
of war" and later came to be termed "international 1949 and 1974-1977 left these weapons aside, and
humanitarian law", the Court observes that the there is a qualitative as well as quantitative difference
cardinal principles contained in the texts constituting between nuclear weapons and all conventional arms.
the fabric of humanitarian law are the following.: However, in the Court's view, it cannot be concluded
The first is aimed at the protection of the from this that the established principles and rules of
civilian population and civilian objects and establishes humanitarian law applicable in armed conflict did not
the distinction between combatants and non- apply to nuclear weapons. Such a conclusion would be
combatants; States must never make civilians the object incompatible with the intrinsically humanitarian
of attack and must consequently never use weapons character of the legal principles in question which
that are incapable of distinguishing between civilian permeates the entire law of armed conflict and applies
and military targets. According to the second principle, to all forms of warfare and to all kinds of weapons,
it is prohibited to cause unnecessary suffering to those of the past, those of the present and those of the
combatants: it is accordingly prohibited to use weapons future. In this respect it seems significant that the thesis
causing them such harm or uselessly aggravating their that the rules of humanitarian law do not apply to the
suffering. In application of that second principle, States new weaponry, because of the newness of the latter, has
do not have unlimited freedom of choice of means in not been advocated in the present proceedings.
the weapons they use. [105] For these reasons the Court unanimously,
The Court also refers to the Martens Clause, holds that a threat or use of nuclear weapons should
which was first included in the Hague Convention I1 also be compatible with the rules of international
with Respect to the Laws and Customs of War on humanitarian law.
Land of 1899 and which has proved to be an effective However, in view of the current state of
means of addressing the rapid evolution of military international law, and of the elements of fact at its
technology. A modem version of that clause is to be disposal, the Court cannot conclude definitively
found in Art 1(2), of Additional Protocol I of 1977, whether the threat or use of nuclear weapons would be
which reads as follows: lawful or unlawful in an extreme circumstance of self-
"In cases not covered by this Protocol defence, in which they very survival of a State would
or by other international agreements, be at stake.
civilians and combatants remain under There exists an obligation to pursue in good
the protection and authority of the faith, and bring to a conclusion negotiations leading to
principles of international law derived nuclear disarmament in all aspects.
from established custom, from the
principles of humanity and from the 5) Not to allow knowingly one’s territory to be used
dictates of public conscience." for acts contrary to the rights of other states
The extensive codification of humanitarian law and the
extent of the accession to the resultant treaties, as well CORFU CHANNEL (UK v. ALBANIA), 1949, ICJ
as the fact that the denunciation clauses that existed in
the codification instruments have never been used, have FACTS: Oct. 22, 1946- 2 British cruisers passed
provided the international community with a corpus of through the Corfu Strait (regarded by Albania as safe)
treaty rules the great majority of which had already which is in Albanian waters. Minex exploded in the
become customary and which reflected the most area and the ships suffered damage and serious loss of
universally recognized humanitarian principles. These life.
rules indicate the normal conduct and behaviour UK aggrieved, asked the help of the Security
expected of States. Council which recommended the case to court.
Turning to the applicability of the principles Contention of UK: Albania connived with the
and rules of humanitarian law to a possible threat or Yugoslavia in laying the mines and assuming that
2019, EH 402) Jerusalem, 1961
they did not connive, still it is impossible for Albania II. Albania did not notify the presence of mine
not to have knowledge of the mines. Albania did not in its waters, at the moment when it must
notify us on the existence of the mines, contrary to the have known this—the latest after the sweep
Hague Convention VIII of 1907 in accordance with of November 13th—wheras Greece
general principles of IL and humanity. immediately inquired into the events of
Contention of Albania: We did not have knowledge Oct. 22nd. Nor did Albania proceed to a
of the mines. There is no evidence that the mines which judicial investigation. This attitude is
caused the accidents were laid by Albania. Those mines irreconcilable with alleged ignorance. On
were just placed on Nov. 13 so it could not have been the other hand, it shows that Albania,
owned by Albania. Britain violated Special Agreement desired the operation to remain secret.
concluded on March 25 1948 because UK violated its
sovereignty by passing through the Corfu Strait without III. From a geographical configuration, the Bay
its authorization. of Saranda and the channel used by
shipping, is dominated by heights offering
ISSUE: Whether it can be established by means of excellent observation points over the bay
indirect evidence, that Albania had knowledge of mine- and over the Strait. The laying of a
laying, based on: minefield in these waters could hardly fail
to have been observed by the coastal
 Albania’s attitude before and after the disaster defences.
of Oct. 22, 1946
 The feasibility of observing minelaying from IV. The laying operation itself must have
the Albanian coast required a certain time. The well-thought
laying of two rows, clearly combined
RULING: I. It is established that Albania has kept a offensive and defensive purposes. Experts
close watch over their waters of the North Corfu report it would have taken two and a half
Channel. hours. This is sufficient time to attract
 Declaration f the Albanian delegate attention of the observation posts, as the
in the Security Council distance from the nearest mine to the coast
 Diplomatic notes of Albania was only 500 meters; minelayers must have
concerning the passage of foreign passed at not more than about 500 metres
ships from the coast.
 The use of force, for example,
gunfire in the direction of Britith V. During a re-enactment by Experts on the
cruisers possibility of the mine-laying being
As the parties agree that the minefiled had been observed, and under the most favorable
recently laid, it can be concluded that the operation was conditions for avoiding discovery, it was
carried out during this period of close watch by clearly seen from St. George’s monastery,
Albanian authorities. This renders the Albanian one of the lookouts. The noise of the
assertion of ignorance apriori, improbable. motor was heard at a distance of 1,800
meters and the ship itself was sighted at
I. There were telegrams dated November 13th 670 metres. The Court gives great weight
and 27th 1946 to the Secretary-General of to the opinion of Experts who examined
the United Nations at that time raising the locality in a manner giving every
protest against the movements and activity guarantee and correct impartial
of British naval units in its territorial information.
waters. However, there was no mention
against the laying of the minefield, which if It is thus clear that the explosions of Oct. 22, 1946
effected, constituted a very serious could not have been accomplished without the
violation of her sovereignty. knowledge of the Albanian Government.
II. Soriano
Albania It must be concluded that the
Eunice Baliongdid not notify
| based on Atty.the presence
Pandi’s ofdiscussions,
syllabus, mine slides, and the books by Henriksen, Akehurst, and Shaw 35
in its waters, at the moment when it must minelaying, whatever may have been its exact
have known this—the latest after the sweep date, was done at a time when there was a close
of November 13th—wheras Greece Albanian surveillance over the Strait. If it be
immediately inquired into the events of supposed that it took place at the last possible
2019, EH 402) Jerusalem, 1961
It must be concluded that the minelaying, time of war, but on certain general and well-recognized
whatever may have been its exact date, was done at a principles, namely : elementary considerations of
time when there was a close Albanian surveillance over humanity, even more exacting in peace than in war ;
the Strait. If it be supposed that it took place at the last the principle of the freedom of maritime communication
possible moment, i.e., in the night of October 22nd, the ; and every State's obligation not to allow knowingly
only conclusion to be drawn would be that a general its territory to be used for acts contrary to the rights of
notification to the shipping of al1 States before the time other States. In fact, Albania neither notified the
of the explosions would have been difficult, perhaps existence of the minefield, nor warned the British
even impossible. But this would certainly not have warships of the danger they were approaching. But
prevented the AIlbanian authorities from taking, as they Albania's obligation to notify shipping of the existence
should have done, all necessary steps immediately to of mines in her waters depends on her having obtained
warn ships near the danger zone, more especially those knowledge of that fact in sufficient time before October
that were approaching that zone. 22nd ; and the duty of the Albanian coastal authorities
to warn the British ships depends on the time' that
When on October 22nd about 13.00 hours the elapsed between the moment that these ships were
British warships were reported by the look-out post at reported and the moment of the first explosion. In fact,
St. George's monastery to the Commander of the Albania neither notified the existence of the minefield
Coastal Defences as approaching 'Cape Long, it has nor warned the British warships of the danger.
perfectly possible for the Albanian authorities to use
the interval of almost two hours that elapsed before the
6) No-harm principle
explosion affecting Sairnznvez (14.53 hours or 14.55
hours) to warn the vessels of the danger into which they
were running. In fact, nothing was attempted by the TRAIL SMELTER CASE
Albanian authorities to prevent the disaster. These (United States v. Canada), International Arbitral
grave omissions involve the international responsibility Awards, 1905
of Albania.
FACTS: The United States (P) sought damages from
The Court therefore reaches the conclusion that Canada by suing them to court and also prayed for an
Albania is responsible under international law for the injunction for air pollution in the state of Washington,
explosions which occurred on October 22nd, 1946, in by the Trail Smelter, a Canadian corporation which is
Albanian waters, and for the damage and loss of human domiciled in Canada (D). The Tail Smelter located in
life which resulted from them, and that there is a duty British Columbia since 1906, was owned and operated
iipon Albania to pay compensation t the United by a Canadian corporation. The resultant effect of from
Kingdom. the sulfur dioxide from Trail Smelter resulted in the
damage of the state of Washington between 1925 and
1937. This led to the United States (P) suit against the
ISSUE: Whether Albania should be held responsible Canada (D) with an injunction against further air
for the explosions? pollution by Trail Smelter.
RULING: Yes, Albania should be responsible because ISSUE: Is it the responsibility of the State to protect to
the facts lead to the conclusion that it had knowledge of protect other states against harmful acts by individuals
the mines. from within its jurisdiction at all times?
[p. 22] The obligations incumbent upon the
Albanian authorities consisted in notifying, for the
RULING: Yes. It is the responsibility of the State to
benefit of shipping in general, the existence of a
protect other states against harmful act by individuals
minefield in Albanian territorial waters and in warning
from within its jurisdiction at all times. No state has the
the approaching British warships of the imminent
right to use or permit the use of the territory in a
danger to which the minefield exposed them.
manner as to cause injury by fumes in or to the
Such obligations are based, not on the Hague
territory of another or the properties or persons therein
Convention of 1907, No. VTII, which is applicable in
time of war, but on certain general and well-recognized
Eunice Soriano
principles, Baliong :| based
namely on Atty. Pandi’s
elementary syllabus, discussions,
considerations of as stipulated
slides, under
and the books the United
by Henriksen, States
Akehurst, and(P) laws 36
Shaw and the
humanity, even more exacting in peace than in war ; principles of international law.
the principle of the freedom of maritime communication By looking at the facts contained in this case, the
; and every State's obligation not to allow knowingly arbitration held that Canada (D) is responsible in
international law for the conduct of the Trail Smelter
2019, EH 402) Jerusalem, 1961
been adjudicated in favour of that party be not argued

as stipulated under the United States (P) laws and the again.
principles of international law. The Court observes that it has been suggested
By looking at the facts contained in this case, the inter alia by the Respondent that a distinction may be
arbitration held that Canada (D) is responsible in drawn between the application of the principle of res
international law for the conduct of the Trail Smelter judicata to judgments given on the merits of a case and
Company. Hence, the onus lies on the Canadian judgments determining the Court’s jurisdiction, in
government (D) to see to it that Trail Smelter’s conduct response to preliminary
should be in line with the obligations of Canada (D) as objections. The Respondent contends that the latter “do
it has been confirmed by International law. The Trail not and cannot have the same consequences as
Smelter Company will therefore be required from decisions on the merits”. The Court dismisses this
causing any damage through fumes as long as the contention, explaining that the decision on questions of
present conditions of air pollution exist in Washington. jurisdiction is given by a judgment, and Article 60 of
So, in pursuant of the Article III of the convention the Statute provides that “[t]he judgment is final and
existing between the two nations, the indemnity for without appeal”, without distinguishing between
damages should be determined by both governments. judgments on jurisdiction and admissibility, and
Finally, a regime or measure of control shall be applied judgments on the merits. The Court does not uphold the
to the operations of the smelter since it is probable in other arguments of the Respondent in respect of res
the opinion of the tribunal that damage may occur in judicata. It states that, should a party to a case believe
the future from the operations of the smelter unless they that elements have come to light subsequent to the
are curtailed. decision of the Court which tend to show that the
Court’s conclusions may have been based on incorrect
or insufficient facts, the Statute provides for only one
7) Res judicata
procedure: that under Article 61, which offers the
possibility of the revision of judgments, subject to the
APPLICATION OF THE CONVENTION ON THE restrictions stated in that Article. In this regard, it
PREVENTION AND PUNISHMENT OF THE recalls that the Respondent’s Application for revision
CRIME OF GENOCIDE (BOSNIA and of the 1996 Judgment in the case was dismissed, as not
HERZEGOVINA v. SERBIA and meeting the conditions of Article 61.
MONTENEGRO), 2007, ICJ
After having reviewed its relevant past decisions, ⎯ Application of the principle of res judicata to the
notably its 1996 Judgment on Preliminary Objections 1996 Judgment
in the case and the 2003 Judgment in the Application The Court recalls that the operative part of a
As
for stipulated
Revision case,underthetheCourt
United States (P)
considers thelaws and the
principle of judgment of the Court possesses the force of res
principles
res judicata, and itsofapplicationinternational
to the 1996 Judgment. law. judicata. The operative part of the 1996 Judgment
By lookingThe at the recalls
Court facts contained
that the inprinciple
this case,
of the
res stated that the Court found “that, on the basis of Article
arbitration held from
judicata appears that Canada
the terms(D) is responsible
of the Statute of the in IX of the Convention on the Prevention and
international law for the conduct of
Court and the Charter of the United Nations. That the Trail Smelter Punishment of the Crime of Genocide, it has
Company. Hence, the onus lies on
principle signifies that the decisions of the Court are the Canadian jurisdiction to decide upon the dispute”. According to
government
not only binding(D) toon seethe
to itparties,
that Trail
butSmelter’s
are final,conduct
in the the Court, that jurisdiction is thus established with the
should be inthey
sense that linecannot
with the beobligations
reopened by of Canada (D) as
the parties as full weight of the Court’s judicial authority. For a party
it has been
regards the confirmed
issues that by haveInternational law. The
been determined, Trail
save by to assert today that, at the date the 1996 Judgment was
Smelter
procedures, Company will therefore
of an exceptional be required
nature, specially from
laid given, the Court had no power to give it, because one of
causing
down forany thatdamage
purposethrough fumes as
(the procedure for long as the
revision set the parties can now be seen to have been unable to
present conditions of air pollution exist
down in Article 61 of the Statute). In the view of thein Washington. come before the Court is to call in question the force as
So,
Court,in two
pursuant of theunderlie
purposes Article III theofprinciple
the convention
of res res judicata of the operative clause of the Judgment.
existing
judicata:between
first, thethe two nations,
stability of legalthe indemnity
relations for
requires Therefore, the Court need not examine the
damages should
that litigation be determined
come to an end; by both governments.
secondly, it is in the Respondent’s objection to jurisdiction based on its
Finally,
interest ofa regime or measure
each party of control
that an issue whichshall be applied
has already contention as to its lack of status in 1993.
to the operations of the smelter since it is probable in
the opinion
Eunice of Baliong
Soriano the tribunal
| based onthat damage
Atty. may occur
Pandi’s syllabus, in
the future from the operations of the smelter unless they
are curtailed.
2019, EH 402) Jerusalem, 1961
Respondent has however advanced a number of Judgments, in 1999 ⎯ and even more so in 1996 ⎯ it
arguments tending to show that the 1996 Judgment is was by no means so clear as the Court found it to be in
not conclusive on the matter. It has been inter alia 2004 that the Respondent was not a Member of the
suggested that, for the purposes of applying the United Nations. Although the legal complications of
principle of res judicata to a judgment on preliminary the position of the Respondent in relation to the United
objections, the operative clause to be taken into account Nations were not specifically mentioned in the 1996
and given the force of res judicata is the decision Judgment, the Court affirmed its jurisdiction to
rejecting specified preliminary objections, rather than adjudicate upon the dispute and since the question of a
the broad ascertainment upholding jurisdiction. The State’s capacity to be a party to proceedings is a matter
Court does not uphold this contention, explaining that it which the Court must, if necessary, raise ex officio, this
does not consider that it was the purpose of Article 79 finding must as a matter of construction be understood,
of the Rules of Court to limit the extent of the force of by necessary implication, to mean that the Court at that
res judicata attaching to a judgment on preliminary time perceived the Respondent as being in a position to
objections, nor that, in the case of such judgment, such participate in cases before the Court.
force is necessarily limited to the clauses of the disposit On that basis, it proceeded to make a finding
if specifically rejecting particular objections. If any on jurisdiction which would have the force of res
question arises as to the scope of res judicata attaching judicata. The Court does not need to go behind that
to a judgment, it must be determined in each case finding and consider on what basis the
having regard to the context in which the judgment was Court was able to satisfy itself on the point. Whether
given. It may be necessary to distinguish between, first, the Parties classify the matter as one of “access to the
the issues which have been decided with the force of Court” or of “jurisdiction ratione personae”, the fact
res judicata, or which are necessarily entailed in the remains that the Court could not have proceeded to
decision of those issues; secondly any peripheral or determine the merits unless the Respondent had had the
subsidiary matters, or obiter dicta; and finally matters capacity under the Statute to be a party to proceedings
which have not been ruled upon at all. before the Court. That the FRY had the capacity to
The Court notes that the fact that it has dealt, in a appear before the Court in accordance with the Statute
number of past cases, with jurisdictional issues after was an element in the reasoning of the 1996 Judgment
having delivered a judgment on jurisdiction does not which can ⎯ and indeed must ⎯ be read into the
support the contention that such a judgment can be Judgment as a matter of logical construction.
reopened at any time, so as to permit reconsideration of
issues already settled with the force of res judicata. ⎯ Conclusion: jurisdiction affirmed
There is an essential difference between those cases
mentioned in paragraph 127 of the Judgment and the The Court concludes that, in respect of the
present case: the jurisdictional issues examined at a late contention that the Respondent was not, on the date of
stage in those cases were such that the decision on them filing of the Application instituting proceedings, a State
would not contradict the finding of jurisdiction made in having the capacity to come before the Court under the
the earlier judgment. By contrast, the contentions of the Statute, the principle of res judicata precludes any
Respondent in the present case would, if upheld, reopening of the decision embodied in the 1996
effectively reverse the 1996 Judgment. Addressing the Judgment. The Respondent has however also argued
argument of the Respondent that the issue whether the that the 1996 Judgment is not res judicata as to the
FRY had access to the Court had not been decided in further question whether the FRY was, at the time of
the 1996 Judgment, the Court notes that the statements institution of proceedings, a party to the Genocide
it made in the 2004 Judgments in the Legality of Use of Convention, and has sought to show that at that time it
Force cases do not signify that in 1996 the Court was was not, and could not have been, such a party. The
unaware of the fact that the solution adopted in the Court however considers that the reasons given for
United Nations as to the question of continuation of the holding that the 1996 Judgment settles the question of
membership of the SFRY “[was] not free from legal jurisdiction in this case with the force of res judicata
difficulties”. As the Court recognized in 2004 are applicable a fortiori as regards this contention, since
Judgments in 1999—and recognized in the 2004 on this point the 1996 Judgment was quite specific, as it
8) 9) was not on the question of capacity
2019, EH 402) Jerusalem, 1961
was not a question on the capacity to come before the violation of her sovereignty.
Court. The Court thus concludes that, as stated in the
1996 Judgment, it has jurisdiction, under Article IX of III. Albania did not notify the presence of mine
the Genocide Convention, to adjudicate upon the in its waters, at the moment when it must
dispute. It follows that the Court does not find it have known this—the latest after the sweep
necessary to consider the questions, extensively of November 13th—wheras Greece
addressed by the Parties, of the status of the immediately inquired into the events of
Respondent under the Charter of the United Nations Oct. 22nd. Nor did Albania proceed to a
and the Statute of the Court, and its position in relation judicial investigation. This attitude is
to the Genocide Convention at the time of the filing of irreconcilable with alleged ignorance. On
the Application. the other hand, it shows that Albania,
10) desired the operation to remain secret.
11)
12) 8) Circumstantial evidence
IV. From a geographical configuration, the Bay
of Saranda and the channel used by
CORFUL CHANNEL CASE
shipping, is dominated by heights offering
excellent observation points over the bay
Whether it can be established by means of indirect
and over the Strait. The laying of a
evidence, that Albania had knowledge of mine-laying,
minefield in these waters could hardly fail
based on:
to have been observed by the coastal
 Albania’s attitude before and after the disaster defences.
of Oct. 22, 1946
 The feasibility of observing minelaying from V. The laying operation itself must have
the Albanian coast required a certain time. The well-thought
I. It is established that Albania has kept a laying of two rows, clearly combined
close watch over their waters of the North offensive and defensive purposes. Experts
Corfu Channel. report it would have taken two and a half
 Declaration of the Albanian hours. This is sufficient time to attract
delegate in the Security Council attention of the observation posts, as the
 Diplomatic notes of Albania distance from the nearest mine to the coast
concerning the passage of foreign was only 500 meters; minelayers must have
ships passed at not more than about 500 metres
 The use of force, for example, from the coast.
gunfire in the direction of Britith
cruisers VI. During a re-enactment by Experts on the
As the parties agree that the minefiled had been possibility of the mine-laying being
recently laid, it can be concluded that the operation was observed, and under the most favorable
carried out during this period of close watch by conditions for avoiding discovery, it was
Albanian authorities. This renders the Albanian clearly seen from St. George’s monastery,
assertion of ignorance apriori, improbable. one of the lookouts. The noise of the
motor was heard at a distance of 1,800
II. There were telegrams dated November 13th meters and the ship itself was sighted at
and 27th 1946 to the Secretary-General of 670 metres. The Court gives great weight
the United Nations at that time raising to the opinion of Experts who examined
protest against the movements and activity the locality in a manner giving every
of British naval units in its territorial guarantee and correct impartial
waters. However, there was no mention information.
against the laying of the minefield, which if
effected, constituted a very serious It is thus clear that the explosions of Oct. 22, 1946
violation of her sovereignty.
could not have been accomplished without the
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw
39
III. Albania did not notify the presence of mine knowledge of the Albanian Government.
in its waters, at the moment when it must
have known this—the latest after the sweep It must be concluded that the
of November 13th—wheras Greece minelaying, whatever may have been its exact
2019, EH 402) Jerusalem, 1961
could not have been accomplished without the drawing on what you understand to be general
knowledge of the Albanian Government. principles of proof before a court?
It must be concluded that the minelaying,

whatever may have been its exact date, was done at a PROBLEMATIQUE
time when there was a close Albanian surveillance over
the Strait. If it be supposed that it took place at the last On 17 March 2005, during the 61st Session of
possible moment, i.e., in the night of October 22nd, the the United Nations Commission on Human Rights, the
only conclusion to be drawn would be that a general Minister of Justice of Rukaruku, Minister Mbappe,
notification to the shipping of al1 States before the time issued the following statement:
“Rukaruku is one of the countries that has ratified the
of the explosions would have been difficult, perhaps greatest number of international human rights
even impossible. But this would certainly not have instruments. In 2004 alone, our Government ratified ten
prevented the AIlbanian authorities from taking, as they of them, including those concerning the rights of women,
should have done, all necessary steps immediately to the prevention and repression of corruption, the
prohibition of weapons of mass destruction, and the
warn ships near the danger zone, more especially those environment. The few instruments not yet ratified will
that were approaching that zone. shortly be ratified and past reservations not yet
When on October 22nd about 13.00 hours the withdrawn will shortly be withdrawn.”
British warships were reported by the look-out post at Subsequently, Anduchenca filed a claim
St. George's monastery to the Commander of the against Rukaruku for alleged violation of the Genocide
Coastal Defences as approaching 'Cape Long, it has Convention. Rukaruku argued, however, that it has
perfectly possible for the Albanian authorities to use made a reservation to Article IX of the Genocide
the interval of almost two hours that elapsed before the Convention, which says:
explosion affecting Sairnznvez (14.53 hours or 14.55 “Disputes between the Contracting Parties relating to
hours) to warn the vessels of the danger into which they the interpretation, application or fulfillment of the
were running. In fact, nothing was attempted by the present Convention, including those relating to the
Albanian authorities to prevent the disaster. These responsibility of a State for genocide or for any of the
grave omissions involve the international responsibility other acts enumerated in article III, shall be submitted
of Albania. to the International Court of Justice at the request of
The Court therefore reaches the conclusion that any of the parties to the dispute.” Anduchenca argued,
Albania is responsible under international law for the on the other hand, that such reservation was effectively
explosions which occurred on October 22nd, 1946, in withdrawn by virtue of Minister Mbappe’s statement.
Albanian waters, and for the damage and loss of human Does the ICJ have jurisdiction to hear the claim of
life which resulted from them, and that there is a duty Anduchenca?
iipon Albania to pay compensation to the UK.
2.5. JUDICIAL DECISIONS
CASE STUDY
 They are a subsidiary source of law, but they carry
The State of Agnostica brings a claim against the State substantial interpretative weight.
of Reverentia, asserting that Reverentia engaged in  International Court of Justice (ICJ)—the principal
genocide against certain groups of citizens in judicial organ of the United Nations; its decisions
Agnostica. and advisory opinions are carefully examined.
Reverentia denied the allegations and challenged Q: Is the ICJ bound by its earlier decisions?
Agnostica to prove its claims. Agnostica argued that No. There is NO res judicata in international law.
the burden of proof lies with Reverentia to But the ICJ strives to maintain judicial consistency and
demonstrate that genocide did not happen. usually makes reference to its case law.
Which party would you expect to bear the burden of Q: Are judicial decisions by domestic courts included?
proof in establishing the alleged fact of genocide
drawing on what you understand to be general
Eunice Soriano
principles Baliong
of proof | based
before on Atty. Pandi’s syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 40
a court?
2019, EH 402) Jerusalem, 1961
Depending on the circumstances, decisions by Belgian and Netherlands provinces of Limburg

national courts, in particular those of courts of last instance required the enlargement of certain canals and the
such as supreme courts and constitutional courts, may also construction of new works, the two States signed in
be of relevance. Municipal decisions may additionally 1925 a new agreement designed to settle the differences
constitute state practice for the purposes of customary which had arisen in respect of the construction
international law (CIL). programmes. After the rejection of this agreement by
2.5.1. ART 59 OF THE ICJ STATUTE the Netherlands First Chamber, the Netherlands
proceeded to construct and complete the Juliana Canal,
ART 59, ICJ STATUTE the Bosscheveld Lock and the Borgharen barrage. On
its part, Belgium began the construction of the Albert
The decision of the Court has no binding force Canal, unfinished at the time of the judgment, a barrage
except between the parties and in respect of that particular at Monsin and a lock at Neerhaeren.
case. As no further progress could be made in the
settlement of the points at issue between the two States,
2.5.2. EQUITY V. EX AQUEO ET BONO the Netherlands initiated proceedings in the Court by
means of a unilateral application, based on the
EX AEQUO ET BONO= “according to the right and declarations made by both the Netherlands and
good” or “from equity and conscience.” This concept in Belgium in which they accepted the compulsory
the context of international arbitration requires that the jurisdiction of the Court under Article 36 (a) of the
parties grant arbitrator(s) power to dispense with the Statute. Belgium, on its part, made a counter-claim.
consideration of the law and consider solely what they In the course of the proceedings and at the
consider to be fair and equitable in the case at hand. suggestion of the Belgian Agent, which the Netherlands
ART 38(2) of the ICJ Statute provides that the court may Agent did not oppose, the Court visited the locality in
decides cases ex aequo et bono, but only where the parties order to see on the spot the installations, canals and
agree thereto. waterways to which the dispute related and to witness
practical demonstrations of the operations of locks and
(2) This provision shall not prejudice the power of the installations connected therewith.
Court to decide a case ex aequo et bono, if the parties The Netherlands ask the Court in the main to
agree thereto. adjudge and declare that the works already carried out
by Belgium were contrary to the Treaty of 1863, that
THE DIVERSION OF WATER FROM THE the proposed works would be contrary to it and,
RIVER MEUSE CASE (Netherlands v. Belgium), consequently, to "order Belgium a) to discontinue all
PCIJ Reports, 1937, PCIJ Series A/B No. 53; the works" listed in the Netherlands' submissions and
Individual Opinion of Mr. Hudson "to restore to a condition consistent with the Treaty of
1863 all works constructed in breach of that Treaty; b)
Facts: On May 12th, 1863, Belgium and the to discontinue any feeding held to be contrary to the
Netherlands concluded a Treaty the purpose of which said Treaty and to refrain from any further such
was "to settle permanently and definitively the regime feeding.
governing diversions of water from the Meuse for the On its part, Belgium asks the Court to declare
feeding of navigation canals and irrigation channels. the Netherlands' submissions ill-founded, as well as to
Article I of this Treaty provided for the construction adjudge and declare, in respect of the counter-claim,
below Maestricht, in Netherlands territory, of a new that the Borgharen barrage was constructed in breach of
intake which would constitute "the feeding conduit for the stipulations of the Treaty of 1863, that the Juliana
all canals situated below that town and for irrigation in Canal is subject to the provisions of the Treaty and,
the Campine and in the Netherlands. The Belgian finally, to reserve the rights accruing to Belgium from
Government accepted the Treaty not without the breaches so committed.
reluctance, in view of the fact that it provided for only
one intake and that to be situated in foreign territory. Individual Opinion of Hudson
When the economic development of the While he concurs in the judgment of the Court,
Belgian and Netherlands provinces of Limburg
Eunice Soriano
required Baliong | based of
the enlargement certain
on Atty. canals
Pandi’s and
syllabus, the
construction of new works, the two States signed in
1925 a new agreement designed to settle the differences
which had arisen in respect of the construction
programmes. After the rejection of this agreement by
2019, EH 402) Jerusalem, 1961
Mr. Hudson considers that there is room to apply here 3. Context

the principle of equity. "A sharp division between law 4. Circumstances
and equity, such as prevails in the administration of 5. The position of the minister or official stating
justice in some States, should find no place in 6. The time at which those statements were uttered
international jurisprudence. The question here is of a
general principle of law re-cognized by civilized LEGAL STATUS OF EASTERN GREENLAND, 5
nations in the sense of Article 38 of the Statute, and the April 1933, PCIJ
Court's recognition of equity as part of international
law is in no way restricted by the special power Facts: In 1919, a Committee was constituted at the
conferred on it to decide a case ex aequo et bono if the Peace Conference “for the purpose of considering the
Parties so agree. "It would seem to be an important claims that may be put forward by different countries to
principle of equity that where two parties have assumed Spitzbergen.” The Danish Minister communicated to
an identical or a reciprocal obligation; one party which the Norewegian Minister of Foreign Affairs “that the
is engaged in a continuing non-performance of that Danish Government had been anxious for some years
obligation should not be permitted to take advantage of past to obtain the recognition by all the interested
a similar non-performance of that obligation by the Powers of Denmark’s sovereignty over the whole of
other party. A tribunal, bound by international law, Greenland.”
ought not to shrink from applying a principle of such The Norwegian Minister M. Ilhen, replied to
obvious fairness. In equity, the Netherlands cannot ask him, on July 22nd “that the Norwegian Government
Belgium to discontinue the operation of the Neerhaeren would not make any difficulties in the settlement of this
Lock when the Netherlands remain free to continue the question.” This is the ILhen Declaration which is
operation of the Bosscheveld Lock. Neither of these considered below.
two requests should be granted where the Thus in 1920 and 1921, the Danish
circumstances are such that the judgment would disturb Government received assurances from Governments in
that equality which is equity. If it preserves the equality Lodon, Paris, Rome, Tokyo, and Stockholm,
between the Parties, the judgment may better serve to recognizing its sovereignty over the whole of
facilitate their negotiations on the conclusion of a new Greenland. The Norwegian Government however, was
treaty to replace that of 1863. not prepared to adopt the same attitude unless it
received an undertaking from the Danish Government
2.6. SCHOLARLY CONTRIBUTIONS AND THE that the liberty of hunting and fishing on the east coast,
INTERNATIONAL LAW COMMISSION (ILC) which Norwgians had enjoyed, should not be interfered
International Law Commission with. This, Denmark was unwilling to give,
nevertheless, in May 1921, it stated that it would rest
 Established 1947 content with the verbal undertaking given by M. Ilhen
 Two-Fold Purpose: (1) (2) in 1919.
 The composition of the Commission is intended to Meanwhile, on June 28th, 1931, some
be representative of all the principal legal systems Norwegian hunters hoisted the flag of Norway in
of the world and the members sit in their Mackenzie Bay in Eastern Greenland, and announced
individual capacities that they had occupied the territory lying between
 Commission selects topics and makes proposals Carlsberg Fjord, to the South, and Bessel Fjord, to the
for draft conventions and codifications. North, in the name of the King of Norway.
In reply to an enquiry on the part of Denmark,
 The Commission’s draft articles and commentaries
serve as valuable interpretative tools. who regarded the territory covered by this
announcement as under her sovereignty, the Norwegian
2.7 UNILATERAL STATEMENTS Government, on July 1st, stated that the occupation in
For unilateral declarations to be binding, the following question was “an entirely private act, which will not
must be considered: influence our policy.”
Nevertheless, on July 10th, 1931, it stated that
1. Intent it had felt obliged to proceed, in virtue of a Royal
2. Words
2019, EH 402) Jerusalem, 1961
Resolution of the same date, to the occupation of the New Zealand territory. However, on 25 July at a press
territories in Eastern Greenland situated between conference, the President of France said:
latitude 71° 30’ and 75° 40’ N. The territory covered by ". . . on this question of nuclear tests, you
this Resolution was denominated by Norway “Eirik know that the Prime Minister had publicly
Raudes Land”. The following day the Danish expressed himself in the National Assembly in
his speech introducing the Government's
Government submitted the question to the Court. programme. He had indicated that French
nuclear testing would continue. I had myself
ISSUE: Whether the Ilhen declaration, constitute an made it clear that this round of atmospheric
engagement obliging Norway to refrain from tests would be the last, and so the members of
the Government were comp!etely informed
occupying any part of Greenland? of our intentions in this respect...”
RULING: The Ilhen Declaration does not amount to a ISSUE: Is the unilateral statement of the French
recognition of an existing Danish sovereignty in President, binding upon the State?
Greenland, but it is nevertheless, an engagement
obliging Norway to refrain from occupying any part of RULING: These statements are binding.
Greenland. [51] Of the statements by the French
[192] A reply of this nature given by the Government...those made by the President, in view of
Minister for Foreign Affairs on behalf of his his functions, that his public communications or
government, in response to a request by the diplomatic statements, oral or written, as Head of State are in
representative of a foreign power, in regard to a international relations acts of the French state. His
question falling within his province, is binding upon statements, and those of members of the French
the country to which the Minister belongs. Government acting under his authority, up to the last
[201] The promise was unconditional and statement made by Minister of Defence constitute as a
definitive. It was in this sense that the Danish Minster whole. Thus, in whatever these statements were
understood the Ilhen declaration when the latter expressed, they must be held to constitute an
informed him “that the plans of the Royal Government engagement of the State, having regard to their
in regard to the sovereignty of Denmark over the while intention and to the circumstances in which they were
of Greenland would not encounter any difficulties on made.
the part of Norway.” [52] The Court is entitled to presume, that these
[202] It follows that, as a result of the statements were NOT made in vacuo, but in relation to
undertaking involved in the Ilhen declaration, Norway the tests which constitute the very object of the present
is under an obligation to refrain from contesting Danish proceedings, although France has not appeared in the
sovereignty over Greenland as a whole, and a fortiori to case.
refrain from occupying a part of Greenland. [53] The French Government conveyed to the world at
large, its intention to effectively terminate these tests.
NUCLEAR TESTS CASE (NEW ZEALAND v. It was bound to assume that other States might take
note of these statements and rely on their being
FRANCE), 20 DECEMBER 1974, ICJ
effective. It is from the actual substance of these
Facts: France had carried out atmospheric tests of statements and from the circumstances attending their
making that the legal implications of the unilateral act
nuclear devices in the territory of French Polynesia in
must be deduced. The objects of these statements are
the years 1966, 1967, 1968, 1970, 1971, and 1972. The
main firing site used has been Mururoa atoll, some clear and they were addressed to the international
2,500 nautical miles from the nearest point of the North community as a whole, and the Court holds that they
constitute an undertaking possessing legal effect.
Island of New Zealand.
The Court considers that the President of the
The testing of nuclear devices in the
atmosphere has entailed the release into the atmosphere Republic, gave an undertaking to the international
community to which is words were addressed.
measureable quantities of radio-active matter. It is
[46] Declarations made by way of unilateral
asserted by New Zealand that the nuclear tests have
caused some fall-out of this kind to be deposited on acts, concerning legal or factual situations may have the
New Zealand territory.
Eunice Soriano
However,Baliong
on |25
based
JulyonatAtty. Pandi’s
a press syllabus, discussions,
conference, the slides, and the books by Henriksen, Akehurst, and Shaw 43
President of France said:
". . . on this question of nuclear tests, you
know that the Prime Minister had publicly
expressed himself in the National Assembly in
2019, EH 402) Jerusalem, 1961
effect of creating legal obligations. When it is the ARMED ACTIVITIES ON THE TERRITORY OF
intention of the State making the declaration that it CONGO (DEMOCRATIC REPUBLIC OF
should become bound according to its terms, that CONGO v. RWANDA) 2005, ICJ
intention confers on the declaration the character of a
legal undertaking, the State legally required to follow a Facts: When President Kabila came to power, the
course of conduct consistent with the declaration. influence in the DRC of Uganda, and in particular of
An undertaking of this kind, if given publicly, Rwanda, became substantial. It states that from late
and with an intent to be bound, even though not made Spring 1998 President Kabila sought, for various
within the context of international negotiations, is reasons, to reduce this foreign influence. On 28 July
binding. In these circumstances, there is no need for 1998, an official statement by President Kabila was
any acceptance of the declaration, nor even any reply published, in which he announced that he “had just
or reaction from other States since such a requirement terminated, with effect from . . . Monday 27 July 1998,
would be inconsistent with the strictly unilateral nature the Rwandan military presence which has assisted us
of the juridical act by which the pronouncement of the during the period of the country’s liberation” and
State was made. concluded that “this marks the end of the presence of
all foreign military forces in the Congo”.
Q: But how is intention to be determined? The DRC contends that, although there was no
[47] Intention is to be ascertained by specific reference to Ugandan troops in the statement,
interpretation of the act. When states make statements the final phrase indicated that consent was withdrawn
by which their freedom of action is to be limited, a for Ugandan as well as Rwandan troops. Uganda, for its
restrictive interpretation is called for. part, maintains that the President’s statement was
directed at the Rwandan forces alone arguing that it
Q: Should they be in a particular form to be binding? made no mention of the Ugandan armed forces that
[48] Whether a statement is made orally or in were then in the DRC pursuant to President Kabila’s
writing makes no essential difference, for such earlier invitation.
statements made in particular circumstances may create ISSUE: Is the statement of President Kabila an
commitments in international law, which does not indication of withdrawal of the Ugandan armed forces?
require that they should be couched in written form. RULING: [51] No particular formalities would have
The sole relevant question is whether the language been required for the DRC to withdraw its consent to
employed in any given declaration does reveal a clear the presence of Ugandan troops on its soil. As to the
intention. context of President Kabila’s statement, the Court
observes that, as a purely textual matter, the statement
RATIONALE (take note of this, so beautifully was ambiguous.
expressed by the court) [52] Whatever interpretation may be given to
[49] whatever, their source, one of the basic President Kabila’s statement of July 29 1998, any
governing principles governing the creation earlier consent by the DRC to the presence of Ugandan
and observance of legal obligations, is the principle of troops had been withdrawn at the Victoria Falls
good faith. Trust and confidence are inherent in Summit in 8 August 1998.
international cooperation. Just as the rule of pacta sunt [293] Waivers and renunciations of claims or
servanda in the law of treaties is based on good faith, rights must either be expressly or unequivocally
so also is the binding character of an international implied from the conduct of the State alleged to have
obligation assumed by a unilateral declaration. Thus, waived or renounced its right.
interested States may take cognizance of unilateral Similarly, the International Law Commission
declaration and place confidence in them, and are in its commentary on ART 45 of the Draft Articles on
entitled to require that the obligation thus created be Responsibility of States for internationally wrongful
respected. acts, points out that “although it may be possible to
infer a waiver from the conduct of the States concerned
from a unilateral statement, the conduct or statement
must be unequivocal.”
2019, EH 402) Jerusalem, 1961
Atty Pandi: Ambiguous statements do NOT make law. It and which can be modified only by a subsequent norm of
must be specific and must not be ambiguous. general international law having the same character
2.8. HIERARCHY OF SOURCES QUESTIONS RELATING TO THE OBLIGATION

Atty Pandi: The international legally system, is a TO PROSECUTE OR EXTRADITE (BELGIUM v.
horizontal legal order without a hierarchy. All legal SENEGAL), 2012, ICJ
sources are deemed to have the same normative values.
Facts: Mr. Hissene Habre was the President of the
Q: How are conflicts in sources resolved, if they are Republic of Chad for 8 years. (Habre is an evil man.
equal in normative value? He has raped, tortured, and killed his people under a
By determining which of the conflicting norms Messianic regime [sounds familiar?]. The case does
should prevail in a particular case. They are NOT resolved not talk about him substantially, so I suggest that you
by granting one of the sources a higher normative value read up on him separately during your free time.)
than the other. After his ousting in 1990, and after a brief stay
in Cameroon, he requested political asylum from
Exceptions to the General Presumption of Normative Senegal, and his request was granted. In 25 January
Equality: 2000, Chadian nationals filed a complaint against him
in the Dakar (capital of Senegal) Tribunal regional
1) Peremptory norms/ jus cogens hors classe.Unfortunately, Habre was not prosecuted
2) Obligations erga omnes because the Senegalese Courts held that it had no
3) Obligations under the UN Charter—the jurisdiction over him as he is not Senegalese, and the
obligations under the Charter prevail if they are in complaints against him were from Chadian nationals.
conflict with obligations under any other
international agreement. (ART 103, UN Charter) In 2005, Belgium requested extradition, but Senegalese
courts held that it had no jurisdiction on the matter.
2.8.1. JUS COGENS Senegal referred such case to the African Union.
ART 53, Vienna Convention on the Law of Treaties
On February 2009, Belgium instituted proceedings
Treaties conflicting with a peremptory norm of general against Senegal, alleging that Senegal did not comply
international law (“jus cogens”). A treaty is void, if, at the with its obligation to prosecuteHabre, or to extradite
time of its conclusion, it conflicts with a peremptory norm him to Belgium for purposes of criminal proceedings.
of general international law. For the purposes of the This obligation stems from the maxim, autdedereaut
present Convention, a peremptory norm of general judicare.
international law, is a norm accepted and recognized by the
international community of States as a whole as a norm Belgium based its claims on the United Nations
from which no derogation is permitted and which can be Convention Against Torture and other Cruel, Inhuman
modified only by a subsequent norm of general or Degrading Treatment or Punishment (UNCAT), as
international law having the same character. well as on customary international law. Two
obligations must be taken note of:
ART 64, VCLT
1. The obligation under Article 6(2) of the
Emergence of a new peremptory norm of general UNCAT which states that, “the State in whose
international law (“jus cogens’). If a new peremptory territory a person alleged to have committed
norm of general international law emerges, any existing acts of torture is present “shall immediately
treaty which is in conflict with that norm becomes void make a preliminary inquiry into the facts.”
and terminates. 2. The obligation under Article 7(1) of the
UNCAT which provides: “The State party in
Peremptory norms/jus cogens—norms accepted and the territory under whose jurisdiction a person
recognized by the international community of States as a alleged to have committed any offence referred
whole as a norm from which no derogation is permitted to in Article 4 is found shall in the cases
contemplated in Article 5, if it does not
extradite him, submit the case to its competent
authorities for the purpose of prosecution.”
Issue 1: Whether being a party to the Convention is

2019, EH 402) Jerusalem, 1961
to in Article 4 is found shall in the cases or extradite? And if it did, when did this obligation
contemplated in Article 5, if it does not arise?
extradite him, submit the case to its competent [97] The prohibition of torture is part of customary
authorities for the purpose of prosecution.” international law and it has become a peremptory norm
(jus cogens). That prohibition is grounded in a
Issue 1: Whether being a party to the Convention is widespread international practice and on the opinion
sufficient for a State to be entitled to bring a claim juris of States. It appears in numerous international
to the Court concerning the cessation of alleged instruments, and has been introduced into the domestic
violations by another State party of its obligations law of almost all states.
under that instrument.
[100] However, the “obligation to prosecute” under the
[68] The State parties to the Convention have a Covention applies only to facts having occurred
common interest to ensure, that acts of torture are AFTER the entry into force of the State concerned.
prevented and that, if they occur, their authors do not ART 28 of the VCLT provides that the provisions of a
enjoy impunity. Obligation of a State party to submit treaty, “do not bind a party in relation to any act or fact
a case for prosecution is triggered by the presence of which took place or any situation which ceased to exist
the alleged offender in its territory regardless of the before the date of the entry into force…”
nationality of the offender or the victims, or of the
place where the alleged offense occurred. [102] Senegal’s obligation to prosecute does NOT
apply to acts alleged to have been committed BEFORE
All other State parties have a common interest the Convention entered into force for Senegal (26 June
in compliance with these obligations by the State in 1987) however, nothing in that instrument prevents it
whose territory the alleged offender is present. These from doing so.
obligations are called “obligations erga omnes partes,”
which implies a common interest that the obligations in Senegal contends that because of financial difficulties,
question are owed by ANY state party to ALL OTHER it was not able to create institutional mechanisms under
states parties to the Convention. its domestic law to prosecute Habre immediately. It
posits however that it has endeavored to follow the
This is similar to the Convention on the legal procedure in the Convention, and it has no
Prevention and Punishment of the Crime of Genocide obligation to extradite [93].
where contracting States do NOT have any interests of
their own they merely have, one and all, a common Belgium posits that Senegal should have extradited, if it
interest, namely the accomplishment of the raison were not able to prosecute. And such delay in the
d’etre of the Convention. ANY state party may invoke proceedings have negative consequences [27].
the responsibility of another State party with the view Senegal had the obligation to prosecute the moment the
to ascertaining the alleged failure to comply with its Convention took into force in 1987. It should have
obligations erga omnes partes. prepared institutional mechanisms so that its domestic
courts would have universal jurisdiction over cases
[70] Thus Belgium has standing, as a State involving violations of the UNCAT. It cannot use its
party to the Convention Against Torture to invoke the domestic law as an excuse for such violations (Article
responsibility of Senegal for the alleged breach of its 27 of the VCLT) [113].
obligations under ART 6, par. 2
The Court agrees with Belgium that if the State in
[69] This common interest entitles each state whose territory the suspect is present has received a
party to the Convention to make a claim concerning the request for extradition, it should have agreed to such
alleged breach by another State party. ANY State party extradition, in light of the purpose of the Convention.
may invoke the responsibility In this case, Senegal did not accede to the request of
Belgium.Hence, Senegal breached, and remained to be
Issue 2: Did Senegal have the obligation to prosecute in breach of the Convention [117].
orEunice
extradite?
Soriano And if |itbased
Baliong did,onwhen did this
Atty. Pandi’s obligation
syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 46
arise?
In 2005, Belgium requested extradition, but
[97] The prohibition of torture is part of customary Senegalese courts held that it had no jurisdiction on the
international law and it has become a peremptory norm matter. Senegal referred such case to the African
2019, EH 402) Jerusalem, 1961
2.8.2. OBLIGATIONS ERGA OMNES Issue: Whether the Belgian government, had the right
Erga omnes obligations—normatively superior in the to exercise diplomatic protection of Belgian
sense that they are not merely owned to another state but to shareholders in a company which is a jurisdic entity
the “international community as a whole.” incorporated in Canada, the measures complained of
having been taken in relation not to any Belgian
 Breaches of the norms, unlike breaches of other national but to the company itself.
legal obligations can be invoked by any state and Ruling: [33] distinction should be drawn between the
not just by those which are the immediate obligations of a State towards the international
beneficiaries of the obligation. community as a whole, and those arising vis-à-vis
 In practice, erga omnes include the norms of jus another State in the field of diplomatic protection. The
cogens. former are concern of ALL States, by their very nature
and the importance of the rights involved, and are
called erga omnes.
BARCELONA TRACTION, LIGHT AND POWER
Examples include: outlawing aggression,
CO. 1970, ICJ
genocide, also the principles concerning basic rights of
the human person, protection from slavery and racial
Facts: Belgium filed a case against Spain seeking
discrimination.
reparation for damage allegedly caused to the
[35] Obligations the performance of which is
Barcelona Traction, Light and Power Company on
the subject of diplomatic protection are NOT of the
account that acts of Spain were contrary to international
same category. In such an obligation, it CANNOT be
law. According to Belgium, the company’s share
held that ALL states have a legal interest. To bring a
capital came to be very largely held by Belgian
claim, a State MUST first establish its right to do so. It
nationals and a very high percentage of shares has since
rests on two propositions:
then continuously belonged to Belgian nationals.
1) defendant State has broken an obligation
Barcelona Traction, Light and Power Company
towards the national state in respect of its nationals
is a holding company incorporated in Canada. It owned
2) only the party to whom an international
subsidiary companies and supplied the major part of
obligation is due can bring a claim in respect of its
Catalonia’s (Spain) electricity requirements during the
breach
Spanish Civil War. During the WW I, most of its shares
Barcelona Traction having been incorporated
were held by Belgian nationals but transferred to
under Canadian law and having its registered office
American nationals to protect these securities in the
inToronto, it is of Canadian nationality and Canada is
event of Belgian territory in WW II.
qualified to protectit.The Belgian government failed to
prove that the Spanish government has broken an
Barcelona Traction issued bonds secured by
obligation towards its nationals.
trust deeds by National Trust Company of Toronto. The
[41] the concept and structure of a company is
Spanish government, however, refused to authorized
a distinction between the separate entity of the
foreign currency transfers which will be used to repay
company and that of the shareholder, each with a
the debts on the bonds. It contends that the Belgian
distinct set of rights. The company alone, through its
nationality of the shareholders were not proven and that
directors or management, can take action in respect of
the trustees or nominees must be regarded as the true
matters that are of a corporate character.
owners.
[44] notwithstanding the separate corporate
personality, a wrong done to the company frequently
A petition for bankruptcy was filed. A
causes prejudice to its shareholders. But the mere fact
judgment declared the company bankrupt and for the
that damage is sustained by BOTH company and
seizure of assets of the company. Following the
shareholder does NOT imply that BOTH are entitled to
declaration of bankruptcy, the Belgian government
claim compensation.
brought an action for damages against Spain on the
[46] damage was suffered does NOT ipso facto
ground that its nationals, as shareholders, had been
justify a diplomatic claim. Persons suffer damage or
seriously harmed by the actions of Spain.
harm in most varied circumstances but this in itself
Issue:
Eunice Soriano
Whether Baliong | based
the Belgian on Atty. Pandi’s
government, had syllabus, discussions,
the right to slides, and thedoes
booksNOT involveAkehurst,
by Henriksen, the obligation
and Shaw to47 make
reparation. Not a mere interest affected but SOLELY
exercise diplomatic protection of Belgian shareholders
A RIGHT INFRINGED
in a company which is a jurisdic entity incorporated in
Canada, the measures complained of having been taken
[47] Situation is different if the act complained
2019, EH 402) Jerusalem, 1961
international law authorizes the national State of the

does NOT involve the obligation to make reparation.
company alone to make a claim. Secondary only is the
Not a mere interest affected but SOLELY A RIGHT
right of the national State of the shareholders. In this
INFRINGED.
case, the legal identity of Barcelona Traction has not
[47] Situation is different if the act complained
yet ceased to exist. As such, it is the Canadian
is aimed at the direct rights of the shareholders.
government that has the original right to exercise its
[86] The Belgian Government would be
diplomatic protection.
entitled to bring a claim if it could show that one of its
rights had been infringed and that the acts complained
[103] the Court REJECTS the Belgian Government’s
of involved the breach of an international obligation
claim.
arising out of a treaty or a general rule of law. A claim
can accordingly be made when investments by a State's
nationals abroad are thus prejudicially affected, and EAST TIMOR (PORTUGAL v. AUSTRALIA),
that since such investments are part of a State's national 1995, ICJ
economic resources, any prejudice to them directly
involves the economic interest of the State. However, FACTS: East Timor was a colony of Portugal. Latter
there were no treaties nor special agreements in this remained there until 1975. Western part of the island
case. came under Dutch rule and later became part of
[96] The Court considers that the adoption of Indonesia. Since their departure, Indonesia has
the theory of diplomatic protection of share holders occupied and has remained under its effective control.
could create an atmosphere of confusion and insecurity Later, the question of East Timor became the
in international economic relations. The danger would subject of the General Assembly, Security Council
be all the greater as the shares of companies whose resolutions which called upon all states to respect the
activity is international are widely scattered and territorial integrity of East Timor and its people’s
frequently change hands. The right, therefore, of inalienable right to self-determination, calling upon
protection belonging to the national States of the Indonesia to withdraw, without delay all its forces from
shareholders were considered as only secondary to the territory and further called on Portugal, as
that of the national State of the company. Being a administering power to cooperate with the UN to
secondary right, it only comes into existence at the time enable the people to exercise freely their right to self-
when the original right ceases to exist. So, even though determination.
Barcelona Traction has lost all its assets in Spain and This incorporation of Indonesia was recognized
was placed in receivership in Canada, its corporate by Australia de facto. Prior to this, Australia and
identity was not lost. It has not become incapable in Indonesia had established a delimitation of the
law of defending its own rights and the interests of the continental shelf between their respective coasts but it
shareholders. stopped shorted on either side of the continental shelf
[71] The traditional rule attributes the right of between the south coast of East Timor and the north
diplomatic protection of a corporate entity to the coast of Australia. Since it did not come to fruition, the
State under the laws of which it is incorporated and in two countries turned to the possibility of joint
whose territory it has its registered office. In this case, exploration and exploitation of the resources. A Treaty
the company was incorporated in Canada and remained was concluded whereby a Zone of Cooperation was
under Canadian law for over 50 years, maintained an created in East Timor.
office there and even conducted board meetings there Thus Portugal enters the picture, maintaining
even if it conducted commercial activities outside that in negotiating and concluding a treaty in 1989,
Canada. The Canadian government exercised its Australia has acted unlawfully and has infringed the
diplomatic protection in respect of the Barcelona right of the people of East Timor to self-determination
Traction company even if it ceased its diplomatic and the permanent sovereignty over its natural
protection later on. resources.
It follows that where it is a question of an ISSUE: Did Australia violate the right of the people of
unlawful act committed against a company East Timor to self-determination when it concluded a
representing foreign capital, the general rule of treaty with Indonesia?
2019, EH 402) Jerusalem, 1961
RULING: [29] It maintains, in effect, that the rights 2.9. NON-BINDING COMMITMENTS AND THE
which Australia allegedly breached were rights erga CONCEPT OF “SOFT LAW” INSTRUMENTS
omnes and that accordingly Portugal could require it
individually, to respect them regardless of whether or Soft law—norms of behaviour of a non-legally binding
not another State had conducted itself in a similarly nature. Creation of a soft law instrument is generally
unlawful manner. faster and more flexible way to establish an expectation of
In the Court's view, Portugal's assertion that the behaviour
right of peoples to self-determination, as it evolved
from the Charter and from United Nations practice, has  Particularly prevalent in international
an erga omnes character, is irreproachable. The environmental law where most of the instruments
principle of self-determination of peoples has been (ex. 1972 Stockholm Declaration, 1992 Rio
recognized by the United Nations Charter and in the Declaration) are of a non-binding character
jurisprudence of the Court it is one of the essential  Also prevalent in the young and highly politicized
principles of contemporary international law. However, field of international cyber security
the Court considers that the erga omnes character of a  Soft law crystallizes into hard law if it is adopted
norm and the rule of consent to jurisdiction are two with broad or even universal support
different things. Whatever the nature of the obligations
invoked, the Court could not rule on the lawfulness of Examples:
the conduct of a State when its judgment would imply
an evaluation of the lawfulness of the conduct of  Resolutions and recommendations of the UN
another State which is not a party to the case. Where General Assembly—but in practice, these
this is so, the Court cannot act, even if the right in instruments may have an impact on the formation
question is a right erga omnes. of CIL as both a reflection of state practice as well
[35] The Court concludes that it cannot, in this case, as opinion juris
exercise the jurisdiction it has by virtue of the
declarations made by the Parties under Article 36, III
paragraph 2, of its Statute because, in order to decide THE LAW OF TREATIES
the claims of Portugal, it would have to rule, as a
prerequisite, on the lawfulness of Indonesia's conduct
in the absence of that State's consent. This conclusion 3.1. TREATY AS A CONCEPT UNDER
applies to al1 the claims of Portugal, for al1 of them INTERNATIONAL LAW
raise a common question: whether the power to make 1969 Vienna Convention on the Law of Treaties
treaties concerning the continental shelf resources of (VCLT) –
East Timor belongs to Portugal or Indonesia, and,
therefore, whether Indonesia's entry into and continued -partly reflects customary law and constitutes the basic
presence in the continued presence in the Territory are framework for any discussion of the nature and
lawful. In these circumstances, the Court does not deem characteristics of treaties. Certain provisions of the
it necessary to examine the other arguments derived by Convention may be regarded as reflective of customary
Australia from the non-participation of Indonesia in the international law, such as the rules of interpretation,
case, namely the Court's lack of jurisdiction to decide material breach, and fundamental change of
on the validity of the 1989 Treaty and the effects on circumstances.
Indonesia's rights under that treaty which would result
-codifies the primary rules and principles in the area of the
from a judgment in favour of Portugal. law of treaties; some provisions reflect customary
37. The Court recalls in any event that it has international law; meant to apply to ALL types of
taken note in the present Judgment (paragraph 31) that,
WRITTEN treaties both bilateral and multilateral
for the two Parties, the Territory of East Timor remains
a non-self-governing territory and its people has the HOWEVER, treaties concluded by international
right to self-determination. organizations, are governed differently by the
1986 Vienna Convention on the Law of
2019, EH 402) Jerusalem, 1961
Treaties Between International Organizations. “conventions,” may qualify as treaties. AS LONG AS,
(signed 1986) there is an intent to create rights and obligations.
MOREOVER, while the VCLT only applies to  Terms such as “will” and “ought” do not
WRITTEN treaties, this does NOT affect ORAL intend to create a binding commitment
AGREEMENTS which are also treaties for the  “shall,” “rights,” “oblige,” “must,”
purposes of international law. (ART 3, VCLT) indicate the opposite
Adopted: May 1969 UN Conference on the Q: Is there a specific requirements of form in international
Law of Treaties law for the existence of a treaty?
Entry into force: January 1980 None. Although, it is essential that the parties intend to
create legal relations as between themselves by means of
Treaty- an international agreement governed by their agreement.
international law concluded by two or more international
subjects with treaty-making capacity. Where the parties do NOT intend to create legal relations
or binding obligations or rights under international law, the
But for purposes of the VCLT, a treaty is defined as: agreement will not be a treaty, although, of course, its
political effect may still be considerable.
ART 2(a), VCLT. “treaty” means an international
agreement concluded between States in written form and In Qatar v. Bahrain, the ICJ emphasized that whether an
governed by international law, whether embodied in a agreement constituted a binding agreement would depend
single instrument or in two or more related instruments upon “all its actual terms” and the circumstances in which
and whatever its particular designation. it had been drawn up.
State consent- legal basis of a treaty obligation (ART 34, Not covered by the VCLT:
VCLT. General rule regarding third states. A treaty does
not create either obligations or rights for a third State 1) Agreements involving international organisations
without its consent.) 2) Agreements between States which are to be
governed by municipal law, such as a large
Pacta sunt servanda- a treaty in force is binding upon the number of commercial accords
parties to it and must be performed by them in good faith
(ART 26, VCLT. Every treat in force is binding upon the
AEGEAN SEA CONTINENTAL SHELF
parties to it and must be performed by them in good faith.).
(GREECE v. TURKEY) 1978, ICJ
This is the oldest principle of international law.
Q: What if there is a conflict between a treaty and FACTS: Turkish Government granted licenses to
domestic law? carry out exploration for petroleum in submarine areas
of the Aegean Sea, including areas which encroached
A party may NOT invoke its national laws as justification upon the continental shelf of Greece.
for a failure to perform a treaty-based obligation. Hence, a Greece instituted proceedings against the Republic
state is obliged to comply with its treaty-based obligation. of Turkey in respect to the delimitation of the
A state is obliged to comply with its treaty-based continental shelf in the Aegean Sea insisting that the
obligations even if doing so would breach its national laws. activities of the Turkish government infringed its
(ART 27, VCLT) sovereignty and exclusive rights to explore and exploit
such continental shelf.
Q: Is the nomenclature relevant? Greece relied on (1) Article 17 of the General Act
for the Pacific Settlement of International Disputes of
The title to an instrument is irrelevant. Everything from 1928, read together with Article 36, paragraph 1, and
“minutes,” “protocols,” “exchange of notes,” “memoranda Article 37 of the Statute of the Court (2) a joint
of understanding, “covenants,” “charters,” and communiqué between the Prime Ministers of Greece
and Turkey.
Turkey’s contention: Court had no jurisdiction.
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and thethe
During books by Henriksen,
hearings, Akehurst,
Turkey wasandnot
Shawrepresented
50
because they did not appoint an agent.
However, the court still found it necessary to
answer the question of jurisdiction even if Turkey has
2019, EH 402) Jerusalem, 1961
Turkey’s contention: Court had no jurisdiction. of War case, Pakistan invoked the 1928 Act as a basis
During the hearings, Turkey was not represented for jurisdiction in that case while India, stated that the
because they did not appoint an agent. 1928 Act "is either not in force or, in any case, its
However, the court still found it necessary to efficacy is impaired by the fact that the organs of the
answer the question of jurisdiction even if Turkey has League of Nations and the Permanent Court of
failed to appear during hearings. International Justice to which it refers have now
After correspondence between Greece and Turkey, disappeared
Turkey expressed readiness to enter into negotiations Although under Article 59 of the Statute "the
for the delimitation of the continental shelf between the decision of the Court has no binding force except
two countries. between the parties and in respect of that particular
case", it is evident that any pronouncement of the Court
Issue: WON the ICJ has jurisdiction over the case. as to the status of the 1928 Act, whether it were found
to be a convention in force or to be no longer in force,
Ruling: NO. may have implications in the relations between States
other than Greece and Turkey. (par. 39)
1. First basis of jurisdiction: Article 17 of the The Court notes that Greece drew attention to
General Act of 1928 the fact that both the Greek and the Turkish instruments
Article 17 of the General Act reads as follows: of accession to the Act were accompanied by
"All disputes with regard to which the parties are reservations. Greece says that this is irrelevant BUT
inconflict as to their respective rights shall, subject to Turkey on the other hand says that it was subject to a
any reservations which may be made under Article 39, reservation clause which provides:
be submitted for decision to the Permanent Court of
International Justice, unless the parties agree, in the "The following disputes are excluded from the
manner hereinafter provided, to have resort to an procedures described in the General Act, including the
arbitral tribunal. It is understood that the disputes procedure of conciliation referred to in Chapter 1:
referred to above include in particular those mentioned (a) disputes resulting from facts prior either to
in Article 36 of the Statute of the Permanent Court of the accession of Greece or to the accession of
International Justice." another Party with whom Greece might have a
The PCIJ is the predecessor of ICJ so there was dispute;
question as to whether the General Act would still (b) disputes concerning questions which by
apply in the present case. The Court read it in relation international law are solely within the domestic
to Art. 37 and Art. 36 par. 1 of the present Court’s jurisdiction of States, and in particular
statute, which states that, “whenever a treaty or disputes relating to the territorial status of
convention in force provides for reference of a matter Greece, including disputes relating toits
to… the Permanent Court of International Justice, the rights of sovereignty over its ports and lines
matter shall, as between the parties to the present of communication.
Statute, be referred to the International Court of
Justice.” (Paras. 32-34) The effect is that if a treaty The court ruled that the question of delimitation of the
refers to the PCIJ, such is sufficient to establish the ICJ Aegean Sea very well falls under reservation (b) for it
jurisdiction in regard to a dispute. The question of the talks about the territorial status of Greece.
status of the General Act of 1928 as a convention in [55] when a multilateral treaty provides in
force for the purpose of Article 37 of the Statute of the advance for the making of particular, designated
Court has already been raised, though not decided, in categories of reservations, there is clearly a high
previous cases. probability, if NOT an ACTUAL presumption, that
Nuclear Test Cases Australia and New Zealand reservations made in terms used in the treaty are
each took the position that the 1928 Act continues in intended to relate to the CORRESPONDNG categories
force for States which have not denounced it in in the treaty.
conformity whereas France pushes for the dissolution 2. Second basis of jurisdiction: The Brussels
of the League of Nations Trial of Pakistani Prisoners Joint Communique of 31 May 1975
of War case, Pakistan invoked the 1928 Act as a basis
for jurisdiction
Eunice in that| based
Soriano Baliong case on
while
Atty.India,
Pandi’sstated that
syllabus, the
discussions, Q: What
slides, and theisbooks
this Joint Communique?
by Henriksen, Akehurst, and Shaw 51
1928 Act "is either not in force or, in any case, its A: This was a communique issued directly to the press
efficacy is impaired by the fact that the organs of the by the Prime Ministers of Greece and Turkey following
League of Nations and the Permanent Court of a meeting between them where they decided that those
International Justice to which it refers have now problems should be resolved peacefully by means of
2019, EH 402) Jerusalem, 1961
Q: What is this Joint Communique? when the conditions for establishing its jurisdiction are
A: This was a communique issued directly to the press satisfied. (Paras. 107 and 108.)
by the Prime Ministers of Greece and Turkey following Therefore ICJ ruled that it had no jurisdiction.
a meeting between them where they decided that those
problems should be resolved peacefully by means of
negotiations and as regards the continental shelf of the MARITIME DELIMITATION AND
Aegean Sea by the International Court at The Hague. TERRITORIAL QUESTIONS BETWEEN QATAR
“The two governments thereby jointly and severally and BAHRAIN, (Jurisdiction and Admissibility),
accepted the jurisdiction of the Court in the present 1994, ICJ
matter, pursuant to ART 36(1) of the Statute of the Facts: A dispute concerning sovereignty over certain
Court.” islands and shoals, including the delimitation of a
Greece says that this Communique confers maritime boundary were issues upon which Qatar (P)
jurisdiction over the Court. Turkey on the other hand and Bahrain (D) sought to resolve for 20 years.
says, that does not amount to an agreement under Endeavours to find a solution took place in the context
International Law. There must be a separate special of a mediation, sometimes referred to as “good
agreement by one State to submit jurisdiction to the offices,” beginning in 1976 by the King of Saudi
Court, and if it were one, it must be ratified by Turkey. Arabia with the agreement of the Ammirs of Bahrain
(Paras. 94-95) and Qatar. A set of “Principles for the Framework for
[96] There is no rule of international law which Reaching a Settlement” was approved. One of the
precludes a joint communiqué from constituting an principles stated that disputes between the countries
international agreement to submit a dispute to relating to sovereignty over the islands, boundaries, and
arbitration or judicial settlement. It depends on the act territorial waters, are NOT to be presented to any
or transaction to which the Communique gives international organization; that a Tripartitie Committee
expression; it does not settle the question simply to should should be foremed to reach solutions; and that if
refer to the FORM. The Court must have regard to its negotiations failed, the governments will undertake the
actual terms and to the particular circumstances in best means of resolving the matter on the basis of the
which it was drawn up. provisions of international law and the ruling of the
The Court finds nothing to justify that Turkey authority chosen for this purpose will be final and
was prepared to envisage any other reference to the binding.
Court than a joint submission of the dispute. The two
As there was no success in negotiations, Saudi Arabia
Prime Ministers did not undertake an unconditional
proposed that the dispute be referred to the ICJ. During
commitment to refer their continental shelf dispute
this period of time, letters were exchanged and
hence why the communique did not constitute an
acknowledged by both parties heads of state. A
immediate and unqualified commitment on the part of
Tripartite Committee “for the purpose of approaching
the Prime Ministers of Greece and Turkey to accept the
the International Court of Justice” was formed by
submission of the dispute to the Court unilaterally by
representatives of Qatar (P), Bahrain (D) and Saudi
Application. Express provision made by the Prime
Arabia. Though the committee met several time, it
Ministers for a further meeting of experts on the
failed to produce an agreement on the specific terms for
continental shelf does NOT seem easily reconcilable
submitting the dispute to the Court. Eventually, the
with an immediate unqualified commitment to accept
meetings culminated in “Minutes”, which reaffirmed
the submission of the dispute to the Court unilaterally
the process and stipulated that the parties “may” submit
by Application.
the dispute to the I.C.J. after giving the Saudi King six
[106] From the first, the Turkish side
months to resolve the dispute.
consistently maintained that the referece of the dispute
to the Court was to be contemplated only on the basis
As the king of Saudi Arabia did not resolve the
of a joint submission after the conclusion of a special
issue within the time limit fixed, Qatar instituted
agreement defining the issues. The Court adds that
proceedings before the Court against Bahrain. The
nothing it has said may be understood as precluding the
Court’s jurisdiction was disputed by Bahrain (D)
dispute from being brought before the Court if and
stating that the Minutes do not constitute a legally
when the conditions for establishing its jurisdiction are
binding instrument.
satisfied. (Paras.
Eunice Soriano 107 and
Baliong 108.)
| based on Atty. Pandi’s syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 52
Issue WON the minutes of the meetings and letters
Therefore ICJ ruled that it had no jurisdiction. exchanged constitute an international agreement with
binding force
2019, EH 402) Jerusalem, 1961
binding instrument. stated that at no time did he consider that in signing the
minutes, he was committing Bahrain to a binding
Issue WON the minutes of the meetings and letters agreement.
exchanged constitute an international agreement with [27] It is unnecessary to consider the intentions
binding force of the ministers of either countries. Both signed a text
recording commitments accepted by their
Ruling: [23] International instruments may take a Governments.
number of forms and be given a diversity of names. [28] AN international agreement or treaty NOT
ART 2(1)(a) VCLT provides that a “treaty means an registered with the Secretariat of the UN may NOT be
international agreement concluded between States in invoked by the parties before any organ of the UN.
written form and governed by international law, However, non-registration, or late registration does
whether embodied in a single instrument or in two or NOT affect the validity of the agreement which
more related instruments and whatever its particular remains no less binding upon the parties.
designation.” To ascertain whether an agreement of The exchanges of letters are international
that kind has been constituted, “the Court must have agreements creating rights and obligations.
regard above all to its actual terms and to the particular
circumstances in which it is drawn up.” 3.2. THE AUTHORITY TO CONCLUDE A TREATY
[24] the Minutes provide for the good ART 7, VCLT
offices of the King of Saudi Arabia to continue until
May 1991, and exclude the submission of the dispute to Full powers. (1) A person is considered as representing a
the Court prior thereto. The circumstances are State for the purpose of adopting or authenticating the text
addressed under which the dispute may subsequently be of a treaty or for the purpose of expressing the consent of
submitted to the Court. Qatar's acceptance of the the State to be bound by a treaty if:
Bahraini formula is placed on record. The Minutes
provide that the Saudi good offices are to continue (a) He produces the appropriate full powers
while the case is pending before the Court, and go on to (b) It appears from the practice of the States
Say that, if a compromise agreement is reached during concerned or from other circumstances that their
that time, the case is to be withdrawn. intention was to consider that person as
[25] Thus the 1990 Minutes include a representing the State for such purposes and to
reaffirmation of obligations previously entered into; dispense with full powers.
they entrust King Fahd with the task of attempting to
find a solution to the dispute during a period of six (2) In virtue of their functions and without having to
months; and, lastly, they address the circumstances produce full powers, the following are considered as
under which the Court could be seized after May 1991. representing the State:
Accordingly, and contrary to the contentions of
Bahrain, the Minutes are not a simple record of a (a) Heads of State, Heads of Government, and
meeting, similar to those drawn up within the Ministers of Foreign Affairs, for the purpose of
framework of the Tripartite Committee; they do not performing all acts relating to the conclusion of a
merely give an account of discussions and summarize treaty.
points of agreement and disagreement. They (b) heads of diplomatic missions, for the purpose
enumerate the commitments to which the Parties have of adopting the text of a treaty between the
consented. They thus create rights and obligations in accrediting State and the State to which they are
international law for the Parties. They constitute an accredited.
international agreement.
[26] the Minister of Bahrain stated that (c) representative accredited by States to an
according to the Constitution of Bahrain treaties international conference or to an international
concerning the territory of Bahrain can come into effect organization or one of its organs, for the purposes
ONLY after their positive enactment as a law. He also of adopting the text of a treaty in that conference,
organization, or organ.
2019, EH 402) Jerusalem, 1961
Full power- a document that authorizes a state without consulting the Nigerian Government, the Court
representative to negotiate and conclude a treaty on behalf notes that there is no general legal obligation for States
of the state to keep themselves informed of legislative and
Exception: Heads of state, and heads of constitutional developments in other States which are
government, and ministers of foreign affairs may or may become important for the international relations
perform ALL acts that relate to the conclusion of a of these States. In these circumstances the Maroua
treaty on behalf of a state WITHOUT presenting Declaration, as well as the YaoundC I1 Declaration,
full powers. Their positions means that other have to be considered as binding and as establishing a
states can rely on their ability to act on behalf of legal obligation on Nigeria.
the state.
ART 46, VCLT. Provisions of internal law regarding
LEGAL STATUS OF EASTERN GREENLAND competence to conclude treaties. (1) A State may not
invoke the fact that its consent to be bound by a treaty has
(DENMARK v. NORWAY), 1933, PCIJ
been expressed in violation of a provision of its internal
law regarding competence to conclude treaties as
[289] No arbitral or judicial decision relating to the invalidating its consent unless that violation was manifest
international competence of a Minister for Foreign and concerned a rule of its internal law of fundamental
Affairs has been brought to the knowledge of the Court; importance.
nor has this question been exhaustively treated by legal
authorities. In my opinion, it must be recognized that (2) A violation is manifest if it would be objectively
the constant and general practice of States has been to evident to any State conducting itself in the matter in
invest the Minister for Foreign Affairs-the direct agent accordance with normal practice and in good faith.
of the chief of the State - with authority to make
statements on current affairs to foreign diplomatic Q: In what instance is consent invalidated?
representatives, and in particular to inform them as to A state may NOT invoke the fact that its consent
the attitude which the government, in whose name he
to be bound by a treaty has been expressed in violation of
speaks, will adopt in a given question. Declarations of
its national laws as invalidating its consent, UNLESS the
this kind are binding upon the State. violation of national law was manifest and concerns a
national rule of fundamental importance
LAND AND MARITIME BOUNDARY BETWEEN
CAMEROON AND NIGERIA (Cameroon v.  Manifest- obvious, objectively evident to any state
conducting itself in the matter in accordance with
Nigeria; Equatorial Guinea Intervening), Judgment,
normal practice and good faith
2002, ICJ
The rules concerning the authority to sign 3.3. TREATIES BETWEEN STATES AND
treaties for a State are constitutional rules of INTERNATIONAL ORGANIZATIONS
fundamental importance. However, a limitation of a Depending on the circumstances, international
Head of State's capacity in this respect is not manifest organizations may have some treaty-making powers.
in the sense of Article 46, paragraph 2, unless at least
properly publicized. This is particularly so because 3.4. CONSENT TO BE BOUND
Heads of State belong to the group of persons who, in ART 11, VCLT. Means of expressing consent to be
accordance with Article 7, paragraph 2, of the bound by a treaty. The consent of a State to be bound by a
Convention "[iln virtue of their functions and without reaty may be expressed by signature, exchange of
having to produce full powers" are considered as instruments constituting a treaty, ratification, acceptance,
representing their State. approval or accession, or by any other means if so agreed.
With regard to the Nigerian argument that
Cameroon knew, or ought to have known, that the Head Ways of Expressing Consent:
of State of Nigeria had no power legally to bind Nigeria
without consulting the Nigerian Government, the Court 1. Signature (definitive signature)
notes that
Eunice thereBaliong
Soriano is no | based on Atty. Pandi’s syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 54
general legal obligation for States to keep themselves
informed of legislative and constitutional developments
in
other States which are or may become important for the
2019, EH 402) Jerusalem, 1961
2. Exchange of instruments in the case of multilateral treaties, the usual procedure is

3. Ratification for one party to collect the ratifications of ALL states,
4. Acceptance keeping all parties informed of the situation. In such
5. Approval instances, the Secretary-General of the United Nations will
6. Accession act as the depositary for ratifications.
7. By any other means as agreed
D. CONSENT BY ACCESSION
A. CONSENT BY SIGNATURE
This is the normal method by which a state becomes a
Instances: party to a treaty it has NOT signed, either because 1) the
treaty provides that signature is limited to certain states,
1) Treaty provides that signature shall have that and it is not such a state, or 2) because a particular
effect deadline for signature has passed.
2) Negotiating states were agreed that signature
should have that effect
3) Intention of the state to give that effect to the
signature appears from the full powers of its 3.5. ENTRY INTO FORCE AND OBLIGATIONS IN THE
representative or was expressed during the INTERIM PERIOD
negotiations. ART 24, VCLT
However, where the convention is subject to acceptance, (1) A treaty enters into force in such manner and upon
approval or ratification, signature will in principle be a such fate as it may provide or as the negotiating
formality and will mean no more than that state states may agree.
representatives have agreed upon an acceptable text, which (2) Failing any such provision or agreement, a treaty
will be forwarded to their governments, for the necessary enters into force as soon as consent to be bound by
decision as to acceptance or rejection. the treaty has been established for all negotiating
States.
B. CONSENT BY EXCHANGE OF (3) When the consent of a State to be bound by a
INSTRUMENTS treaty is established on a date after the treaty has
come into force, the treaty enters into force for that
Instances: State on that date, unless the treaty otherwise
provides.
1) When the instruments declare that their exchange
shall have that effect Although a state has already given consent, it cannot be
2) It is otherwise established that those states had legally bound by a treaty until such ENTERS INTO
agreed that the exchange of instruments should FORCE. A treaty that has NOT entered into force,
have that effect. CANNOT create any legal obligation.
C. CONSENT BY RATIFICATION  If the treaty does NOT specify: enters into force as
soon as consent has been established for ALL
Instances: negotiating states
1) Where the treaty so provides Interim period—the period between when it gave its
2) It is otherwise established that the negotiating consent to be bound by the treaty and when the treaty
states were agreed that ratification should be enters into force
required
3) Representative of the state has signed the Q: If there is no binding obligation prior entry into force,
treaty subject to ratification appears from the can a State then act as it pleases?
full powers of its representative
ART 18(b), VCLT. During the interim period,
Ratification in the case of bilateral treaties is usually consenting states must refrain from acts which defeat the
accomplished by exchanging the requisite instruments, but object and purpose of a treaty. Good faith requires that a
2019, EH 402) Jerusalem, 1961
state is NOT ENTIRELY FREE to act as it pleases in the 6. When consent was procured by threat or use of
interim period. force in violation of the Charter of the UN. (ART
52, VCLT)
3.6. VALIDITY  Covenant of the League in 1919, Kellog-
ART 46-53, 64, VCLT Briand Pact in 1928 (forbidding the resort
to war to resolve international disputes)
Basis for Invalidity: 7. If the treaty is in conflict with a peremptory norm
of general international law. (ART 53, VCLT in
1. Consent to be bound was expressed in violation
conjunction with ART 64, VCLT)
of international law (ART 46, VCLT)
Consequence of Invalidity:
Violation will be manifest if it would be “objectively
evident” to any state conducting itself in the matter in ART 69 VCLT, provides that an invalid treaty is VOID
accordance with normal practice, and in good faith. and WITHOUT LEGAL FORCE. If acts have been
performed, each party may require the other to establish as
2. Error.
far as possible, the position that would have existed if the
 When it relates to a fact or situation which was
acts had not been performed. Acts performed in good faith,
assumed to exist at the time when the treaty was
before the invalidity was invoked are not rendered
concluded
unlawful by reason only of the invalidity of the treaty.
 and it formed an essential basis of the
consent Where a treaty is VOID: parties are to eliminate as far as
 the claiming party must not have possible, the consequences of any act performed in
contributed by its own conduct to the error reliance on any provision which conflicts with jus cogens
or must not have had notice of the error
(ART 48, VCLT) Where a treaty TERMINATES: parties are released from
any obligation, provided that rights may be maintained
It is an established rule of law that the plea of error thereafter in conformity with the new peremptory norm.
cannot be allowed as an element vitiating consent if the
party advancing it contributed by its own conduct to
the error, or if it could have avoided it, or if the 3.7. RESERVATIONS
circumstances were such as to put the party on notice ART 2(1)(d), VCLT defines reservations as,
of a possible error.
A unilateral statement, however phrased or named, made
-The Temple of Preah Vihear (Cambodia v. by a State when signing, ratifying, accepting, approving or
acceding to at treaty, whereby it purports to exclude or
Thailand) modify the legal effect of certain provisions of the treaty in
their application to that state.
3. Fraud. (ART 49, VCLT) RESERVATIO INTERPRETATIV DEROGATIO
 Where a state consents to be bound as a N E DECLARATION N
result of the fraudulent conduct of another Seeks to modify Seeks to specify or Allows a state
negotiating state a treaty clarify the meaning to derogate,
4. Corruption of a representative of a state (ART 50, obligation for or scope the thereby NOT
VCLT) the reserving declaring state apply certain
5. Coercion. (ART 51, VCLT) state but NOT attaches to the provisions in
 Coercing the representative of the State, the other obligation in times of
whether by acts or threats directed against parties inter se question emergency
him It is a unilateral Purpose is to Ex: ART 15,
declaration communicate to ECHR allows a
other parties what contracting
2019, EH 402) Jerusalem, 1961
the declaring states party to "In so far as concerns the Convention on the
understands the derogate from Prevention and Punishment of the Crime of Genocide
existing obligation certain in the event of a State ratifying or acceding to the
to be obligations in Convention subject to a reservation made either on
“time of war or ratification or or accession, or on signature followed by
other public ratification:
emergency
threatening the "I. Can the reserving State be regarded as being
life of the
a party to the Convention while still
nation.” maintaining its reservation if the reservation is
objected to by one or more of the parties to the
In order to determine whether a unilateral statement made Convention but not by others?
constitutes a reservation or an interpretative declaration,
the statement will have to be interpreted in good faith in "11. If the answer to question I is in the
accordance with the ordinary meaning to be given to its affirmative what is the effect of the reservation
terms and within the context of the treaty in question. as between the reserving State and:
(a) The parties which object to the
Prior to the Genocide Case, the prevailing rule was: reservation?
(b) Those which accept it?
Traditional/ Unanimity Principle Rule- reservations
were NOT valid unless accepted by ALL contracting "111. What would be the legal effect as regards
parties. the answer to question I if an objection to a
reservation is made:
Effect: A state wishing to make a reservation had to obtain (a) By a signatory which has not yet
the consent of all the parties. If this was not possible, the ratified?
state could either 1) be a party to the original treaty (minus (b) By a State entitled to sign or accede
the reservation), or 2) not become a party at all. but which has not yet done so?"
Ruling:
However, this restrictive approach was not accepted by the
On Question 1:
ICJ. In Reservations to the Genocide Convention it held
A State which has made and maintained a
that “a state which has made and maintained a reservation
reservation which has been objected to by one or more
which has been objected to by one or more parties to the
of the parties to the Convention, but not by others, can
convention but not by others, can be regarded as being a
be regarded as being a party to the Convention if the
party to the Convention, if the reservation is compatible
reservation is compatible with the object and purpose
with the object and purpose of the Convention.”
of the Convention; otherwise, that State cannot be
regarded as being a party to the Convention.
RESERVATIONS TO THE CONVENTION ON
GENOCIDE, Advisory Opinion, 1951, ICJ On Question 2:
a) If a party to the Convention object to a
Facts: The question concerning reservations to the reservation which it considers to be
Convention on the Prevention and Punishment of the incompatible with the object and purpose of the
Crime of Genocide had been referred for an advisory Convention, it can in fact consider that the
opinion to the Court by the General Assembly of the reserving State is not a party to the Convention
United Nations (G..A. resolution of November 16, b) If on the other hand, a party accept the
1950) in the following terms: reservation as being compatible with the object
and purpose of the Convention, it can in fact
"In so far as concerns the Convention on the consider that reserving State as party to the
Prevention and Punishment of the Crime of Genocide Convention
in the event of a State ratifying or acceding to the
Convention subject to a reservation made either on On Question 3:
ratification or or accession, or on signature followed by a)books
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the An byobjection
Henriksen,toAkehurst,
a reservation
and Shawmade
57 by a
ratification: signatory State which has not yet ratified
the Convention can have the legal effect
"I. Can the reserving State be regarded as being indicated in Question 1 only upon
a party to the Convention while still ratification. Until that moment, it merely
2019, EH 402) Jerusalem, 1961
On Question 3: (a) acceptance by another contracting State of a

c) An objection to a reservation made by a reservation constitutes the reserving State a party
signatory State which has not yet ratified to the treaty in relation to that other State if or
the Convention can have the legal effect when the treaty is in force for those States;
indicated in Question 1 only upon (b) an objection by another contracting State to a
ratification. Until that moment, it merely reservation does not preclude the entry into force
serves as notice to the other State of the of the treaty as between the objecting and
eventual attitude of the signatory State. reserving States unless a contrary intention is
d) An objection made by a State which is definitely expressed by the objecting State;
entitled to sign or accede but which has not
yet done so is without legal effect. (c) an act expressing a State’s consent to be bound
by the treaty and containing a reservation is
effective as soon as at least one other contracting
When Reservations Are Excluded (ART 19, VCLT) State has accepted the reservation.
1) If the treaty expressly stipulates that reservations 5. For the purposes of paragraphs 2 and 4 and unless the
are NOT permitted treaty otherwise provides, a reservation is considered to
2) When the treaty provides that only certain have been accepted by a State if it shall have raised no
reservations can be made objection to the reservation by the end of a period of
3) If a reservation violates the object and purpose of twelve months after it was notified of the reservation or by
the treaty the date on which it expressed its consent to be bound by
 If the reservation “affects an the treaty, whichever is later.
essential element of the treaty that
is necessary to its general tenour, Summary of Rules if the Treaty is silent as to Reservations:
in such a way that the reservation
impairs the raison d’etre of the 1) If a state accepts a reservation by another State,
treaty.” they will be parties to the same treaty [ART
20(4)(a), VCLT]
Acceptance/Objection to Reservations 2) If a state objects to another state’s reservation, the
treaty will NOT enter into force between the two
ART 20, VCLT. Acceptance of and objection to states if the objecting state expresses a definite
reservations intention for that to be the case. [ART 20(2),
VCLT]
1. A reservation expressly authorized by a treaty does not 3) A state’s reservation is effective when at least one
require any subsequent acceptance by the other contracting other contracting state has accepted it.
States unless the treaty so provides.
2. When it appears from the limited number of the PROBLEMATIQUE

negotiating States and the object and purpose of a treaty
that the application of the treaty in its entirety between all The State of Alpha and the State of Beta enter into a
the parties is an essential condition of the consent of each treaty containing eight numbered articles. Both states
one to be bound by the treaty, a reservation requires complete their internal ratification procedures and
acceptance by all the parties. mutually exchange ratification notification. Alpha adds
the following reservation:
3. When a treaty is a constituent instrument of an “The State of Alpha does not agree to article number
international organization and unless it otherwise provides, eight and hereby notifies the State of Beta of its
a reservation requires the acceptance of the competent reservation to article eight.”
organ of that organization.
Beta’s ratification did not include any reservation to
4. In cases not falling under the preceding paragraphs and the treaty. What effect will Alpha’s reservation have?
unless the treaty otherwise provides:
2019, EH 402) Jerusalem, 1961
Legal Effects of Reservations 3. Object and purpose
ART 21, VCLT. Legal effects of reservations and Teleological School of Thought—considers that the
objections to reservations. object and purpose of the treaty as the most important
backcloth against which the meaning of any particular
1. A reservation established with regard to another party in treaty provision should be measured.
accordance with articles 19, 20 and 23:
Principle of Contemporaneity—a treaty should be
(a) modifies for the reserving State in its relations interpreted by reference to the circumstances prevailing
with that other party the provisions of the treaty to when the treaty was concluded; expressions and
which the reservation relates to the extent of the geographical names used in the instrument should be given
reservation; and the meaning that they would have possessed at that time.
(b) modifies those provisions to the same extent Principle of Effectiveness—give effect to provisions in
for that other party in its relations with the accordance with the intentions of the parties and in
reserving State. accordance with the rules of international law.
2. The reservation does not modify the provisions of the Purpose-Oriented Method—the Convention constituted a
treaty for the other parties to the treaty inter se. living instrument that had to be interpreted “in light of
present-day conditions.” Applied in human rights treaties.
3. When a State objecting to a reservation has not opposed
the entry into force of the treaty between itself and the Q: What prevails if a treaty is authenticated in more
reserving State, the provisions to which the reservation than one language?
relates do not apply as between the two States to the extent
of the reservation. ART 33 provides that, in the absence of agreement, in the
event of a difference of meaning that the normal processes
of interpretation cannot resolve, the meaning which best
reconciles the texts, having regard to the object and
3.8. INTERPRETATION purpose of the treaty, shall be adopted.
ART 31, VCLT. General Rule of Interpretation. (1) A
treaty shall be interpreted in good faith in accordance with TERRITORIAL DISPUTE (Libyan Arab
the ordinary meaning to be given to the terms of the treaty Jamahiriya v. Chad), Judgment, 1994, ICJ
in their context and in the light of its object and purpose.
The Court recalls that, in accordance with the rules of
ART 32, VCLT. Supplementary means of interpretation. general international law, reflected in article 31 of the
Recourse may be had to supplementary means of 1969 Vienna Convention on the Law of Treaties, a
interpretation, including the preparatory work of the treaty treaty must be interpreted in good faith in accordance
and the circumstances of its conclusion, in order to confirm with the ordinary meaning to be given to its terms in
the meaning resulting from the application of ART 31, or their context and in the light of its object and purpose.
to determine the meaning when the interpretation Interpretation must be based above all upon the text of
according to ART 31: a) leaves the meaning ambiguous or the treaty. As a supplementary measure, recourse may
obscure, b) leads to a result which is manifestly absurd or be had to means of interpretation such as the
unreasonable.
preparatory work of the treaty and the
Elements to Consider in Treaty Interpretation: circumstances of its conclusion.
According to article 3 of the 1955 Treaty, the
1. Text- if a wording is clear but its application parties "recognize [reconnaissent] that the frontiers . . .
would lead to unreasonable result, other elements are those that result" from certain international
must be applied instruments. The word "recognize" used in the Treaty
2. Context- preamble, annexes, agreements and indicates that a legal obligation is undertaken. To
instruments made in connection with the recognize a frontier is essentially to "accept" that
conclusions of the treaty frontier, that is, to draw legal consequences from its
2019, EH 402) Jerusalem, 1961
existence, to respect it and to renounce the right to that the ultimate objective of the sacred trust was the
contest it in future. self-determination and independence of the peoples
In the view of the Court, the terms of the concerned.
Treaty signified that the parties thereby recognized
complete frontiers between their respective territories
as resulting from the combined effect of all the
instruments listed in annex I; no relevant frontier was to 3.9. AMENDMENTS AND MODIFICATIONS
be left undefined and no instrument listed in annex I
was superfluous. It would be incompatible with a
ART 39, VCLT. General rule regarding the amendment
recognition couched in such terms to contend, as Libya
of treaties. A treaty may be amended by agreement
has done, that only some of the specified instruments
between the parties. The rules laid down in Part II apply to
contributed to the definition of the frontier, or that a
such an agreement except insofar as the treaty may
particular frontier remained unsettled. So to contend otherwise provide.
would be to deprive article 3 of the Treaty and annex I
of their ordinary meaning. By entering into the Treaty, Protocols- an amendment by specific agreement of the
the parties recognized the frontiers to which the text of parties. Unless otherwise provided for in the treaty, the
the Treaty referred; the task of the Court is thus to regular consent-centred formalities on the conclusion and
determine the exact content of the undertaking entered coming into effect of treaties will apply to such
into. amendments.
LEGAL CONSEQUENCES FOR STATES OF In the absence of specific provisions, a proposed

THE CONTINUED PRESENCE OF SOUTH amendment has to be notified to ALL contracting parties.
AFRICA IN NAMIBIA (SOUTH WEST AFRICA) ART 41, VCLT. Agreements to modify multilateral
notwithstanding SECURITY COUNCIL treaties between certain of the parties only.
RESOLUTION 276, Advisory Opinion, 1971, ICJ
1. Two or more of the parties to a multilateral treaty may
[53] Mindful as it is of the primary necessity of conclude an agreement to modify the treaty as between
interpreting an instrument in accordance with the themselves alone if:
intentions of the parties at the time of its conclusion,
the Court is bound to take into account the fact that the (a) the possibility of such a modification is provided for by
concepts embodied in Article 22 of the Covenant-"the the treaty; or
strenuous conditions of the modern world" and "the
well-being and development" of the peoples concerned- (b) the modification in question is not prohibited by the
were not static, but were by definition evolutionary, as treaty and:
also, therefore, was the concept of the "sacred trust".
The parties to the Covenant must consequently be (i) does not affect the enjoyment by the other
deemed to have accepted them as such. That is why, parties of their rights under the treaty or the
viewing the institutions of 1919, the Court must take performance of their obligations;
into consideration the changes which have occurred in
the supervening half-century, and its interpretation (ii) does not relate to a provision, derogation from
cannot remain unaffected by the subsequent which is incompatible with the effective execution
of the object and purpose of the treaty as a whole.
development of law, through the Charter of the United
Nations and by way of customary law. Moreover, an 2. Unless in a case falling under paragraph 1 (a) the treaty
international instrument has to be interpreted and otherwise provides, the parties in question shall notify the
applied within the framework of the entire legal system other parties of their intention to conclude the agreement
prevailing at the time of the interpretation. In the and of the modification to the treaty for which it provides.
domain to which the present proceedings relate, the last
fifty years, as indicated above, have brought important Framework Convention- parties adopt this when it is
developments. These developments leave little doubt particularly obvious to parties that their treaty0based
2019, EH 402) Jerusalem, 1961
commitments need to take account of subsequent Draft Articles on The Law of Treaties, ILC
developments. Unlike other treaties, these do not need to (Commentary on ART 53:)
exhaustively regulate a given topic but instead seeks to
establish an organizational structure that will be competent [4] Some members of the Commission considered that in
to develop the substantive regulation. certain types of treaty, such as treaties of alliance, a right
of denunciation or withdrawal after reasonable notice,
Ex: 1992 UN Framework Convention on Climate Change should be implied in the treaty unless there are indications
(UNFCCC); of a contrary intention. Other members said this cannot be
implied from the character of the treaty alone. According
to them, the intention of the parties is essentially a question
of fact to be determined not merely by reference to the
3.10. TERMINATION AND WITHRDAWAL character of the treaty but by reference to ALL the
Grounds for Termination or Suspension: circumstances of the case. This view prevailed in the
Commission
The following may be invoked as grounds to terminate or
suspend the operation of a treaty: (Personal Observation: Par. 2 of ART 56 (which was then
ART 53) was absent from the Draft articles. It could be
1. By treaty provision or consent
that at that time, the ILC did not consider the existence of
2. Material Breach
an implied denunciation. However, by adding par. 2, it
3. Supervening impossibility of Performance
seems as if this view was ultimately accepted.)
4. Rebus Sic Stantibus
3.10.4. TERMINATION OR SUSPENSION OF A
3.10.1. TERMINATION IN ACCORDANCE WITH TREATY AS A CONSEQUENCE OF ITS
THE PROVISION OF A TREATY BREACH
3.10.2. TERMINATION BY CONSENT OF THE
PARTIES ART 60, VCLT
ART 54, VCLT 1. A material breach of a bilateral treaty by one of the
parties entitled the other to invoke the breach as a ground
The termination of a treaty or the withdrawal of a party for terminating the treaty or suspending its operation in
may take place: whole or in part.
a) In conformity with the provisions of a treaty 2. A material breach of a multilateral treaty by one of the
b) At any time by consent of all the parties after parties entitles:
consultation with the other contracting States
a) the other parties by unanimous agreement to
3.10.3. IMPLIED RIGHT OF DENUNCIATION suspend the operation of the treaty in whole or in
OR WITHDRAWAL part or to terminate it either:
ART 56, VCLT (i) in relations between themselves and the

defaulting State
1. A treaty which contains no provision regarding its (ii) as between all the parties
termination and which does not provide for denunciation
or withdrawal is NOT subject to denunciation or b) a party specially affected by the breach to
withdrawal unless: invoke it as a ground for suspending the operation
of the treaty in whole or in part in the relations
a.) it is established that the parties intended to between itself and the defaulting State
admit the possibility of denunciation or withdrawal
b.) a right of denunciation or withdrawal may be c) any party other than the defaulting State to
implied by the nature of the treaty invoke the breach as a ground for suspending the
operation of the treaty in whole or in part with
respect to itself if the treaty is of such character
2019, EH 402) Jerusalem, 1961
that a material breach of its provisions by one implementation and called to resume performance.
party radically changes the position of every party Since Hungary refuses, decides to operate Gabcikovo
with respect to the further performance of its unilaterally, for its own purpose and benefit. Its
obligations under the treaty unilateral diversion is no more than what Hungary
Material breach refers to: agreed to do and were just modifications which were
necessary by virtue of Hungary’s decision not to
2. A material breach of a treaty, for the purposes of this implement its obligation.
article consists in:
Hungary: There was material breach by
a) repudiation of the treaty not sanctioned by the Czecholovakia when it operated Variant C.
present Convention or b) the violation of a
provision essential to the accomplishment of the
object or purpose of the treaty ISSUE: Was there material breach on the part of
Slovakia for Hungary to be entitled to justify its
abandonment of the project?
GABCIKOVO-NAGYMAROS PROJECT
(HUNGARY V. SLOVAKIA) RULING: No. Slovakia only violated the treaty when
INTERNATIONAL COURT OF JUSTICE it diverted the waters of the Danube. As of the
25 September 1997 notification of termination by Hungary in 1992, there
was as yet, no breach by Slovakia to have taken place
Facts: Case arose from the signature on 16 September and Hungary is NOT entitled to invoke any such breach
1977 by Hungary and Czechoslovakia of a treaty on the as a ground for termination when it did.
construction and operation of the Gabcikovo- [108] "It is, moreover, a principle generally
Nagymaros System of Locks. The treaty provides for a accepted in the jurisprudence of international
“joint investment,” of a barrage system designed for arbitration, as well as by municipal courts, that one
producing hydroelectricity, navigation of the Danube, Party cannot avail himself of the fact that the other has
and protection against flooding. not fulfilled some obligation or has not had recourse to
ART 1 (1) of the 1977 Treaty provides for the some means of redress, if the former Party has, by
building of two locks, one at Gabcikovo (Slovakia) and some illegal act, prevented the latter from fulfilling the
the other at Nagymaros (Hungary) to constitute a obligation in question, or from having recourse to the
“single and indivisible operational system of works.” It tribunal which would have been open, to him."
took the form of an integrated project, with two (Factory at Chorzów, Jurisdiction, Judgment No. 8,
contracting parties on equal footing in respect to 1927, P.C.I.J., Series A, No. 9, p. 31.)
financing, construction and operation of works. A Joint Hungary, by its own conduct, had prejudiced
Contractual Plan which complemented the treaty also its right to terminate the Treaty; this would still have
provided that Hungary would have control of the works been the case even if Czechoslovakia, by the time of
at Nagymaros, and Czechoslovakia over the the purported termination, had violated a provision
Gabcikovo. essential to the accomplishment of the object or
Investments have been made, Gabcikovo was purpose of the Treaty.
almost finished, the bypass canal was completed but
Because of intese critcisim, Hungary abandoned the
work at Nagymaros. At this time, negotiations were APPEAL RELATING TO THE JURISDICTION
still being held. Meanwhile, Slovakia also considered OF THE ICAO COUNCIL (INDIA v. PAKISTAN)
an alterative solution of unilaterally diverting the INTERNATIONAL COURT OF JUSTICE
Danube to its territory by constructing a dam (Variant 18 AUGUST 1972
C.) Hungary sent a note verbale terminating the treaty,
and Slovakia began work to close the Danube. Facts: The Council of the International Civil Aviation
Organization (ICAO) rendered a decision on the
Czechoslovakia: Hungary’s abandonment of the preliminary objections raised by India with respect to a
project, a breach of the Treaty. Insists on the complaint by Pakistan.
implementation and called to resume performance.
EuniceHungary
Since Soriano Baliong | based
refuses, on Atty.
decides toPandi’s
operatesyllabus, Pakistan
discussions, slides, and the
Gabcikovo books by had alleged
Henriksen, that India
Akehurst, breached
and Shaw 62 the
unilaterally, for its own purpose and benefit. Its Convention and Transit Agreement. Allegedly, India
unilateral diversion is no more than what Hungary suspended overflights of Indian territory by Pakistan
agreed to do and were just modifi- civil aircraft because of a hijacking incident diverting
an Indian aircraft to Pakistan. When hostilities erupted
2019, EH 402) Jerusalem, 1961
Pakistan had alleged that India breached the declaration that the treaty was no longer operative.
Convention and Transit Agreement. Allegedly, India Such a proposition would be tantamount to opening the
suspended overflights of Indian territory by Pakistan way to a wholesale nullifaction of the practical value of
civil aircraft because of a hijacking incident diverting jurisdictional clauses by allowing a party first to
an Indian aircraft to Pakistan. When hostilities erupted purport to terminate a treaty, and then declare the treaty
from this incident, the parties had adopted a Taskent being now terminated, its jurisdictional clauses were in
Declaration where it was agreed that there should be a consequence void.
resumption of overflights across each other’s territory. [38] India’s allegation of a material breach of
Pakistan interprets this to mean that overflights The Treaties by Pakistan, as justifying India in treating
would be resumed based on the Convention and Transit them as terminated, is, by its very nature, one that
Agreement (The Treaties); India meanwhile, avers that MUST involve the examination of the Treaties in order
these have been suspended during the hostilities, were to see whether, according to the definition of material
never revived and that overflights would be resumed breach of treaty contained in ART 60 of the VCLT,
based on a “special regime.” In this special regime, there has been a violation. The fact that India, has
flights could take place only after permission granted alleged a material breach of the Treaties can only
by India, whereas under The Treaties, they could take increase the need for considering what particular
place as a matter of right, without prior permission. provisions are involved.
India files this application so the court may [46] For these reasons, the Court rejects
declare null and void the decision rendered by the Pakistan’s objection on the question of its competence.
ICAO.
Pakistan: Since India claims that the Treaties are NOT
3.10.5. SUPERVENING IMPOSSIBILITY OF
in force, it does not have standing to invoke the
PERFORMANCE
jurisdiction of ICAO
ART 61, VCLT
ISSUE: Does ICAO have jurisdiction when the Treaty
by which it is based is deemed to have been suspended 1. A party may invoke the impossibility of performing a
or terminated on account of the material breach treaty as a ground for terminating or withdrawing from it if
allegedly committed by Pakistan? the impossibility results from the permanent disappearance
or destruction of an object indispensable for the execution
of the treaty.
RULING: ICAO has jurisdiction.
[31] the contention is that since India was not invoking Draft Articles on the Law of Treaties, ILC
any right afforded by the Treaties but was acting Commentary on ART 58:)
outside them on the basis of a general principle of
international law, therefore the ICAO (whose [2] State practice furnishes few examples of the
jurisdiction was derived from the Treaties, and which termination of a treaty on this ground:
was entitled to deal only with matters under them) must  submergence of an island
be incompetent. For the same reason by which it
 drying up of a river
defended its jurisdiction, the Court maintains that a
mere unilateral affirmation of these contentions—  destruction of a dam or hydro-
electric installation
contested by another party—cannot be utilized so as to
negative the Council’s jurisdiction. The point is NOT What if the disappearance is temporary only?
that they are wrong, but that their validity has NOT yet
been determined. (continued from par. 1) ...If the impossibility is temporary,
[32] This contention if it were put forward, it may be invoked only as a ground for suspending the
would be equivalent to saying that questions that prima operation of a treaty.
facie may involve a given treaty, and if so would be
within the scope of its jurisdictional clause, could be Draft Articles on the Law of Treaties, ILC
removed therefrom at a stroke by a unilateral Commentary on ART 58:)
declaration that the treaty was no longer operative.
Such a Soriano
Eunice proposition would
Baliong beontantamount
| based Atty. Pandi’sto opening
syllabus, the
way to a wholesale nullifaction of the practical value of
jurisdictional clauses by allowing a party first to
purport to terminate a treaty, and then declare the treaty
being now terminated, its jurisdictional clauses were in
2019, EH 402) Jerusalem, 1961
[3] such cases might be regarded simply as cases where This ground may be invoked when:
force majeure could be pleaded as a defence exonerating a
party from liability for non-performance of the treaty. 1. There is an objective change of circumstance
But..when there is a continuing impossibility of 2. The change was unforeseeable
performing recurring obligations of a treaty, it is desirable 3. The existence of the circumstance constituted an
to recognize, as part of the law of treaties, that the essential basis of the consent of the parties
operation of a treaty may be suspended temporarily.  The change must relate to a fact
existing at the time the obligations
[4] unless it is clear that the impossibility will be were assumed and which proved to be
permanent, the right of the party must be limited to a decisive factor prompting the party
invoking it as a ground for suspending the operation of the to assume such obligations.
treaty. “Suspension of the operation of the treaty,” rather 4. The effect of the change is radically to transform
than “termination” as the desirable course of action. the extent of the obligations still to be performed.
 The change must have increased the
3.10.6. FUNDAMENTAL CHANGE OF burden of the obligations to be
CIRCUMSTANCES executed rendering the performance of
something essentially different from
ART 62, VLCT (REBUS SIC STANTIBUS)
that originally undertaken
Fundamental change of circumstances. 1. A fundamental
change of circumstances which has occurred with regard to GABCIKOVO-NAGYMAROS PROJECT
those existing at the time of the conclusion of a treaty, and (HUNGARY V. SLOVAKIA)
which was not foreseen by the parties, may not be invoked INTERNATIONAL COURT OF JUSTICE
as a ground for terminating or withdrawing from the treaty 25 September 1997
unless:
Facts: (refer to p. for the facts) Hungary contends
(a) the existence of those circumstances that were fundamental changes of circumstance---
constituted an essential basis of the consent of the political nature, diminishing economic viability,
parties to be bound by the treaty; and progress of environmental knowledge, development of
new norms of international law which justified its
(b) the effect of the change is radically to termination of the treaty.
transform the extent of obligations still to be
performed under the treaty. ISSUE: Were there fundamental changes of
circumstance justifying Hungary’s termination of the
2. A fundamental change of circumstances may not be treaty?
invoked as a ground for terminating or withdrawing from a
treaty: RULING: There is none.
(a) if the treaty establishes a boundary; or [104] The Court recalls that, in the Fisheries
Jurisdiction case (I.C.J. Reports 1973, p. 63, para. 36),
(b) if the fundamental change is the result of a it stated that, "Article 62 of the Vienna Convention on
breach by the party invoking it either of an the Law of Treaties, . . . may in many respects be
obligation under the treaty or of any other considered as a codification of existing customary law
international obligation owed to any other party to on the subject of the termination of a treaty relationship
the treaty. on account of change of circumstances".
The changed circumstances advanced by
3. If, under the foregoing paragraphs, a party may invoke a Hungary are, in the Court's view, not of such a nature,
fundamental change of circumstances as a ground for either individually or collectively, that their effect
terminating or withdrawing from a treaty it may also would radically transform the extent of the obligations
invoke the change as a ground for suspending the still to be performed in order to accomplish the Project
operation of the treaty. (see pars. 104 for further discussion why.) A
fundamental change of circumstances must have been
unforeseen; the existence of the circumstances at the
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides,
timeandofthethe
books by Henriksen,
Treaty's Akehurst,
conclusion must andhave
Shawconstituted
64
an essential basis of the consent of the parties to be
bound by the Treaty. The negative and conditional
wording of Article 62 of the Vienna Convention on the
2019, EH 402) Jerusalem, 1961
unforeseen; the existence of the circumstances at the IV

time of the Treaty's conclusion must have constituted ACTORS IN THE INTERNATIONAL LEGAL
an essential basis of the consent of the parties to be SYSTEM
bound by the Treaty. The negative and conditional
wording of Article 62 of the Vienna Convention on the
Law of Treaties is a clear indication moreover that the 4.1. THE STATE
stability of treaty relations requires that the plea of 4.1.1 RECOGNITION
fundamental change of circumstances be applied only
in exceptional cases. Theories as to nature of recognition:
[112] ART 15, 19, 20 of the Treaty inserted a 1) Constitutive theory
provision that in carrying out its obligations the quality
 it is the act of recognition by other states
of the water in the Danube must NOT be impaired, and
that creates a new state and endows it with
the parties must take new environmental norms into legal personality and NOT the process by
consideration to be specified in the Joint Contractual which it actually obtained independence
Plan. This is an evolving provision. The treaty is NOT
 new states are established in the
static, and is open to adapt to emerging norms of
international community as fully fledged
international law.
subjects of international law by virtue of
[114] The Court is of the view that although
the will and consent of already existing
BOTH Hungary and Czecholovakia failed to comply
states
with their obligation, this reciprocal wrongful conduct
2) Declaratory theory
did NOT bring the treaty to an end nor justify its
termination. The Court would set a precedent with  Recognition is merely an acceptance by
states of an already existing situation.
disturbing implications for treaty relations and the
integrity of pacta sunt servanda if it were to conclude  A new state will acquire capacity in
that a treaty in force between States, which the parties international law NOT by virtue of the
have implemented...can be unilaterally set aside on the consent of others but by virtue of a
grounds of reciprocal non-compliance. It would be particular factual situation.
otherwise, if the parties decided to terminate by mutual  It is legally constituted by its own efforts
consent. and circumstances and will NOT have to
[115] The notification of termination by await the procedure of recognition by
Hungary did NOT have the legal effect of terminating other states.
the 1977 Treaty and related instruments.
Actual practice leads to a middle position between the two.
Act of recognition by one state of another indicates that the
3.10.7. EMERGENCE OF A NEW PEREMPTORY former regards the latter as having conformed with the
NORM basic requirements of international law as to the creation of
ART 64, VCLT. Emergence of a new peremptory norm a state.
of general international law (“jus cogens”). If a new (Shaw, International Law, 6th ed. pp. 445-446)
peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes 4.1.2 THE MONTIVIDEO CRITERIA AND
void and terminates. REQUIREMENTS OF
EFFECTIVENESS
3.10.8. OUTBREAK OF WAR
The 1933 Montevideo Convention on Rights and Duties
ART 73, VCLT. Cases of State succession, State of States provides in Article 1:
responsibility and outbreak of hostilities. The provisions
of the present Convention shall not prejudge any question The State as a person of international law should possess
that may arise in regard to a treaty from a succession of the following qualifications:
States or from the international responsibility of a State or
(a) a permanent population;
from the outbreak of hostilities between States.
2019, EH 402) Jerusalem, 1961
(b) a defined territory; title COULD NOT prevail over the continuous and
(c)government;and peaceful display of authority by another State.
(d) capacity to enter into relations with other States Principle of contiguity
A. DEFINED TERRITORY Impossible to show the existence of a rule of positive
Territorial sovereignty involves the exclusive right to international law to the effect that islands situated
display the activities of a State. (Island of Palmas). outside territorial waters should belong to a State from
Control of territory is the essence of a State. the mere fact that its territory forms the terra firma
(nearest continent or island). Principle of contiguity
cannot be admissible as a legal method of deciding
ISLAND OF PALMAS (NETHERLANDS v. territorial sovereignty for it will lead to arbitrary
UNITED STATES) results.
1928 RIAA 829, Opinion of Arbitrator Max Huber on
Territorial Sovereignty Act of effective apprehension
If the claim of sovereignty is based on the
US: She hinges her title on cession, as successor to continuous and peaceful display of authority—the acts
the rights of Spain over the Philippines and in the of East India Company must be assimilated as acts of
first place of discovery. When Spain ceded Netherlands itself. It gave the Dutch East Asia
Philippines to the US, under the Treaty of Paris, the Company, although not recognized as members of the
Island of Palmas was included and therein remained community of nations, was invested by Netherlands
intact under the Treaty. By principle of contiguity, it with public powers for acquisition and administration
belongs to the power having sovereignty over the of colonies. Existence of Dutch rule is proved by the
Philippines. fact that the Dutch flag was being waved by the people
of the island, the company also exercised rights of
Netherlands: Spain’s discovery is NOT proved. Even suzerainty over Palmas, the natives sent yearly presents
if Spain had a title, such had been lost. Netherlands, as token of their submission, and were obliged to give
through the East India Company have possessed and assistance in case of distress.
exercised rights of sovereignty out of conventions Thus, Netherlands succeeded in establishing its
entered into with the natives and princes of the claim to sovereignty on the title of peaceful and
island, establishing the suzerainty of the continuous display of State authority. It is so open
Netherlands over the territories of these princes, and public that is to say that it was in conformity with
including Palmas. usages as to exercise of sovereignty over colonial
States.
Issue: Whether the Island of Palmas in its entirety
form part of Netherlands territory or of territory to But, delimitation of state boundaries, while crucially
the US. important does NOT require absolute certainty.
Ruling: It belongs to the Netherlands. NORTH SEA CONTINENTAL SHELF CASE

Discovery conferring sovereignty (GERMANY v. DENMARK; GERMANY v.
Discovery alone without any subsequent act NETHERLANDS, ICJ, 1969
CANNOT at the present time, suffice to prove
sovereignty over Palmas. As there is no sovereignty, [46] The appurtenance of a given area...in no way
abandonment by one State that another may take place governs the precise determination of its boundaries,
does NOT arise. any more than uncertainty as to boundaries can affect
Discovery creating an inchoate title territorial rights....there is...no rule that the land
The prevailing view of international law in the frontiers of a State must be fully delimited and
th
19 century was, an inchoate title must be completed defined...
within a reasonable period by the effective occupation
of the region claimed to be discovered. An inchoate
title COULD NOT prevail over the continuous and
Eunice Soriano
peaceful displayBaliong | based on
of authority byAtty. Pandi’s
another syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 66
State.
Principle of contiguity
Impossible to show the existence of a rule of
2019, EH 402) Jerusalem, 1961
 What matters is that a State, CONSISTENTLY socially and politically organized in tribes and under
CONTROLS a SUFFICIENTLY IDENTIFIABLE chiefs competent to represent them. It also shows
CORE OF TERRITORY. (Akehurst, p. 76) that, in colonizing Western Sahara,' Spain did not
 A state may be recognized a legal person even proceed on the basis that it was establishing its
though it is involved in a dispute with its sovereignty over terrae nullius. In its Royal Order of
neighbours as to the precise demarcation of its 26 December 1884, far from treating the case as one
frontiers, so long as there is a CONSISTENT of occupation of terra nullius, Spain proclaimed that
BAND OF TERRITORY which is undeniably the King was taking the Rio de Oro under his
CONTROLLED by the government of the alleged
protection on the basis of agreements which had
State. (Shaw, p. 199)
been entered into with the chiefs of the local tribes:
Examples: the Order referred
expressly to "the documents which the independent
1) Israel was recognized a State, in spite of the tribes of this part of the coast" had "signed with the
unsettled status of its borders in the Arab-Israeli representative of the Sociedad Espafiola de
conflict. Africanistas", and announced that the King had
2) “State of Palestine” cannot be regarded as a State. confirmed "the deeds of adherence" to Spain.
Palestinian organizations did NOT control any part
of the territory they claim. Atty Pandi: This differs from res communis which refers
3) Albania prior to World War I was recognised by to an area that is NOT subject to the legal title of any state
many countries even though its borders were in such as the high seas)
dispute. (Question of the Monastery of Saint-
Naoum Advisory Opinion (Albanian Frontier), C. EFFECTIVE CONTROL BY A GOVERNMENT
PCIJ, 4 Sept. 1924)  Mere existence of a government, does not
suffice if it does not have effective control.
B. POPULATION
Example: State of Palestine declared
The fact that large numbers of nomads are moving in and in 1988 by Palestinian organizations was NOT
out of the country, as in the case of Somalia, is in itself, no a state, due to lack of effective control.
bar to statehood, as long as there is a significant number of
permanent in habitants. But temporary ineffectiveness of government as a result of
civil war or upheavals does NOT immediately affect the
WESTERN SAHARA ADVISORY OPINION, ICJ, legal existence of a State.
1975
Independence
Both Morocco and Mauritania showed interest in
The capacity of a state to provide for its own well-being
the Western Sahara territory. This question was
and development free from the domination of other states,
asked before the ICJ:
providing it does NOT impair or violate their legitimate
1) Was Western Sahara (Rio de Oro and Sakiet
rights. (1949 Draft Declaration on the Rights and Duties of
El Hamra) at the time of colonization by States)
Spain a territory belonging to no one (terra
nullius)? Austro-German Customs Union Case (dissenting opinion
of Judge Anzilotti, PCIJ, 1931)
Ruling: Western Sahara, at the time of the
colonization of Spain, was NOT terra nullius. Restrictions upon a state’s liberty, whether arising out of
customary law or treaty obligations, do NOT as such affect
Terra Nullius Defined its independence. As long as such restriction do NOT
[80] ...a territory belonging to no one. place the state under the legal authority of another, the
[81] at the time of colonization, Western Sahara was former maintains it status as an independent country.
inhabited by peoples which, if nomadic, were
socially and politically organized in tribes and under
Eunicecompetent
chiefs Soriano Baliong
to| represent
based on Atty.them.
Pandi’sItsyllabus,
also shows
that, in colonizing Western Sahara,' Spain did not
proceed on the basis that it was establishing its
sovereignty over terrae nullius. In its Royal Order of
2019, EH 402) Jerusalem, 1961
Lotus Case (ICJ) Exception: If unlawful use of force is used in order to

further the realization of the self-determination of a
Restrictions upon the independence of states cannot be population.
presumed.
4.1.4. RIGHT TO SELF-DETERMINATION
Principle of Non-Intervention
Right to self-determination- stipulates that all peoples
No state or group of states has the right to intervene,
have a right to freely determine their political status and
directly or indirectly for any reason whatever, in the
pursue their economic, social, and cultural development.
internal or external affairs of any other state...armed
(Henriksen, p. 69)
intervention and all other forms of interference or
attempted threats against the personality of the state or
against its political economic, and cultural elements, are in CASE CONCERNING EAST TIMOR
violation of international law. (PORTUGAL v. AUSTRALIA, ICJ, 30 June 1995)
(Declaration on Principles of International Law
Facts: East Timor was a colony of Portugal. Latter
Concerning Friendly Relations and Co-operation Among
remained there until 1975. Western part of the island
States, 1970)
came under Dutch rule and later became part of
Examples: Indonesia. Since their departure, Indonesia has
occupied and has remained under its effective control.
1) Assistance or aid to subversive elements to Later, the question of East Timor became the subject of
overthrow the government of a state the General Assembly, Security Council resolutions
2) Use of force to deprive peoples of their national which called upon all states to respect the territorial
identity integrity of East Timor and its people’s inalienable
right to self-determination, calling upon Indonesia to
Equality withdraw, without delay all its forces from the territory
and further called on Portugal, as administering power
All states enjoy sovereign equality. They have equal rights to cooperate with the UN to enable the people to
and duties and are equal members of the international exercise freely their right to self-determination.
community, nowithstanding differences of an economic, This incorporation of Indonesia was recognized
social, political, or other nature. (1970 Declaration of by Australia de facto. Prior to this, Australia and
Principles of International Law) Indonesia had established a delimitation of the
continental shelf between their respective coasts but it
States, irrespective of size and power, have the same
stopped shorted on either side of the continental shelf
juridical capacities and functions, are entitled to one vote
between the south coast of East Timor and the north
in the UNGA.
coast of Australia. Since it did not come to fruition, the
two countries turned to the possibility of joint
exploration and exploitation of the resources. A Treaty
4.1.3. ILLEGALITY IN THE CREATION was concluded whereby a Zone of Cooperation was
OF A STATE created in East Timor.
Thus Portugal enters the picture, maintaining
States created in flagrant violation of basic norms of that in negotiating and concluding a treaty in 1989,
international law, potentially of jus cogens norms are Australia has acted unlawfully and has infringed the
illegitimate. right of the people of East Timor to self-determination
and the permanent sovereignty over its natural
Ex injuria jus non oritur- legal rights cannot derive from resources.
an illegal situation. ISSUE: Can a third state such as Portugal, invoke a
violation of this right?
Example: A territorial entity created through the unlawful [29] rights which Australia allegedly breached were
use of force may also be effectively barred from statehood. rights erga omnes...Portugal could require it,
individually, to respect them regardless of whether or
not another State had conducted itself in a similarly
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the books
unlawful by Henriksen, Akehurst,
manner...right and Shaw to68 self-
of peoples
determination, as it evolved from the Charter and from
the UN practice, has an erga omnes character, is
irreproachable...
2019, EH 402) Jerusalem, 1961
not another State had conducted itself in a similarly “unilaterally,” is the right to effectuate secession
unlawful manner...right of peoples to self- without prior negotiations with other provinces and
determination, as it evolved from the Charter and federal government. Under the Consitution, secession
from the UN practice, has an erga omnes character, requires that an amendment be negotiated. But
is irreproachable... negotiations would now be difficult after such a
referendum.
The democracy principle...cannot be invoked to
REFERENCE RE SUCCESSION OF QUEBEC, trump the principles of federalism and rule of law,
SUPREME COURT OF CANADA, 1998 rights of individuals and minorities, or the operation of
democracy in the other provinces or in Canada as a
The Governor in Council puts before the Court, the whole. No negotiations could be effective if secession
following questions: is cast as an absolute legal entitlement.
A breach of the constitutional duty to negotiate
1. Under the Constitution of Canada, can the National undermines legitimacy. Failure to undertake
Assembly, legislature or government of Quebec effect negotiations may undermine that government’s claim to
the secession of Quebec from Canada unilaterally? legitimacy which is a precondition for recognition by
2. Does international law give the National Assembly, the international community.
legislature or government of Quebec the right to effect Secession of Quebec from Canada cannot be
the secession of Quebec from Canada unilaterally? In accomplished by the National Assembly unilaterally,
this regard, is there a right to self-determination under that is, without negotiations.
international law that would give the National
Assembly, legislature or government of Quebec the ISSUE: Is there a right to self-determination under
right to effect the secession of Quebec from Canada international law that would give the National
unilaterally? Assembly, the right to effect secession of Quebec?
3. In the event of a conflict between domestic and International law does not specifically grant
international law on the right of the National Assembly, component parts of sovereign states the legal right to
legislature or government of Quebec to effect the secede unilaterally from their “parent” state. However,
secession of Quebec from Canada unilaterally, which the existence of the right of a people to self-
would take precedence in Canada? determination is now so widely recognized in
international conventions that the principle has
Ruling: acquired a status beyond “convention” and is
Quebec could not, despite a clear referendum result, considered a general principle of international law.
purport to invoke a right of self-determination to dictate ART 55 UN Charter...promote goals such as
the terms of a proposed secession to the other parties to higher standards of living, full employment and human
the federation. rights, “with a view to the creation of conditions of
stability and well-being which are necessary for
Q: What is secession? peaceful and friendly relations among nations based on
The effort of a group or section of a state to respect for the principle of equal rights and self-
withdraw itself from a political and constitutional determination of peoples.”
authority of that State, with a view to achieving
statehood for a new territorial unit on the international Kinds or Classes of Self-Determination
plane. Right to self-determination is normally fulfilled
Although not expressly prohibited, a seccession through:
would purport to alter the governance of Canadian 1. INTERNAL SELF-DETERMINATION
territory in a manner which is inconsistent with current (Autonomy)—a people’s pursuit of its political,
constitution. economic, social, and cultural development
ISSUE: Can the National Assembly effect secession within the framework of an existing state.
of Quebec from Canada unilaterally? 2. EXTERNAL SELF-DETERMINATION
What is contemplated by a right to cede (Secession) meanwhile as the establishment of
“unilaterally,” is the right to effectuate secession a sovereign and independent State.
without prior negotiations with other provinces and
federal government. Under the Consitution, secession Entities Granted to Exercise this Right:
requires that an amendment be negotiated. But 4) Those under colonial rule or foreign
negotiations would now be difficult after such a occupation—right to break away from the
referendum. imperial power
2019, EH 402) Jerusalem, 1961
a sovereign and independent State. community, which is likely to consider the legality of
the conduct of Quebec and Canada in determining
Entities Granted to Exercise this Right: whether to grant or withhold recognition.
7) Those under colonial rule or foreign such a threshold:
occupation—right to break away from the 4) The Quebec
ACCORDANCE WITH people is NOT victim
INTERNATIONAL LAW of
imperial power OF THEattacks
UNILATERAL on its DECLARATION
physical existence OF or
8) Those subject to alien subjugation, INDEPENDENCEintegrity, IN or RESPECT
a massive OF violation
KOSOVO, of its
domination, or exploitation outside a fundamental
ADVISORY rights. ICJ,
OPINION, They1994are NOT an
colonial context. oppressed people.
9) (unclear, unestablished standard) Those Facts: To put ana. end They occupy
to the armed conflict prominent
in Kosovo,
people blocked from a meaningful the UN Security Council positions within the
authorized theestablishment
government
exercise of its right to self-determination of an international civil of Canada
presence in Kosovo to provide
internally, is entitled, as a last resort, to an interim administration
b. Residents which
makewill oversee
political the
choices
exercise it by secession. development of a democratic
and pursueinstitution.
economic, The United
social, and
But even assuming that the third criterion exists, Nations Administration Mission in Kosovo (UNMIK)
cultural development
Quebec CANNOT be said to approach such a exercises all c. legislative, executive,
Quebecers are andequitably
judicial
threshold: authority. One of the principal responsibilities of the
represented in legislative,
3) The Quebec people is NOT victim of international civil presence was the organization and
executive, and judicial
attacks on its physical existence or overseeing of provisional institutions for democratic
institutions.
integrity, or a massive violation of its self-government pending a political settlement. In the
fundamental rights. They are NOT an Constitutional
oppressed people. Q: What is theFramework, it was statedunder
“people” contemplated that this
the
exercise
right? of the responsibilities of the Provisional
g. They occupy prominent positions Institutions
within the government of Canada “a people”---shall in no way
(1) governed by a affect
colonialtheempire;
Secretary
(2)
General’s implementation of the
subject to alien subjugation, domination, UN Security Councilor
h. Residents make political choices Resolution.
and pursue economic, social, and exploitation; (3) denied any meaningful exercise of
cultural development its rightLater, the Security Council
to self-determination intended
within the tostate
startofa
political process
which it forms a part. to determine Kosovo’s future status.
i. Quebecers are equitably Negotiations between Serbia and Kosovo began but
represented in legislative, Quebece does NOT meet the threshold of a colonial
were unable to reach an agreement
people or an oppressed people, nor can it be on Kosovo’s status.
executive, and judicial institutions. Kosovo’s governmental and administrative
suggested that Quebecers have beenfunctions, denied
cultural heritage and religious sites, economic issues,
Q: What is the “people” contemplated under this meaningful access to government to pursue their
and community rights were so “far apart” from Serbia.
right? political, economic, cultural, and social
Thus, the Special Envoy to the Sec-Gen recommended
“a people”--- (1) governed by a colonial development. The “national assembly, legislature,
that the only viable option for Kosovo would be
empire; (2) subject to alien subjugation, domination, or or the government of Quebec” do NOT enjoy a right
independence. This recommendation was attached to
exploitation; (3) denied any meaningful exercise of its at international law to effect the secession of Quebec
the Envoy’s Comprehensive Proposal which also called
right to self-determination within the state of which it from Canada unilaterally.
for the expiry of the UNMIK after a 120-day transition.
forms a part. Ultimate
Thereafter, elections success of ainunilateral
were held secession
2007. A declaration
Quebece does NOT meet the threshold of a would be dependent on recognition
of independence by the newly elected Assembly by the of
colonial people or an oppressed people, nor can it be international
Kosovo, Primecommunity,
Minister, and which is likely
President wastoadopted
consider in
suggested that Quebecers have been denied meaningful the
Feb legality
2008. of the conduct of Quebec and Canada in
access to government to pursue their political, determining
Serbia informedwhetherthe Sec-Gen to that
grant or withhold
such declaration was
economic, cultural, and social development. The recognition.
a forceful and unilateral secession of a part of the
“national assembly, legislature, or the government of territory of Serbia and did not produce any legal effect.
Quebec” do NOT enjoy a right at international law to ISSUE: Whether, outside the context of non-self-
effect the secession of Quebec from Canada governing territories and peoples subject to alien
unilaterally. subjugation, domination and exploitation, the
Ultimate success of a unilateral secession international law of self-determination confers upon
would be dependent on recognition by the international part of the population of an existing State a right to
community, which is likely to consider the legality of separate from that State
the conduct
Eunice SorianoofBaliong
Quebec and
| based Canada
on Atty. insyllabus,
Pandi’s determining RULING:
discussions, slides, Yes,bythere
and the books is a Akehurst,
Henriksen, right to and
self-determination.
Shaw 70
whether to grant or withhold recognition. (Although in this case, the Court refrained from
elaborating further, considering that it was not the
focal point of the case.)
[79] International law of self-determination developed
2019, EH 402) Jerusalem, 1961
separate from that State Examples:

RULING: Yes, there is a right to self-determination. 1) Purchase of USA of Alaska from Russia in 1867
(Although in this case, the Court refrained from 2) Acquisition of USA of the Danish West Indies
elaborating further, considering that it was not the from Denmark in 1917
focal point of the case.) 3) European states’ acquisition of territories in Africa
[79] International law of self-determination developed and Asia during the period of colonization
in the second-half of the twentieth century to create a
right to independence for peoples of non-self-governing B. ACCRETION
territories and peoples subject to alien subjugation,
domination, and exploitation. A great many new States New land is gradually created naturally. But artificial
have come into existence as a result of the exercise of accretion will only be accepted as new territory if it does
this right. not infringe the rights of other states or if those states have
Black-Letter Sources on the Right to Self-Determination: given their consent.
1.) ART 1 UN CHARTER
2.) ART 73 UN CHARTER IN THE MATTER OF THE SOUTH CHINA SEA
3.) General Assembly Resolution 15(a) ARBITRATION (PHILIPPINES v. CHINA, PCIJ,
4.) General Assembly Resolution 2625 12 July 2016)
“Declaration Concerning Friendly Relations, 24
Oct. 1970 Facts: For a number of years, China has been
5.) ART 1 International Covenant on Civil and constructing a string of artificial islands such as reefs
Political Rights ( ) and low-tide elevations in the South China Sea.
6.) ART International Covenant on Economic, Philippines: Low-tide elevations are defined and
Social, and Cultural Rights (ICESCR) governed by ART 13 of the Convention. “Low tide
elevations are NOT land territory,” the Philippines
Defense against self-determination emphasizes that “no measure of occupation or control
can establish sovereignty over such features.”
Uti possidetis juris- geographical boundaries remain in China: China has indisputable sovereignty. The
force as created by treaties, regardless of whether or not tribunal understands this to mean that China considers
the boundaries coincide with ethnic, tribal, religious, or these reefs to be high-tide features entitled to a
political affiliations territorial sea.
Atty Pandi: Note that this principle only applies if there is
a TREATY especially demarcating the area. ISSUE: Can these entities form the basis of China’s
claim of title over the areas in question?
Ruling: No. China cannot.
4.1.5. ACQUISITION OF NEW TERRITORY
[305] With respect to low-tide elevations, several
Ways of Acquiring New Territory points necessarily follow from this pair of definitions.
First, the inclusion of the term “naturally formed” in
1) Cession the definition of both a low-tide elevation and an island
2) Accretion indicates that the status of a feature is to be evaluated
3) Avulsion on the basis of its natural condition. As a matter of law,
4) Occupation human modification cannot change the seabed into a
5) Prescription low-tide elevation or a low-tide elevation into an island.
A low-tide elevation will remain a low-tide elevation
A. CESSION under the Convention, regardless of the scale of the
island or installation built atop it.
A state that acquires the territory cannot obtain more rights [306] This point raises particular considerations in the
to the territory than those possessed by the ceding state. present case. Many of the features in the South China
The acquiring state must respect the potential rights of Sea have been subjected to substantial human
third states (Island of Palmas) modification as large islands with installations and
airstrips have been constructed on top of the coral reefs.
In some
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, cases,
and the booksitby
would likely
Henriksen, no longer
Akehurst, be possible
and Shaw 71 to
directly observe the original status of the feature, as the
contours of the reef platform have been entirely buried
by millions of tons of landfill and concrete. In such
circumstances, the Tribunal considers that the
2019, EH 402) Jerusalem, 1961
airstrips have been constructed on top of the coral reefs. 4.1.6. STATE SUCCESSION
In some cases, it would likely no longer be possible to
directly observe the original status of the feature, as the State succession—concerns the replacement of one state
contours of the reef platform have been entirely buried by another in the responsibility for the international
by millions of tons of landfill and concrete. In such relations of territory
Convention requires that the status of a feature be Atty Pandi: So first, determine if the entity should be
ascertained on the basis of its earlier, natural considered a continuation of a pre-existing state or as a
condition, prior to the onset of significant human completely new and separate entity.
modification. The Tribunal will therefore reach its
Two Approaches to State Succession:
decision on the basis of the best available evidence of
the previous status of what are now heavily modified 1.) THE CLEAN SLATE APPROACH
coral reefs.
An emerging state is not bound by the treaties and
[308] Ipso facto, if a low-tide elevation is NOT entitled agreements that were concluded by its predecessor.
to a territorial sea, it is NOT entitled to an exclusive
economic zone or continental shelf. The same Exceptions:
restriction follows implicity from ART 121(3), which
provides that even certain high-tide features are deemed a. Territorial treaties
to be rocks that are ineligible to generate an exclusive In Gabcikovo, the ICJ decided that the 1977 treaty
economic zone or continental shelf. was territorial in nature so that it “created rights
and obligations attaching to the parts of the
Danube to which it relates.” As such, the treaty
was transmittable to Slovakia which was bound by
it from the day it came into existence.
C. This
[306] AVULSION
point raises particular considerations in the
b. Boundary Treaties
present case. Many of the features in the South China
Very
Sea sudden
have beenor violent changestoas substantial
subjected a result of storns
human or
natural disasters. 2.) CONTINUITY APPROACH
modification as large islands with installations and
airstrips have been constructed on top of the coral reefs. ART 62(2) VCLT
D. OCCUPATION
In some cases, it would likely no longer be possible to
directly
Terra observeState
nullius- the original statusterritory
can obtain of the feature,
that hasas never
the [2] A fundamental change of circumstance may not be
contours of the reef platform
been the subject of another state. have been entirely buried invoked as a ground for terminating or withdrawing from a
by millions of tons of landfill and concrete. In such treaty:
Elements:
Convention requires that the status of a feature be a.) If the treaty establishes a boundary
1) Exercise
ascertained onofthe
effective
basiscontrol
of itsover the territory
earlier, natural
2) Intention to obtain title
condition, prior to the onset of significant human ART 11, Vienna Convention on Succession of States in
modification. The Tribunal will therefore reach its respect to Treaties (VCSSRT)
E. PRESCRIPTION
decision on the basis of the best available evidence of A succession of States does not as such affect:
the previous status of what are now heavily modified
Derived
coral from the existence of a form of implied consent reefs.on a) A boundary established by a treaty
the part of the state whose rights are being displaced by the
b) Obligations and rights established by a treaty and
acquiring
[308] Ipso state.
facto, if a low-tide elevation is NOT entitled relating to the regime of a boundary.
to a territorial
Consent means sea,thatit acts
is NOT
of entitled
acquiringto state
an exclusive
must be
economic zone or continental shelf. The same A boundary established by a treaty achieves a permanence
peaceful and that sustained protests and objection by the
restriction which the treaty itself does NOT enjoy. (Shaw)
old state willfollows
preventimplicity from ART 121(3), which
prescription.
provides that even certain high-tide features are deemed
to be rocks
Vatican Citythat(The
are ineligible
Holy See)-to generate an exclusive
entertains diplomatic
economic zone or continental shelf.
relations and joined international organizations but state
functions are performed by Italy.
2019, EH 402) Jerusalem, 1961
Boundary and territorial treaties made between two ARBITRATION COMMISSION OF THE PEACE
parties constitutes a special category of treaties CONFERENCE OF YUGOSLAVIA, Opinion No. 8
representing a legal reality which necessarily impinges
upon third states because they have the effect erga Facts: In Opinion NO. 1 on 29 November 1991, the
omnes. Arbitration Commission (aka the Badinter Arbitration
Committe) stated that the Socialist Federal Republic of
-Eritrea v. Yemen Yugoslavia “SFRY” was in the process of dissolution.
On 18 May 1992, the Chairman of the Conference on
Yugoslavia asked the Commission whether this process
ART 15, VCSSRT. Succession in respect of part of of dissolution could now be regarded as complete.
territory
When part of the territory of a State, or when any territory RULING: The process of dissolution was now
for the international relations of which a State is complete and the SFRY no longer existed. The
existence of a federal State was seriously compromised
responsible, not being part of the territory of that State,
becomes part of the territory of another State: when a majority of the entities which comprised that
State constituted themselves as independent States with
(a) treaties of the predecessor State cease to be in force in the result that federal authority could no longer be
respect of the territory to which the succession of States exercised.
relates from the date of the succession of States; and Bosnia-Hercegovina, Croatia, and Slovenia had
been recognized as independent States by the member
(b) treaties of the successor State are in force in respect of states of the European Community and had been
the territory to which the succession of States relates from admitted to the UN. The SFRY’s federal institutions
the date of the succession of States, unless it appears from had ceased to function. Serbia and Montenegro had
the treaty or is otherwise established that the application of constituted a new State. The federal Republic of
the treaty to that territory would be incompatible with the Yugsolavia and the territory of SFRY had come
object and purpose of the treaty or would radically change entirely under the control of the various new States. In
the conditions for its operation. addition, the UN Security Council resolutions had
spoken of the “former SFRY” and had noted that the
Moving-frontiers Rule claims of the FRY to continue the SFRY’s membership
GENERAL RULE: When part of the territory of one of the UN had not been generally accepted.
State, becomes part of the territory of another, the treaties While recognition of a State was only
of the former cease to apply to the territory, while the declaratory of the fact of statehood, such recognition
treaties of the latter extend to the territory. and the admission of an entity to membership of
EXCEPTION: If incompatible with the object and purpose international organizations was evidence that the other
of the treaty. States were convinced that the political entity so
recognized was a realuty and conferred upon it rights
TERRITORIAL BOUNDARY TREATY and obligations under international law.
TREATY “frontier disputes,”
“disputes as to attribution “delimitation disputes”
of territory” ARBITRATION COMMISSION OF THE PEACE
Attribution of sovereignty Delimitation procedures CONFERENCE OF YUGOSLAVIA, Opinion No.10
over the whole of a affecting a portion of land
geographical entity. which is NOT Facts: Montenegro and Serbia decided to establish a
geographically autonomous new entity bearing the name “Federal Republic of
Uti Possidetis Juris—geographical boundaries created by Yugoslavia,” and adopted its constitution. It claimed
treaties remain in force regardless of whether or not the that the FRY continues automatically, the membership
boundaries coincide with ethnic, tribal, religious, or of the former SFRY in the UN.
political affilitations
RULING: The FRY is actually a new State and could
not be the sole successor to the SFRY. This means that
FRY does not ipso facto enjoy the recognition enjoyed
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and SFRY
by the the books by Henriksen,
under Akehurst,
completely and Shaw
different 73
circumstances.
It is for other states, where appropriate to recognize the
new State.
2019, EH 402) Jerusalem, 1961
that the FRY continues automatically, the membership [17] The Parties have argued at length over how the
of the former SFRY in the UN. present dispute is to be classified in terrns of a
distinction sometimes made by legal writers between
RULING: The FRY is actually a new State and could "frontier disputes" or "delimitation disputes", and
not be the sole successor to the SFRY. This means that "disputes as to attribution of territory". According to
FRY does not ipso facto enjoy the recognition enjoyed this distinction, the former refer to delimitation
by the SFRY under completely different circumstances. operations affecting what has been described as "a
It is for other states, where appropriate to recognize the portion of land which is not geographically
new State. autonomous" whereas the object of the latter is the
attribution of sovereignty over the whole of a
geographical entity. Both Parties seem ultimately to
CCPR GENERAL COMMENT NO. 26 have accepted that the present dispute belongs rather to
Continuity of Obligations the category of delimitation disputes, even though they
8 December 1997 fail to agree on the conclusions to be drawn from this.
[3] The Covenant is NOT the type of treaty which by [18] The Chamber also feels obliged to dispel a
nature, implies a right of denunciation. ..it does NOT misunderstanding which might anse from this
have a temporary character typical of treaties where a distinction between "delimitation disputes" and
right of deunciaiton is deemed to be admitted, "disputes as to attribution of territory". One of the
notwithstanding the absence of a specific provision to effects of this distinction is to contrast "legal titles" and
the effect. "effectivités". In this context, the term "legal title"
[4] The rights enshrined in the Covenant belong to the appears to denote documentary evidence alone. It is
people living in the territory of the State party. The hardly necessary to recall that this is not the only
HRC has consistently taken the view, as evidenced by accepted meaning of the word "title—“ comprehend
its long-standing practice, that once the people are both any evidence which may establish the existence of
accorded the protection of the rights under the a right, and the actual source of that right.
Covenant, such protection devolves with territory and [19] Characteristic feature of the legal context: BOTH
continues to belong to them, nothwithstanding the states derive their existence from the process of
change in government of the State party, including decolonization. Their territories, and that of Niger,
dismemberment in more than one State or State were formerly part of the French colonies...before
succession or any subsequent action of the State party accession to independence...Burkina Faso corresponds
designed to divest them of the rights guaranteed by the to the colonly of Upper Volta, and Mali to the colony
Covenant. of Sudan. The Parties drew inspiration from the
Resolution adopted at the Conference of African Heads
FRONTIER DISPUTE (Burkina Faso v. Mali) of State and Government meeting in Cairo whereby the
22 December 1986, ICJ, Rep 554 conference solemnly pledge themselves to respect
frontiers...the Special Agreement also stated that the
The task entrusted to the Chamber, is that of indicating settlement of the dispute must be “based in particular
the line of the frontier between Brkina Faso and Mali, on respect for the principle of the intangibility of
in the disputed area, as defined in the Special frontiers inherited from colonization.”
Agreement as “a band of territory extending from the
sector Koro (Mali) Dijibo (Upper Volta) up to and [20] The chamber cannot disregard the principle of uti
including the region of the Beli.” Beli is the largest of possidetis juris, application of which gives rise to this
temporary watercourses in the region. In the Niamey respect for intangibility of frontiers...although it is NOT
Protocol of 1964, the two state agreed that for purpose firmly established in international law that this applies
of delimiting they would have recourse to the where decolonization is concerned...the principle uti
documents mention in the Protocol but as of now have possidetis is a general principle, which is logically
not yet carried any delimitation operations. connected with the phenomenon of the obtaining of
independence, wherever it occurs. Its obvious purpose
is to prevent the independence and stability of new
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the
States books by
being Henriksen, Akehurst,
endangered and Shaw struggles
by fratricidal 74
[17] The Parties have argued at length over how the provoked by the challenging of frontiers following the
present dispute is to be classified in terrns of a withdrawal of the administering power
distinction sometimes made by legal writers between
"frontier disputes" or "delimitation disputes", and [22] The elements of utipossidetis were latent in the
2019, EH 402) Jerusalem, 1961
is to prevent the independence and stability of new with this form of decolonization wherever it occurs.
States being endangered by fratricidal struggles
provoked by the challenging of frontiers following the 24. The territorial boundaries which have to be
withdrawal of the administering power respected may also derive from international frontiers
whch previously divided a colony of one State from a
[22] The elements of utipossidetis were latent in the colony of another, or indeed a colonial territory from
many declarations made by African leaders in the dawn the territory of an independent State, or one which was
of independence. These declarations confirmed the under protectorate, but had retained its international
maintenance of the territorial status quo at the time of personality.
independence, and stated the principle of respect both
for the frontiers deriving from international agreements, There is no doubt that the obligation to respect
and for those resulting from mere interna1 pre-existing international frontiers in the event of a
administrative divisions. The Charter of the State succession derives from a general rule of
Organization of African Unity did not ignore the international law, whether or not the rule is expressed
principle of utipossidetis, but made only indirect in the formula uti possidetis. Hence the numerous
reference to it in Article 3, according to which member solemn affirmations of the intangibility of the frontiers
States solemnly affirm the principle of respect for the existing at the time of the independence of Afncan
sovereignty and territorial integrity of every State. States, whether made by senior African statesmen or by
organs of the Organization of African Unity itself, are
23. There are several different aspects to this pnnciple, evidently declaratory rather than constitutive : they
The first aspect, is found in the pre-eminence recognize and confirm an existing principle, and do not
accorded to legal title over effective possession as a seek to consecrate a new principle or the extension to
basis of sovereignty. Its purpose, at the time of the Africa of a rule previously applied only in another
achievement of independence by the former Spanish continent.
colonies of America, was to scotch any designs which
non-American colonizing powers might have on [25] At first sight this principle conflicts outright
regions whch had been assigned by the former with another one, the right of peoples to self-
metropolitan State to one division or another, but which determination. In fact, however, the maintenance of
were still uninhabited or unexplored. the territorial status quo in Africa is often seen as
the wisest course, to preserve what has been
However, there is more to the principle of uti possidetis achieved by peoples who have struggled for their
than this particular aspect. The essence of the principle independence, and to avoid a disruption which
lies in its primary aim of securing respect for the would deprive the continent of the gains achieved by
territorial boundaries at the moment when much sacrifice. The essential requirement of
independence is achieved. Such territorial boundaries stability in order to survive, to develop and
might be no more than delimitations between different gradually to consolidate their independence in al1
administrative divisions or colonies al1 subject to the fields, has induced African States judiciously to
same sovereign. In that case, the application of the consent to the respecting of colonial frontiers, and to
principle of uti possidetis resulted in administrative take account of it in the interpretation of the
boundaries being transformed into international principle of self-determination of peoples.
frontiers in the full sense of the term. This is true both
of the States whch took shape in the regions of South [26] The applicability of uti possidetis in the present
America which were dependent on the Spanish Crown, case CANNOT be challenged merely because in 1960,
and of the States Parties to the present case, which took the year when Mali and Burkina Faso achieved
shape within the vast territories of French West Africa. independence, the Organization of African Unity which
was to proclaim this principle did NOT yet exist, and
Uti possidetis, as a principle which upgraded former the above-mentioned resolution calling for respect for
administrative delimitations, established during the the pre-existing frontiers dates only from 1964.[29]
colonial period, to international frontiers, is therefore a Since the territories of the two States had been part of
principle of a general kind which is logically connected French West Africa, the former boundary between
with this form of decolonization wherever it occurs. them became an international frontier only at the
moment
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the when
books bythey became
Henriksen, independent.
Akehurst, and Shaw The
75 line
24. The territorial boundaries which have to be which the Chamber is required to determine as being
respected may also derive from international frontiers that which existed in 1959-1960, was at that time
whch previously divided a colony of one State from a merely the administrative boundary dividing two
colony of another, or indeed a colonial territory from former French colonies, called territoires d'outre-mer
2019, EH 402) Jerusalem, 1961
between them became an international frontier only at fixes at 30 January 1959 for the Sudanese Republic and
the moment when they became independent. The line 28 February 1959 for Upper Volta.
which the Chamber is required to determine as being
that which existed in 1959-1960, was at that time They are requesting the Chamber to ascertain what, in
merely the administrative boundary dividing two the disputed area, was the frontier between the
former French colonies, called territoires d'outre-mer territoires d'outre-mer of Sudan and of Upper Volta as
from 1946 ; as such it had to be defined not according it existed in 1959-1960. Although it was said on a
to international law, but according to the French number of occasions, during the colonial period, that
legislation which was applicable to such territoires. there was no frontier which was fully determined by
direct or delegated legislation, the two Parties both
STATE SUCCESSION agree that when they becarne independent there was a
definite frontier. Both of them also accept that no
[30] By becorning independent, a new State acquires modification of the frontier took place between January
sovereignty with the territorial base and boundaries left 1959 and August 1960, or has taken place since.
to it by the colonial power. This is part of the ordinary
operation of the machinery of State succession. EFFECTIVITIES
International law - and consequently the principle of uti
possidetis - applies to the new State (as a State) not [63] Apart from the texts and maps listed above, the
with retroactive effect, but immediately and from that Parties have invoked in support of their respective
moment onwards. It applies to the State as it is, i.e., to contentions the "colonial effectivités", in other words,
the "photograph" of the territorial situation then the conduct of the administrative authorities as proof of
existing. The principle of utipossidetis freezes the the effective exercise of territorial jurisdiction in the
territorial title ; it stops the clock, but does riot put back region during the colonial period. For Burkina Faso, the
the hands. Hence international law does not effect any effectivités can support an existing title, whether written
renvoi to the law established by the colonizing State, or cartographical, but when their probative value has to
nor indeed to any legal rule unilaterally established by be assessed they must be systematically compared with
any State whatever ; French law - especially legislation the title in question ; in no circumstances can they be
enacted by France for its colonies and territoires substituted for the title.
d'outre-mer - may play a role not in itself (as if there
were a sort of continuum juris, a legal relay between For its part, Mali adrnits that in principle the effectivités
such law and international law), but only as one factual cannot be brought into operation where they are
element among others, or as evidence indicative of contrary to the text of a treaty, but argues that in a
what has been called the "colonial heritage", Le., the situation where there is no boundary described in
"photograph of the territory" at the critical date. conventional or legislative form, it is necessary to
ascertain the boundary by other methods, and an
THE DISPUTE investigation of the effectivités then becomes essential.
The role played in this case by such effectivités is
[33] For both Parties, the problem is to ascertain what complex, and the Chamber will have to weigh carefully
is the frontier which was inherited from the French the legal force of these in each particular instance. It
administration, that is, the frontier which existed at the must however state forthwith, in general terms, what
moment of independence. However, their views diverge legal relationship exists between such acts and the titles
somewhat as to the exact date to be chosen for that on which the implementation of the principle of uti
purpose. In the opinion of Burkina Faso, the date to be possiiletis is grounded. For this purpose, a distinction
taken into consideration is that of the accession of each must be drawn among several eventualities.
Party to independence : 20 June 1960 for Mali and 5
August 1960 for Burkina Faso. In Mali's opinion, it is Where the act corresponds exactly to law,
necessary to go back to the "last date on which the where effective administration is additional to the uti
French colonial authorities participated in the exercise possidetis juris, the only role of effectivité is to confirm
of jurisdiction for administrative organization,” a date the exercise of the right derived from a legal title.
which, for the reasons explained in its Memonal, Mali Where the act does not correspond to the law, where
fixes at 30 January 1959 for the Sudanese Republic and the territory whch is the subject of the dispute is
28Eunice
February 1959
Soriano for |Upper
Baliong Volta.
based on effectively
Atty. Pandi’s syllabus, discussions, slides, administered
and the books byAkehurst,
by Henriksen, a State and
other than 76
Shaw the one
possessing the legal title, preference should be given to
They are requesting the Chamber to ascertain the holder of the title. In the event that the effectivité
what, in the disputed area, was the frontier between the does not CO-exist with any legal title, it must
territoires d'outre-mer of Sudan and of Upper Volta as invariably be taken into consideration.
2019, EH 402) Jerusalem, 1961
the territory whch is the subject of the dispute is 4.3. INDIVIDUALS

effectively administered by a State other than the one JURISDICTION OF THE COURTS OF DANZIG,
possessing the legal title, preference should be given to ADVISORY OPINION
the holder of the title. In the event that the effectivité Pecuniary Claims of Danzig Railway Officials who
does not CO-exist with any legal title, it must have Passed into the Polish Service, against the
invariably be taken into consideration. Polish Railways Administration, PCIJ, 1928
Finally, there are cases where the legal title is not Whereas the Government of the Free City of
capable of showing exactly the territorial expanse to Danzig requested the High Commissioner on January
which it relates. The effectivité can then play an 12th, 1927, to give the following decision:
essential role in showing how the title is interpreted in
practice. (a) that railway employees who had
passed from the service of the Free
City into Polish service, were entitled
4.2. INTERNATIONAL ORGANIZATIONS to bring actions in respect of pecuniary
ART 2(A) ILC Draft Articles on the Responsibility of claims, even if these claims were based
International Organizations [2011], UN Doc. A/66/10 on the Danzig-Polish Agreement of
October 22nd, 1921 (Agreement
An organization established by treaty or other instrument concerning officials,
governed by international law and possessing its own Beamtenabkommen) or on the
international legal personality. International organizations declaration made under Article 1 of
include as members, in addition to States, other entities. this Agreement, which was accepted
by the Polish Railways Administration;
 They are created by treaty and must not be
confused with so called non-governmental (b) that Danzig Courts were entitled to
organizations (NGOs) that are private entities hear the actions referred to in (a);
without legal personality in international law
 Examples: United Nations (UN); North Atlantic (c) that, consequently, the Polish
Treaty Organization (NATO) Railways Administration was bound to
 In the Reparations case, the ICJ clarified that the accept the jurisdiction of the Danzig
UN is a legal subject under itnernational law Courts in disputes such as those
capable of possessing itnernational rights and mentioned in (a), and to enforce the
duties and with a capacity to protect its rights by judgments given by those Courts;
brinigng international claims for injury to its
The High Commissioner’s decision of April 18th 1927
personnel is as follows:
 The extent of an organization’s rights and
obligations depend on its “purposeses and [3] "Pecuniary claims of any kind, based on one of the
functions as specified or implied in its constitutent provisions which constitute the contract of service for
documents and developed in practice.” Danzig employees of the Polish Railways who have
(Jurisdiction of the European Commission of the passed into the service of the Polish Administration
Danube Between Galatz and Braila, Advisory under the Danzig-Polish Agreement of "October 22nd,
Opinion, 1927, PCIJ, Series B. No. 14, 64) 1921, and in particular claims in connection with
salaries, pensions, half-pay, and other grants under the
contract, may form the subject of an action in the
Danzig Courts (except for the reservation mentioned on
pages 5-6 [FN1]); the clauses of the Agreement itself,
and the declarations referred to in Article 1 of the
Agreement, are not to be regarded as provisions which
constitute the contract of service of the above-
mentioned employees, and therefore they cannot give
ground
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, forbooks
and the a personal actionAkehurst,
by Henriksen, to be brought in the77courts;
and Shaw
[10] undertake to negotiate a treaty between the Polish

Government and the Free City of Danzig, which shall
come into force at the same time as the establishment
2019, EH 402) Jerusalem, 1961
mentioned employees, and therefore they cannot give [37] The point in dispute amounts therefore to this:
ground for a personal action to be brought in the courts; Does the Beamtenabkommen, as it stands, form part of
the series of provisions governing the legal relationship
[10] undertake to negotiate a treaty between the Polish between the Polish Railways Administration and the
Government and the Free City of Danzig, which shall Danzig officials who have passed into its service
come into force at the same time as the establishment (contract of service)?
of the said Free City, with the following objects",
amongst others: "to ensure to Poland the control and The answer to this question depends upon the
administration of the .... whole railway system within intention of the contracting Parties. It may be readily
the Free City, except such street and other railways as admitted that, according to a well established principle
serve primarily the needs of the Free City . . . .". This of international law, the Beamten¬abkommen, being an
Convention was concluded in Paris between Poland and international agreement, cannot, as such, create direct
the Free, City on November 9th, 1920, and is called rights and obligations for private individuals. But it
hereafter the Convention of Paris. It contains, in cannot be disputed that the very object of an
Articles 20 and 21, provisions to the effect that the international agreement, according to the intention of
Danzig railways — apart from those already excepted the contracting Parties, may be the adoption by the
Parties of some [p18] definite rules creating individual
by the Treaty of Versailles and those specially serving
rights and obligations and enforceable by the national
the port — ". ... shall be controlled and administered by courts. That there is such an intention in the present
Poland, which shall receive the profits and defray the case can be established by reference to the terms of the
expenditure" Beamtenabkommen. The fact that the various
provisions were put in the form of an Abkommen is
[34] The contentions of the two Parties, resulting from corroborative, but not conclusive evidence as to the
their discussion before the Court, may be briefly character and legal effects of the instrument. The
summarized as follows: intention of the Parties, which is to be ascertained from
the contents of the Agreement, taking into
[35] Poland contends: (1) that the Beamtenabkommen, consideration the manner in which the Agreement has
being an international agreement, creates rights and been applied, is decisive. This principle of
obligations between the contracting Parties only; (2) interpretation should be applied by the Court in the
that the Beamtenabkommen, as such, and failing its present case.
incorporation into Polish national legislation, cannot
create direct rights or obligations for the individuals [38] The wording and general tenor of the
concerned; and (3) that if, in any respect, Poland has Beamtenabkommen show that its provisions are
not carried out her international obligations arising directly applicable as between the officials and the
under the Beamtenabkommen, she is responsible only Administration. According to its contents, the object of
to the Free City of Danzig. In other words, Poland the Beamtenabkommen is to create a special legal
contends that the legal relations between the Polish regime governing the relations between the Polish
Railways Administration and the former Danzig Railways Administration and the Danzig officials,
officials, who have become Polish officials, are workmen and employees who have passed into the
governed solely by Polish national law, which should permanent service of the Polish Administration.
be in conformity with the Beamtenabkommen.
That this special regime, according to the intention of
[36] On the other hand, Danzig contends that the the contracting Parties, is to be governed by the very
Beamtenabkommen, though an international agreement provisions of the Beamtenabkommen, may be seen for
in form, was intended by the contracting Parties to instance from an analysis of Article 4 of the
constitute part of the "series of provisions which Beamtenabkommen. This article (No. 2) stipulates that
establish the legal relationship between the Railways the Danzig officials are subject to the disciplinary laws
Administration and its employees" ("contract of of Poland. Further on, No. 5 gives Poland the right to
service") and that it is the substance rather than the frame her disciplinary laws differently from the
form of the instrument that determines its juridical corresponding provisions of the Beamtenabkommen
character. (subject, however, to the reservations concerning the
composition by Henriksen,
of the Akehurst,
disciplinary and Shaw
chambers 78use of
and the
[37] The point in dispute amounts therefore to the German language).
this: Does the Beamtenabkommen, as it stands, form
part of the series of provisions governing the legal [39] It is true that Article 9 of the
relationship between the Polish Railways Beamtenabkommen has been invoked by Poland in
2019, EH 402) Jerusalem, 1961
subject, however, to the reservations concerning the Th e provisions for the execution of the
composition of the disciplinary chambers and the use of High Commissioner's Decisions of
the German language). August 15th and September 5th, 1921,
in regard to the transfer of Danzig
[39] It is true that Article 9 of the Beamtenabkommen railway officials and workmen to the
has been invoked by Poland in order to show that the permanent service of the Polish State
Abkommen itself makes Polish national legislation Railways Administration, agreed upon
applicable. The article reads: between the Polish and Danzig
Govern¬ments on October 22nd,
"All matters affecting officials and 1921."
workmen transferred to th e Polish
service shall be dealt with by the Polish [47] This document leaves little room for doubt that the
State Railways Administration." Beamtenabkommen has been recognized by the Parties
as having come into full force and effect from
[40] In Poland's opinion, this article is a proof that the December 1st, 1921, the date of the taking over by
intention of the Parties was to leave it to Poland to Poland of the Danzig railways.
make all the regulations concerning the Danzig
Railway officials including regulations based on the [48] The Court therefore arrives at the conclusion that,
Beamtenabkommen, for which regulations she would in the intention of the contracting Parties, the relations
be responsible only to the Free City of Danzig. between the Polish Railways Administration and the
Danzig officials should be governed by the
[42] It follows that Article 9 of the Beamtenabkommen Beamtenabkommen, the provisions of which constitute
should not be construed in a manner which would make part of what the High Commissioner calls the "contract
the applicability of the provisions of the of service", and that, consequently, the Danzig officials
Beamtenabkommen depend on their incorporation into have, in accordance with the first part of the Decision, a
a Polish Regulation. right of action against the Polish Railways
[44] This conclusion is corroborated by the following Administration for the recovery of pecuniary claims
circumstance attending the actual execution of the based on the Beamten¬abkommen.
Beamtenabkommen.
LA GRAND CASE (Germany v. United Staes of
[45] Neither Party has disputed the fact that the
America) 27 June 2001, ICJ Rep 466
Beamtenabkommen has been actually put into effect in
accordance with the intention of the contracting Parties. FACTS: [13] Karl and Walter La Grand were German
On December 1st, 1921, the date of the taking over of nationals who took up permanent residence in the US
the Danzig railways by Poland, a memorandum but they never acquired US citizenship.
(Niederschrift) was signed by the Polish Railways
Administration and the Free City of Danzig, the [14] In 1982, they were arrested in the US on suspicion
relevant passages of which read as follows: of having been involved in an attempted armed bank
robbery in Arizona, in the course of which the bank
"Memorandum in regard to the transfer manager was murdered and another bank employee
of the Danzig railways to the Polish Railways seriously injured. They were tried and convicted of
Administration on December 1st, 1921. Both murder and sentenced to death
Parties recognize that, as from December 1st,
1921, the High Commissioner's Decisions of [15] At al1 material times, Germany as well as the
August 15th and September 5th, 1921, as also United States were parties to both the Vienna
the provisions of the Convention of Geneva of Convention on Consular Relations and the Optional
September 23rd. 1921, and, finally, the Protocol to that Convention. Article 36, paragraph 1 ( h
agreements enumerated below, shall enter into ) , of the Vienna Convention provides that :
full effect.
"if he so requests, the competent authorities of
(a) … the receiving State shall, without delay. inform the
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and thepost
consular books
ofbythe
Henriksen,
sendingAkehurst,
State if and Shawits consular
within 79
(b) Th e provisions for the execution of
the High Commissioner's Decisions of district, a national of that State is arrested or committed
August 15th and September 5th, 1921, to prison or to custody pending trial or is detained in
in regard to the transfer of Danzig any other manner. Any communication addressed to the
2019, EH 402) Jerusalem, 1961
5.2the receiving State shall, without delay. Germany maintains that the right to be informed of the
inform the consular post of the sending State if rights under Article 36, paragraph 1 ( b ) , of the
within its consular district, a national of that Vienna Convention, is an individual right of every
State is arrested or committed to prison or to national of a State party to the Convention who enters
custody pending trial or is detained in any other the territory of another State Party. It submits that this
manner. Any communication addressed to the view is supported by the ordinary meaning of the terms
consular post by the person arrested, in prison, of Article 36, paragraph 1 ( b ) , of the Vienna
custody or detention shall be forwarded by the Convention, since the last sentence of that provision
said authorities without delay. The said speaks of the rights" under this subparagraph of "the
authorities shall inform the person concerned person concerned", i.e., of the foreign national arrested
without delay of his rights under this or detained. Germany adds that the provision in Article
subparagraph." 36, paragraph 1 ( b ) , according to which it is for the
arrested person to decide whether consular notification
At the time of their conviction, the LaGrands were not is to be provided, has the effect of conferring an
informed, and had not informed the German consular individual right upon the foreign national concerned.
post of the LaGrand’s arrest in violation of the Vienna
Convention. In its view, the context of Article 36 supports this
conclusion since it relates to both the concerns of the
[23] This claim was rejected on the basis of the sending and receiving States and to those of
"procedural default" rule. According to the United individuals. According to Germany, the travaux
States, this rule: perpetoires of the Vienna Convention lend further
support to this interpretation. In addition, Germany
"is a federal rule that, before a state criminal submits that the "United Nations Declaration on the
defendant can obtain relief in federal court, the
human rights of individuals who are not nationals of
claim must be presented to a state court. If a the country in which they live", adopted by General
state defendant attempts to raise a new issue in Assembly resolution 401144 on 13 December 1985,
a federal hubeus corpus proceeding, the confirms the view that the right of access to the
defendant can only do so by showing cause and consulate of the home State, as well as the information
prejudice. Cause is an external impediment that on this right, constitute individual rights of foreign
prevents a defendant from raising a claim and nationals and are to beregarded as human rights of
prejudice must be obvious on its face. One aliens.
important purpose of this rule is to ensure that
the state courts have an opportunity to address [76] The United States contends, furthermore, that
issues going to the validity of state convictions rights of consular notification and access under the
before the federal courts intervene." Vienna Convention are rights of States, and not of
individuals, even though these rights may benefit
The United States District Court held that the LaGrands individuals by permitting States to offer them consular
had not shown an objective external factor that assistance. It maintains that the treatment due to
prevented them from raising the issue of the lack of individuals under the Convention is inextricably linked
consular notification earlier. to and derived from the right of the State, acting
VIOLATION OF INDIVIDUAL RIGHTS through its consular officer, to communicate with its
nationals, and does not constitute a fundamental right
[75] Germany further contends that "the breach of or a human right.
Article 36 by the United States did not only infringe
upon the rights of Germany as a State party to the The United States argues that the fact that Article 36 by
[Vienna] Convention but also entailed a violation of the its terms recognizes the rights of individuals does not
individual rights of the LaGrand brothers". Invoking its determine the nature of those rights or the remedies
right of diplomatic protection, Germany also seeks required under the Vienna Convention for breaches of
relief against the United States on this ground. that Article. It points out that Article 36 begins with the
words "[wlith a view to facilitating the exercise of
Germany maintains that the right to be consular functions relating to nationals of the sending
Eunice Soriano
informed of theBaliong
rights| under
based on Atty. Pandi’s
Article syllabus, discussions,
36, paragraph 1(b slides, and the
State", andbooks
thatbythis
Henriksen,
wordingAkehurst,
gives and
no Shaw
support80to the
) , of the Vienna Convention, is an individual right of notion that the rights and obligations enumerated in
every national of a State party to the Convention who paragraph 1 of that Article are intended to ensure that
enters the territory of another State Party. It submits nationals of the sending State have any particular
2019, EH 402) Jerusalem, 1961
consular functions relating to nationals of the sending  It is primarily under human rights law
State", and that this wording gives no support to the that international law bestows rights on
notion that the rights and obligations enumerated in individuals.
paragraph 1 of that Article are intended to ensure that  States also impose obligations under
nationals of the sending State have any particular international law on individuals.
rights or treatment in the context of a criminal Individual responsibility under
prosecution. The travauxs perpetoires of the Vienna internatiaonl law manifests itself in
Convention according to the United States do not relation to crimed deemed particularly
reflect a consensus that Article 36 was addressing serious by international society such as:
immutable individual rights, as opposed to individual piracy, hijacking of aircraft, crimes
rights derivative of the rights of States. against peace, crimes against humanity,
and war crimes.
RULING:
[77] The Court notes that Article 36, paragraph 1 ( b ) , V

spells out the obligations the receiving State has JURISDICTION
towards the detained person and the sending State. It
provides that, at the request of the detained person, the
receiving State must inform the consular post of the -It is the authority of a State to exert its influence and
sending State of the individual's detention "without power—in practice make, apply and enforce its rules—and
delay". It provides further that any communication by create an impact or consequence on individuals or
the detained person addressed to the consular post of property.
the sending State must be forwarded to it by authorities
of the receiving State "without delay". Significantly, Forms of Jurisdiction:
this subparagraph ends with the following language:
"The said authorities shall inform the person concerned 1) Jurisdiction to prescribe (ex. Criminalization of
without delay of his rights under this subparagraph" robbery)
(emphasis added). 2) Jurisdiction to enforce (ex: apprehension of the
robber)
Moreover, under Article 36, paragraph 1 (c), the 3) Jurisdiction to adjudicate—the right of a domestic
sending State's right to provide consular assistance to court to receive, treat, and determine cases referred
the detained person may not be exercised "if he to them (ex. Subsequent punishment of the
expressly opposes such action". The clarity of these convicted robber)
provisions viewed in their context, admits of no doubt.
It follows, as has been held on a number of occasions,  State sovereignty is the source of jurisdiction
that the Court must apply these as they stand. Based on  Role of international law is merely to limit the
the text of these provisions, the Court concludes that exercise of jurisdiction
Article 36, paragraph 1, creates individual rights,  There is NO comprehensive convention
which, by virtue of Article 1 of the Optional Protocol, regulating jurisdiction and the law is primarily
may be invoked in this Court by the national State of derived from state practice.
the detained person. These rights were violated in the
present case. 5.1. JURISDICTION TO PRESCRIBE
-relates to the authority of a state to apply its national laws
In this case, the ICJ concluded that the US violated its to any individual, property, or event no matter where they
obligations not only to Germany but also to two German may be located or occur.
nationals when it brought criminal proceedings against the
German nationals without informing them of their rights -states are only entitled to exercise their legislative
under the Vienna Convention on Consular Relations. jurisdiction when it is supported by a permissive principle
in international law
2019, EH 402) Jerusalem, 1961
-there must be a “connecting factor” between the acts or Territory—refers not only to land but also the territorial
the behaviour that the state wants to prescribe and the sea and the airspace above land and sea territory
legitimate interests of the state.
Q: Can a State extend its legislation to acts committed
International law permits a state to exercise its abroad that only have an economic effect on the State?
prescriptive jurisdiction with respect to:
Effects doctrine—any State may impose liabilities even
1. Conduct that wholly or substantially, takes place upon persons not within its allegiance, for conduct outside
within its territory its borders that has consequences within its borders which
2. Status of persons, or interests in things, present the state reprehends; and these liabilities other states will
within its territory ordinarily recognize
3. Conduct outside its territory that has or is intended
to have substantial effect within its territory  1993 Wood Pulp Case (European Court of
Justice)
Five Principles of the Power to Prescribe  1945 Alcoa Case (United States Court of
Appeals)
1) Territorial jurisdiction
2) Jurisdiction on the basis of nationality Objective Territorial Principle and Protective Principle
3) The passive personality principle
4) Protective jurisdiction United States v. Vasquez-Velaso
5) Universal jurisdiction
Brief Fact Summary. American DEA enforcement
5.1.1 TERRITORIAL JURISDICTION
acitivities resulted in losses to a drug cartel in billions
Territoriality principle—the most basic and of dollars. To retaliate, the cartel engaged in murdering
uncontroversial basis of jurisdiction; a state has DEA agents. An American novelist by name John
jurisdiction over all acts, whether criminal or not, Walker and Alberto Radelat, a photographer and U.S.
committed on its territory and over everyone located on the legal resident, were killed while writing a novel in
territory of that state; a state can legislate as it pleases on Mexico by Javier Vasquez-Velasco (D). who was a
whatever matter it so desires (subject to limitations member of a drug cartel in Guadalajara and several
imposed under human rights law) others. They were murdered in La Langosta restaurant
on the mistaken thought that they were agents. He was
1) Objective Territoriality—where completed; found guilty and on appeal, Vasquez-Velasco (D)
focuses on the effects of an offence and holds that argued that U.S. penal laws do not apply
a state will have jurisdiction over an offence that is extraterritorially.
completed on its territory even though some of the
elements of the offence took place abroad Synopsis of Rule of Law. Extraterritorial application
2) Subjective Territoriality—where commenced; of a penal statute to the murder of a U.S. citizen
stipulates that a state has jurisdiction over all acts mistaken for a federal agent is consistent with
that are completed abroad as long as they are principles of international law.
initiated or planned on the territory of the state in Facts. United States v. Felix Gutierrez, 940 F.2d 1200
question (9th Cir. 1991), cert, denied, 508 U.S. 906 (1993), a
case in which a defendant was convicted of kidnapping
Atty. Pandi: Why do you think it’s called objective and and murdering Enrique Camarena, an American Drug
subjective? Because in objective territoriality, since the Enforcement Agency (DEA) agent and Alfredo Zavala,
act is completed, you can clearly see that the State a DEA informant, was the basis for the appeal by the
exercises jurisdiction, the State which is directly affected defendant in this case, Javier Vasquez-Velaso (D). the
by the act. The other is called subjective because you’ll defendant was a member of a drug cartel in Guadalajara
never know who exercises jurisdiction because the act is and several other members, beat and killed John and
not yet completed; these are mere stages and the extent of Radelat. The argument of the U.S. government was that
the effect is yet to be determined. Javier and his three-co-defendants committed crimes to
further their position within the drug cartel in
Guadalajara.
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the booksHence, the Akehurst,
by Henriksen, murders and
Velaso
Shaw (D)
82 was
charged with were allegedly retaliatory actions against
a DEA crackdown. Velaso (D) was found guilty by a
jury for violent crimes in aid of a racketeering
enterprise in violation of 18 U.S.C. S. 1959. Velaso (D)
2019, EH 402) Jerusalem, 1961
further their position within the drug cartel in against the United States regardless of where it occurs.
Guadalajara. Hence, the murders Velaso (D) was [16] Extraterritorial application of a statute
charged with were allegedly retaliatory actions against (Sec. 1959) to the murder of a DEA agent is consistent
a DEA crackdown. Velaso (D) was found guilty by a with principles of international law, particularly the
jury for violent crimes in aid of a racketeering objective and protective principles...statutes that
enterprise in violation of 18 U.S.C. S. 1959. Velaso (D) prohibit the importation and distribution of controlled
argued that the U.S. penal laws do not apply substancecs in the US because these activities implicate
extraterritorially when he appealed. national security interests and create a detrimental
effect in the US.
Issue. Is the extraterritorial application of a penal [17] extraterritorial application to violent
statute to the murder of a U.S. citizen mistaken for a crimes associated with drug trafficking is reasonable
federal agent consistent with principles of international under international law. Because drug smuggling is a
law? serious and universally condemned offense, no conflict
is likely to be created by extraterritorial regulation of
Held. (Fletcher, J.) drug traffickers.
To determine whether a given statute should [18] Although, the murder was not to a DEA
have extraterritorial application, courts look to agent, extraterritorial application still applies...the
congressional intent. When faced with a criminal violent crime was directed against the UNITED
statute such as this, we may infer that extraterritorial STATES as a response of its enforcement
application is appropriate from “the nature of the efforts...performed to further the cartel’s drug
offenses and Congress’ other legislative efforts to smuggling schemens by intimidating DEA from
eliminate the type of crime involved.” continuing its activities...in this context, murder of
Where the locus of the conduct is not relevant to the American citizens has an EQUALLY DIRECT AND
end sought by the enactment of the statute, and the ADVERSE impact on our nation’s security interest in
statute prohibits conduct that obstructs the functioning combating the importation and trafficking of illegal
of the US government, it is reasonable to infer narcotics.
congressional intent to reach crimes committed abroad.
Yes. We also presume that Congress does NOT intent Discussion. The objectives territorial and protective
to violate principles of international law principles apply because the defendant in this case
[14] In general, international law recognizes murdered two U.S. citizens on the mistaken belief they
several principles whereby the exercise of were DEA agents and their murder might intimidate the
extraterritorial jurisdiction may be appropriate. These DEA and local police and drug agencies, who might
principles include otherwise cooperate with the DEA. Extraterritorial
a) the objective territorial principle under jurisdiction would have been difficult to apply if the
which jurisdiction is asserted over acts performed government had been unsuccessful in its argument that
outside the United States that produce detrimental the murders were committed as retaliation against the
effects within the United States and DEA because the case run on the defendant’s
b) the protective principle under which subjective belief.
jurisdiction is asserted over foreigners for an act
committed outside the United States that may impinge Active personality principle—States may extend their
on the territorial integrity, security or political laws on their own nationals regardless of where they are
independence of the United States. located.
However, exercise of jurisdiction on one of
these bases violates international law if such exercise is Substantial Effect
“unreasonable.”
[15] Because drug trafficiking by its nature HARTFORD FIRE INSURANCE CO. v.
involves foreign countries and because DEA agents CALIFORNIA US Supreme COURT
often work overseas, the murder of a DEA agent in The Sherman Act makes every contract,
retaliation for drug enforcement activities is a crime combination, or conspiracy in unreasonable restraint of
against the United States regardless of where it occurs. interstate or foreign commerce illegal. These cases
[16] Extraterritorial
Eunice Soriano Baliongapplication of aPandi’s
| based on Atty. statute (Sec. discussions,
syllabus, 1959) present
slides, questions
and the about theAkehurst,
books by Henriksen, application of that83Act to
and Shaw
to the murder of a DEA agent is consistent with the insurance industry, both here and abroad.
principles of international law, particularly the Plaintiffs: Both domestic and foreign
objective and protective principles...statutes that defendants violated the Sherman Act by engaging in
prohibit the importation and distribution of controlled various conspiracies to affect the American insurance
2019, EH 402) Jerusalem, 1961
interstate or foreign commerce illegal. These cases insurance ni sya under the McCarran Ferguson Act,
present questions about the application of that Act to pero “the claimants cannot claim the antitrust immunity
the insurance industry, both here and abroad. under the McCarran-Ferguson Act” because of the
Plaintiffs: Both domestic and foreign following reasons:
defendants violated the Sherman Act by engaging in
various conspiracies to affect the American insurance 1) The foreign reinsurers were
market. beyond the regulatory jurisdiction
Defendants: The McCarran-Ferguson Act of the States; because their
precludes application of the Sherman Act to the activities could not be regulated by
conduct alleged; the principle of international comity State law within the McCarran
requires the Court to refrain from exercising Ferguson Act, so they did NOT fall
jurisdiction over certain claims against it. within that law’s grant of
Court: The alleged conduct is NOT immunity. (So ang point jud sa CA
immunized from antitrust liability by the McCarran- kay HOY! FOREIGNER man ka!
Ferguson Act; assuming it applies, principle of Imong gi buhat kay di man na
international comity does NOT preclude the District regulated sa among balaod.
Court’s jurisdiction over the foreign conduct alleged. Therefore, di ka pwede mo invoke
sa among balaod to say that you
Facts:
are exempt, kay in the first place,
The conspiracy or conduct alleged involved
forcing certain primary insurers to change the terms of inapplicable na sa imo kay
their standard insurance policies to conform with the foreigner ka.)
policies the defendant insurers want to sell. 2) The domestic insurers who were
Insurance kaayo wala ko kasabot, basta ang regulated by State law, forfeited
point kay kani si ISO, naa syay gi enact nga new form their exemption when they
nga walay “retro-active date provision” nga naa sa old conspired with the nonexempt
form. So ang nahitabo, kani silang mga defendants nga foreign reinsurers. (Kay nag apil2
companies gi encourage nila ALL key actors in the man kas binuang ani nila, imbis
London reinsurance market, to withhold reinsurance for kay exempt unta ka kay covered
coverages unless ISO would incorporate the desired man kas balaod, na forfeit nimo
changes. So napugos si ISO. Nagpatawag og Executive imong exemption.)
Committee meeting (both domestic AND FOREIGN 3) Principle of International Comity
ha) to incorporate the new provisions na gusto aning does NOT bar the exercise of
mga companies. Sherman Act jurisdiction.
So mao dayon nga... So basically, naay two laws involved dani na
Nineteen States and many private plaintiffs medj ga conflict. ...
filed complaints alleging that the defendants- -violated The Sherman Act which provides that “every
the Sherman Act by engaging in various conspiracies contract, combination in the form of trust or otherwise,
aimed at forcing certain other primary insurers to or conspiracy in restraint of trade or commerce among
change the terms of their standard domestic commercial several States, or with foreign nations...is illegal.”
general liability insurance policies to conform with the And, the McCarran-Ferguson Act which
policies the defendant insurers wanted to sell. provides that regulation of the insurance industry is
Pero gi dismiss sa District Court ang case kay generally a matter for the States and that no act of
the conduct alleged fall daw “within the grant of Congress shall be construed to invalidate, impair, or
antitrust immunity in the McCarran-Ferguson Act supersede any law enacted by any State for the purpose
because it amounted to “the business of insurance,” and of regulating the business of insurance.
was “regulated by State law.” Pero here’s the caveat: Ang Sec2(b) sa
Pag appeal, The Court of Appeals reversed. McCarran nag ingun nga: “the Sherman Act APPLIES
Ni ingun ni si CA na yes, sakto man nga business of to the business of insurance to the extent that such
insurance ni sya under the McCarran Ferguson Act,
pero “the
Eunice claimants
Soriano cannot
Baliong | basedclaim the
on Atty. antitrust
Pandi’s immunity
syllabus, business
discussions, slides, and the books byisHenriksen,
NOT regulated
Akehurst,by
andState
Shaw Law,”
84 and
under the McCarran-Ferguson Act” because of the Sec 1012(b) nga nag ingun na: “nothing in the
following reasons: McCarran Act shall render the Sherman Act
INAPPLICABLE to ANY agreement to boycott,
4) The foreign reinsurers were coerce, or intimidate...” (So basically, if what is
2019, EH 402) Jerusalem, 1961
business is NOT regulated by State Law,” and Sec other factors in this case including London’s insurers
1012(b) nga nag ingun na: “nothing in the McCarran EXPRESS purpose to affect US commerce and the
Act shall render the Sherman Act INAPPLICABLE to effect it produced) OUTWEIGH the supposed conflict
ANY agreement to boycott, coerce, or intimidate...” (So and required the exercise of jurisdiction.
basically, if what is involved gani is boycott, coercion, But even assuming that a court MAY decline to
or intimidation, MU APPLY jud si Sherman Act! Kibali, exercise the Sherman Act jurisdiction over a foreign
diba si McCarran nag hatag man og immunity...pero if conduct, international comity would NOT counsel
imong gi buhat kay nang boycott, coerce, or intimidate against exercising jurisdiction in the circumstances
ka, kaning immunity nga e hatag unta ni McCarran sa alleged here. The only substantial question in this
imo, dili ma apply and ma liable ka under the Sherman litigation is whether in fact there is a true conflict
between domestic and foreign law. According to the
Act.)
Third Restatement on Foreign Relation Law (403) NO
So given those two laws to be prosecuted,
CONFLICT exists “where a person subject to
kailangan ma prove na indeed ang gi buhat sa
regulation by two states CAN comply with the laws of
defendants boycott, coercion, intimidation, etc. AND
both.” Wherefore, judgment of CA is affirmed in part
YES!!! Ni ingun si CA nga boycott jud to! Taas kaayo
and reversed in part, cases are remanded for further
sya checka explain2 diha what constitutes boycott,
proceedings. Consistent with this opinion.
basta ang point ra jud kay BECAUSE boycott man diay
ni...the exemption under the McCArran Act will NOT
apply and the Sherman Act is operative in this case. WOOD PULP CASE (AHLSTROM v.
Established na noh, unsay law mu apply. Pero COMMISSION)
here’s the problem: What about those foreign EUROPEAN COURT OF JUSTICE
companies? Walay problema ang domestic companies 27 September 1988
kay ma liable jud sila under this US law, pero what
about those foreign companies? Will the Court have Facts: Wood pulp producers brought an action under
jurisdiction over foreign companies for violation of the ART 173(2) of the EEC Treaty for the annulment of a
Sherman Act, which is a domestic law? 1984 Decision by the Commission of the European
The allegation is this: London reinsurers, by a Communities which stated that they had infringed ART
conspiracy with domestic resinsurers, conspired to limit 85 of the Treaty and imposed fines on them.
the coverage of seepage, pollution, and property
contamination risks in North America, thereby Allegedly, there were violations of: (1)
eliminating such coverage in the State of California. concertation between those producers on prices
London says this: Court should decline announced each quarter to customers in the Community
jurisdiction under the PRINCIPLE OF and on actual transaction prices charged to such
INTERNATIONAL COMITY. Applying the act to customers; (2) price recommendations addressed to its
them would conflict with British Law because their members by the Pulp, Paper and Paperboard Export
conduct is perfectly consistent with British law and Association of the United States (formerly named Kraft
policy. Export Association and hereinafter referred to as
'KEA'), an association of a number of United States
RULING: The Sherman Act applies to FOREIGN producers; and (3 the exchange of individualized data
CONDUCT that was meant to produce and did in fact concerning prices with certain other wood pulp
produce some substantial effect in the United States. producers within the framework of the Research and
The London reinsurers engaged in unlawful Information Centre for the European Pulp and Paper
conspiracies to affect the market for insurance in the Industry which is run by the trust company Fides of
United States . Switzerland.
The Court agrees that application of antitrust
Commission: The effect of the agreements and
laws to the London reinsurance market would lead to
practices on prices announced and/or charged to
significant conflict with English law and policy, and
customers and on resale of pulp within the EEC was
that such conflict, unless outweighed by other factors,
not only substantial but intended, and was the primary
would itself be reason to decline jurisdiction. BUT
and direct result of the agreements and practices.
other factors in this case, (including London insurer’s
Eunice Soriano
EXPRESS Baliongto
purpose | based on Atty.
affect US Pandi’s syllabus,
commerce anddiscussions,
the slides, and the books by Henriksen, Akehurst, and Shaw 85
Applicants:
effect it produced) OUTWEIGH the supposed conflict
and required the exercise of jurisdiction. 1) The Commission misconstrued the territorial
But even assuming that a court MAY decline to scope of ART 85. Court did NOT adopt the
2019, EH 402) Jerusalem, 1961
and direct result of the agreements and practices. Canada. Kung kaning mga wood pulp producers mu
sell directly sa purchasers sa Community and engage in
Applicants: price competition, naay mahitabo na competition within
the common market
5) The Commission misconstrued the territorial
scope of ART 85. Court did NOT adopt the [13] so it follows that if these producers concert on the
effects doctrine but empahsized that the case prices to be charged to their customers, meaning mag
involved conduct restricting competition within coordinate sila sa prices, they are taking part in
the common market because of activities of concertation which has the object and effect of
subsidiaries imputed to parent companies. restricting competition within the meaning of ART 85
6) Even if there is a basis for applying ART 85, of the Treaty (murag kibali na monopolize ang price.
the action of applying the rule interpreted that Competition is good to lessen the price)
way would be contrary to public international
law which precludes any claim by the Ruling:
Community to regulate conduct restricting
competition adopted outside the territory of the [17] The producers in this case implemented their
Community merely by reason of the economic pricing agreement within the common market.
repercussions which that conduct produces Immaterial whether they had recourse to subsidiaries,
within the Community. agents, or sub-agents or branches within the
7) Application breaches the principle of non- Community.
interference. Application of ART 85 harmed
the interest of the US in promoting exports by [18] Accordingly, the Commuity’s jurisdiction to
US undertakings as recognized in the Webb apply its competition rules to such conduct is covered
Pomerene Act of 1918 under which applicant is by the territoriality principle as universally recognized
exempt from UN anti-trust laws. in public international law.
8) By imposing fines and making reduction on [19] as to the alleged violation of the principle of non-
those fines conditional on the producers giving interference, it can only apply where two States have
undertakings as to their future conduct, the jurisdiction to lay down and enforce rules and the effect
Commission infringed Canada’s sovereignty of those rules is that a person finds himself subject to
and breached principle of international comity. contradictory orders as to the conduct he must adopt,
In sum, ang contention jud nila ani, dili daw compatible each State is obliged to exercise its jurisdiction with
ang decision sa Commission with IL ka ang pag apply moderation.
sa competition rules kay didto man sa economic [20] There is NOT in this case, any contradiction
repercussion within the common market bisag and between the conduct required by the US and that
conduct restricting competition was done outside the required by the Community since the Webb Pomerene
Community. Act merely exempts the conclusion of export cartels
So unsa diay naa aning ART 85 of the Treaty? from the application of US anti-trust laws but does
Ngano issue ni sya? NOT require such cartels to be concluded.
[11] the provision prohibits all agreements between [23] Commission’s decision is NOT contrary to ART
undertakings and concerted practices which may affect 85
trade between Member States and which have as their
object or effect, the restriction of competition within 5.1.2. JURISDICTION ON THE BASIS OF
the common market. NATIONALITY
Unsay context ani? Active personality principle –States may extend their
laws to their own nationals regardless of where they are
[12] ang source kuno sa wood pulp kay outside the located.
Community. Gikan sya sa US, Sweden, Finland, and
Canada. Kung kaning mga wood pulp producers mu
Eunice
sell Soriano
directly sa Baliong | based
purchasers saonCommunity
Atty. Pandi’s and
syllabus, discussions,
engage in slides, and the books by Henriksen, Akehurst, and Shaw 86
price competition, naay mahitabo na competition within
the common market
[13] so it follows that if these producers concert on the

2019, EH 402) Jerusalem, 1961
States are generally free to decide who they consider to be "The Maritime Safety Committee shall consist
their “nationals” andunder what circumstances an of fourteen Members elected by the Assembly
individual qualifies for citizenship. from the Members, governments of those
nations having an important interest in
CONSTITUTION OF THE MARITIME SAFETY maritime safety, of which not less than eight
COMMITTEE OF THE INTER- shall be the largest ship-owning nations, and
GOVERNMENTAL MARITIME the remainder shall be elected so as to ensure
ORGANIZATION, ADVISORY OPINION (1960) adequate representation of Members,
ICJ REP 150 govemments of other nations with an important
interest in maritime safety, such as nations
QUESTION/ISSUE: Is the Maritime Safety interested in the supply of large numbers of
Committee of the Inter-Governmental Maritime crews or in the carriage of large numbers of
Consultative Organization, which was elected on 15 berthed and unberthed passengers, and of major
January 1959, constituted in accordance with the geographical areas."
Convention for the Establishment of the Organization?
Circumstances that led to this dispute
The question submitted to the Court in the Request for
an Advisory Opinion, cast though in its general form, is The Assembly began its consideration of the election of
directed to a particular case, and may be formulated in members of the Maritime Safety Committee on 14
the following manner: January 1959. It had before it a working paper prepared
by the Secretary-General of the Organization, headed
Has the Assembly, in not electing Liberia and Panama as follows:
to the Maritime Safety Committee, exercised its
eletoral power in a manner in accordance with the "Election of Members of the Maritime Safety
provisions of Article 28(a) of the Convention of 6 Committee, as provided in Article 28 of the
March 1948 for the Establishment of the Inter- Convention. Merchant fleet of the IMCO Members
Governmental Maritime Consultative Organization? according to the Lloyd's Register of Shipping Statistical
tables 1958."
FACTS:
Thereunder were set out, in descending order of total
What is the Convention for the Establishment of the gross registered tonnage, the names of Members with
Inter-Governmental Maritime Consultative the figures of their registered tonnage. On this list
Organization? Liberia was third and Panama eighth.
• It establishes a body known as the Intergovernmental UK in a draft resolution resolves that:
Maritime Consultative Organization.
1. That a separate vote shall be taken for each of the
• Its purposes are set out in Article I of the Convention, eight places on the Committee;
the most important of which is concerned with
maritime safety and efficiency of navigation. 2. That the voting shall be in order in which the nations
appear in the Secretary-General’s list, and
• The Organization consists of: 1) Assembly, 2)
Council 3) Maritime Safety Committee 3. That those eight nations which first receive a
(IMPORTANT) and such subsidiary organs as the majority of votes in favour shall be declared elected.”
Organization may at any time consider necessary; 4)
Secretariat Liberia in wanted to amend the draft resolution
submitting that Article 28(a) does not talk about an
The composition of the Maritime Safety Committee “election” in the usual sense saying that once those
and the mode of designating its Members are governed eight nations had been determined (by reference to the
by Article 28(a) which reads as follows: figures for gross tonnage as they appeared in Lloyd’s
Register of Shipping at the date of the election), the
Eunice Soriano Baliong | based

Assembly was bound to elect them. US backed this
Members, governments ofonthose
Atty. Pandi’s
nationssyllabus,
havingdiscussions,
an slides, and the books by Henriksen, Akehurst, and Shaw 87
way of interpreting Article 28(a).
important interest in maritime safety, of which not less
than eight shall be the largest ship-owning nations, and Side Note, FYI: The Secretary-General’s list and the
the remainder shall be elected so as to ensure adequate Lloyd’s Register of Shipping contains the same figures.
2019, EH 402) Jerusalem, 1961
Assembly was bound to elect them. US backed this owning nations. In no circumstances should the two
way of interpreting Article 28(a). nations whose combined registered tonnage represented
15% of the active fleet of the entire world be excluded
Side Note, FYI: The Secretary-General’s list and the from membership of the Committee.
Lloyd’s Register of Shipping contains the same figures.
There was no challenge on either’s correctness. RULING: It has been contended before the Court that
the Assembly was entitled to refuse to elect Liberia and
Assembly adopted UK draft resolution. The President Panama, by virtue of a DISCRETION claimed to be
asked the Assembly to vote on the eight countries to be vested in it under Article 28 (a). The substance of the
elected under Art. 28 (a) country by country in the argument is as follows: The Assembly is vested with a
order given in the Lloyd’s Register of Shipping discretionary power to determine which Members of
Statistical Tables of 1958. Liberia and Panama failed to the Organization have "an important interest in
be elected. maritime safety" and consequently in discharging its
duty to elect the eight largest shipowning nations, it is
Debates that took place prior to the election revealed a empowered to exclude as unqualified for election those
wide divergence of views on the relevant requirements nations that in its judgment do not have such an
of Article 28 (a).
interest. Furthermore, it was submitted that this
Contention (UK): …according to the Convention discretionary power extended also to the determination
those eight places should be allotted to the largest ship- of which nations were or were not "the largest ship-
owning nations, but that did not necessarily mean those owning nations".
countries whose fleets represented the largest gross However, the court said that the use of the word “shall”
registered tonnage. The names and nationalities of the in the phrase “of which not less than eight SHALL be
owners or shareholders of the shipping companies the largest ship-owning nations” gives it an obligatory
should not be taken into account in that connection, as designation (meaning mandatory). This means that the
that would introduce an unnecessarily complicated word “election” which connotes the Assembly’s
criterion. (Emphasis on this because this is the one discretion, would be incompatible with that phrase.
related to our topic) Basically the court is saying that you cannot say that
Further Contention (Netherlands): the Concept of eight of members SHALL be the largest ship-owning
the largest ship-owning nations was not necessarily companies but still hold an election for them to become
identical with that of the nations having the largest part of that Committee. The word “SHALL” which
registered tonnage; on the contrary, a country’s connotes mandatoriness is incompatible with the word
registered tonnage might in no way reflect its actual “ELECT” which connotes discretion. Therefore the
importance as a ship-owning nation. (This as well) word “elect” should apply to of the 14 positions
excluding the eight which again, SHAAAAALLLLL be
…members to be elected to the Maritime Safety the largest ship-owning nations (meaning the remainder
Committee “on the strength of their tonnage” should be six are only the ones that will be elected). In fact if you
those nations which were in a position to make a look at the provision again the word “elect” was used
contribution to the work of the Committee through their again in the phrase “and the remainder shall be
knowledge and experience in the field of maritime elected”. So there are two directives here: “Shall be
safety, which requirement Liberia and Panama did not elected” which refers to the remainder (six) and “shall
fulfil. be the largest ship-owning nations” which refers to the
eight.
Counter Contention (US): Article 28 stipulated that
no less than eight should be the “largest ship-owning Furthermore, the argument that “largest ship-owning
nations” and not merely ‘large ship-owning nations” does not mean that they have “an important
nations”…they should be elected AUTOMATICALLY. interest in maritime safety” was not accepted by the
Court. This argument would mean that the Assembly
…“expert knowledge and experience” was a criterion would have the discretion to determine whether a
separate from that of status as one of the largest ship- country has “an important interest in maritime safety”
owning nations. In no circumstances should the two regardless of the size of its tonnage or any other
Eunice Soriano
nations Baliong | based
whose combined registered tonnage
on Atty. Pandi’s represented
syllabus, discussions, slides, and the books
qualification. by Henriksen,
According Akehurst,
to the Court,and Shaw
this 88
interpretation
15% of the active fleet of the entire world be excluded has the effect of rendering superfluous the greater part
from membership of the Committee. of Article 28(a), and erecting the discretion of the
Assembly as the supreme rule for the constitution of the
RULING: Maritime Safety Committee.
2019, EH 402) Jerusalem, 1961
regardless of the size of its tonnage or any other Assembly would be free "to look at the realities" on the
qualification. According to the Court, this interpretation basis of "the true situation", whatever in its opinion and
has the effect of rendering superfluous the greater part that of its individual members these might be
of Article 28(a), and erecting the discretion of the considered to be. It would be bound by no ascertainable
Assembly as the supreme rule for the constitution of the criteria. Its remembers in casting their votes would be
Maritime Safety Committee. entitled to have regard to any considerations they might
think relevant.
The underlying principle of Article 28 (a) is that the
largest ship-owning nations shall be in predominance Basically the court is saying that there should be an
on the Committee. No interpretation of the Article objective basis not just the discretion of the assembly of
which is not consonant with this pnnciple is admissible. what the phrase “largest ship-owning nations” mean.
With that aside the Court proceeds to determine this
It was to express this principle that the words "of which objective basis…
not less than eight shall be the largest ship-owning
nations" were written into the Article. These words There appear to be but two meanings which could
cannot be construed as if they read "of which not less demand serious consideration: either the words refer to
than eight shall represent (or be representative of) the the tonnage beneficially owned by the nationals of a
largest ship-owning nations". Whichever were the State or they refer to the registered tonnage of a flag
largest ship-owning nations they were necessarily to be State regardless of its private or State ownership. The
appointed to the Committee; that they each possessed latter is the position of Liberia and the US.
an important interest in maritime safety was accepted
as axiomatic; it was inherent in their status of the eight If Article 28 (a) were intended to confer upon the
largest ship-owning nations. Assembly such an authority, enabling it to choose the
eight largest ship-owning nations, uncontrolled by any
Refer to pp 16-19 for the history of this provision. objective test of any kind, whetiler it be that of tonnage
registration or ownership by nationals or any other, the
RELEVANT TO 5.1.2. JURISDICTION ON THE mandatory words "not less than eight shall be the
BASIS OF NATIONALITY: largest ship-owning nations" would be left without
significance. To givc to the Article such a construction
The Court must now consider the meaning of the words would mean that the structure built into the Article to
"the largest ship-owning nations". ensure the predominance on the Committee of "the"
In the opinion of the Netherlands Government, set out largest ship-owning nations in the ratio of at least eight
in its Written Statement, "the term 'ship-owning to six would be undermined and would collapse. The
nations' is ... not suitable for legal analysis; it cannot be Court is unable to accept an interpretation which would
decomposed into elements which have any specific have such a result.
legal connotation ..: even the fact that the merchant An examination of certain Articles of the Convention
fleet, flying the flag of a particular State, is owned by and the actual practice which was followed in giving
nationals of that State cannot in itself qualify that State effect to them throws some light on the Court's
as a shipowning nation". Registration and the right to consideration of the question.
fly the flag and national ownership of merchant vessels
"may, together with other factors", it contended, "be Article 60 providing for entry into force of the
relevant for the determination by the Assembly whether Convention, and which follows the form to be found in
or not a State can be considered as a 'ship-owning a number of multilateral treaties dealing with safety and
nation' ", but "they do not either separately or jointly working conditions at sea, States:
impress upon a State the quality required ...".
"The present Convention shall enter into force on the
This submission asserts an authority in the Assembly to date when 21 States of which seven shall each have a
appraise which nations are ship-owning nations and total tonnage of not less than ~,ooo,ooog ross tons of
which are the largest among them, the words "the shipping, have become parties to the Convention in
largest ship-owning nations" providing but a guide. The accordance with Article 57."
Assembly would be free "to look at the realities" on the
Eunice
basis of Soriano Baliong
"the true | based on
situation", Atty. Pandi’s
whatever in itssyllabus,
opinion discussions,
and slides, and the books by Henriksen, Akehurst, and Shaw 89
that of its individual members these might be
considered to be. It would be bound by no ascertainable The required conditions having been fulfilled on 17
criteria. Its remembers in casting their votes would be March 1958, the Convention came into force on that
day. As is stated by Legal Counsel of the United
2019, EH 402) Jerusalem, 1961
The required conditions having been fulfilled on 17 they recommended the election of Japan…”
March 1958, the Convention came into force on that
day. As is stated by Legal Counsel of the United And where did they base the size of Japan and Italy’s
Nations in a letter of IO April 1959: tonnage? You guessed it! The Lloyd’s Register of
Shipping for 1958. Reference to this alone was enough
"In so far as concerns the requirement of Article 60 that Japan and Italy to be elected. There was no
seven among the States becoming parties should 'each qualification on whether such tonnages was State-
have a total tonnage' of the stated amount, no question owned or privately owned.
was raised, and no consideration was given, as to
whether the total tonnage figure of any State then a The apportionment of the expenses of the Organization
party, as indicated by Lloyd's Register, should be amongst its Members under the provisions of Article 41
altered for any reason bearing upon the ownership of of the Convention is also significant. Under Resolution
siich tonnage." A.zo(1) adopted by the Assembly of the Organization
on 19 January 1959, the assessment on each Member
Article 60 has a special significancé. In the English text State was principally (AGAIIIN)"determined by its
this Article speaks of certain States which ''have" a total respective GROSS REGISTERED TONNAGE as
tonnage, whilst in -Article 28 (a) the reference is to shown in the latest edition of Lloyd's Register of
nations "owning" ships. Shipping". Those States whose registered tonnages
were the largest paid the largest assessments.
In the French and Spanish texts however, which texts
are equally authentic, the same verb "to own" or "to Based on this comparisons between Art 28(a), Art. 60,
possess" is used in each Article. There can be, and and Art. 41, reference to registered tonnage as is
indeed there is, no dispute that whether the reference in enough basis in construing “ship-owning nations”.
Article 60 is to States which "have" the specified There is no need to distinguish those that are State-
tonnage-as in the English text-or whether it is to States owned from those that are privately owned.
which "own" or "possess" that specified tonnage-as in
the French and Spanish texts-that reference is to In particular it is unlikely that it was contemplated that
registered tonnage and registered tonnage only and the test should be the nationality of stock-holders and
provides an automatic criterion to determine the point of others having beneficial interests in every merchant
of time at which the Convention comes into force. ship; facts which would be difficult to catalogue, to
ascertain and to measure. To take into account the
The practice followed by the Assembly in relation to names and nationalities of the owners or shareholders
other Articles reveals the reliance placed upon of shipping companies would, to adopt the words of the
registered tonnage. representative of the United Kingdom during the debate
which preceded the election, "introduce an
Thus in implementing Article 17 (c) of the Convention, unnecessarily complicated criterion" (DAAAMN
which provides that two members of the Council "shall HAHAHA). Such a method of evaluating the ship-
be elected by the Assembly from among the owning rank of a country is neither practical nor
governments of nations having a substantial interest in certain. Moreover, it finds no basis in international
providing international shipping services, the Assembly practice, the language of international jurisprudence, in
elected Japan and Italy. This was done after it had been maritime terminology, in international conventions
reported to the Assembly that the representatives of the dealing with safety at sea or in the practice followed by
Members of the Council who were required under the the Organization itself in carrying out the Convention.
terms of Article 18 to make their recommendation to On the other hand, the criterion of registered tonnage is
the Assembly had practical, certain and capable of easy application.
"therefore examined the claims of countries having a The interpretation the Court gives to Article 28 (a) is
substantial interest in providing international shipping consistent with the general purpose of the Convention
services. They did not feel that they should propose to and the special functions of the Maritime Safety
the Assembly a long list of candidates, as two countries Committee. The Organization established
clearly surpassed the others in size of their tonnage;
they recommended the election of Japan…” by the Convention is a consultative one only, and the
Maritime Safety Committee is the body which90has the
And where did they base the size of Japan and Italy’s duty to consider matters within the scope of the
tonnage? You guessed it! The Lloyd’s Register of Organization and of recommending through the
Shipping for 1958. Reference to this alone was enough Council and the Assembly to Member States, proposals
2019, EH 402) Jerusalem, 1961
by the Convention is a consultative one only, and the Similar legislation was introduced at the same time in
Maritime Safety Committee is the body which has the morocco (French Zone).
duty to consider matters within the scope of the
Organization and of recommending through the The British Ambassador in Paris protested to the
Council and the Assembly to Member States, proposals French Government against the application to British
for maritime regulation. In order effectively to carry out subjects of the decrees promulgated in Tunis, and also
these recommendations and to promote maritime safety stated that his Government was unable to recognize that
in its numerous and varied aspects, THE the decrees put into force in the French Zone of
COOPERATION OF THOSE STATES WHO morocco were applicable to persons entitled to British
EXERCISE JURISDICTION OVER A LARGE nationality.
PORTION OF THE WORLD’S TONNAGE IS
ESSENTIAL. The Court cannot subscribe to an The British Government submit the dispute to the
interpretation of "largest ship-owning nations" in Council of the League of Nations, relying on Articles
Article 28 (a) which is out of harmony with the 13 and 15 of the Covenant (List of disputes league of
purposes of the Convention and which would empower nations can receive).
the Assembly to refuse Membership of the Maritime
Safety Committee to a State, regardless of the fact that In the end, the question was not one for consideration
it ranks among the first eight in terms of registered by the Council of the League of Nations, because of the
tonnage. reservation made in paragraph 8 of Article 15 of the
Covenant of league of nations concerning questions
which by international law are solely within the
NATIONALITY DECREES IN TUNIS AND domestic jurisdiction of one Party.
MOROCCO ADVISORY OPINION, 1923, PCIJ,
(Series B, No. 4) “8. If the dispute between the parties is claimed by one
of them, and is found by the Council, to arise out of a
KEYWORD: What if I don’t want to be French? I matter which by international law is solely within the
want to be British. Buot ka? domestic jurisdiction of that party, the Council shall so
report, and shall make no recommendation as to its
TOPIC: Council of League of Nations—Domestic settlement.” ( Due to the wide competence possessed
jurisdiction of a Party to a dispute (Art. 15, para. 8, of by the league of nations, the covenant contains an
Covenant)—Questions of nationality are in principle of express reservation protecting the independence of
domestic concern—But a question which involves the states. which is found here^ because the League’s
interpretation of international instruments is not of interest in being able to make such recommendations
domestic concern that directly affect the internal affairs of a country with
a view of the maintenance of peace must, at a given
FACTS: A Decree was promulgated in Tunis: point, give way to the equally essential interest of the
“With the exception of citizens, subjects or nationals of independence in matters which international law
the Protecting Power (other than our own subjects) [PS recognizes to be solely within the country’s
the Protecting Power is France], every person born in jurisdiction)
the territory of our Kingdom of parents one of whom
was also born there, is a Tunisian, subject to the France relied on par 8 of Art 15 while Britain said there
provisions of conventions or treaties binding the was jurisdiction relying on par 1 of Art 15 of the
Tunisian Government.” covenant:
On the same date, the President of the French Republic “1. If there should arise between Members of the
issued a Decree: League any dispute likely to lead to a rupture, which is
“Every person born in the Regency of Tunis of parents not submitted to arbitration or judicial settlement in
of whom one, justiciable as a foreigner in the French accordance with Article 13, the Members of the League
Courts of the Protectorate, was also born there, is agree that they will submit the matter to the Council.
French.” Any party to the dispute may effect such submission by
giving notice of the existence of the dispute to the
Similar legislation was introduced at the same time in Secretary-General, who will make all necessary
Eunice Soriano Baliong | based
morocco on Atty. Pandi’s syllabus,Zone).
(French discussions, slides, and the books by Henriksen, Akehurst, and Shaw 91
arrangements for a full investigation and consideration
thereof”
The British Ambassador in Paris protested to the
French Government against the application to British In the end, the Parties came to an agreement to request
2019, EH 402) Jerusalem, 1961
giving notice of the existence of the dispute to the public powers exercised by the protecting
Secretary-General, who will make all necessary State (france) may be equivalent to full
arrangements for a full investigation and consideration sovereignty as evidenced by multiple
thereof” treaties between france and tunis and
morocco (whats important is that these
In the end, the Parties came to an agreement to request treaties establish the Protectorate) – Court:
the Court to give an advisory opinion on this question rights arising out of Treaties are of
of jurisdiction, viz. whether the dispute is or is not, by international law so therefore it is not
international law, solely a matter of domestic one of sole domestic jurisdiction.
jurisdiction. (ISSUE)
2. Britain’s Contention: Treaties (which were
for an indefinite period/in perpertuity) between
RULING: NO, the dispute is not solely a matter of Britain and Morocco and Tunis where by virtue
domestic jurisdiction. (So court has jurisdiction) of these treaties British subjects would enjoy a
The Court states that the question before it is whether measure of extraterritoriality incompatible with
the dispute (nationality) relates to a matter which, by the imposition of another nationality. (counter
international law, is solely within the domestic claim of France, the period has lapsed due to
jurisdiction of France, and goes on to observe that as it the principle of rebus sic stantibus) – Court:
has to give an opinion upon the nature of the dispute not possible to make any pronouncement
and not upon the merits, nothing in the opinion can be
without applying international law
interpreted as indicating a view as regards the merits of concerning the duration of the validity of
the dispute between the Parties.
treaties. Therefore, it is not one of sole
The Court next observes that, according to the terms of domestic jurisdiction.
the Request itself, the question must be read in the light
of paragraph 8 of Article 15 of the Covenant; and to 3. Great Britain Contention: Most favored nation
this end it proceeds to define the meaning of the clause and notes of Exchange between Britain
expression “solely within the domestic jurisdiction” and France. - Court: needs international law
therein contained. to be resolved so not one of sole domestic
jurisdiction.
In the view of the Court, the exclusive jurisdiction of
States embraces matters which are not in principle 4. French contention: Great Britain had formally
regulated by international law. (Meaning General rule: recognized (through the Anglo-French
disputes on nationality is not regulated by international Arrangement) France’s right to legislate as to
law but domestic law) The extent of this jurisdiction, the nationality of persons in Tunis under the
includes, in principle, questions of nationality, varies same conditions as in France itself. – Court:
with the development of international relations not one of sole domestic jurisdiction. (Basta
(Exception: the right of a state to use it discretion is based on my understanding if you need
restricted by obligations which it may have undertaken international law to resolve then it can’t be of
towards other states. i.e. Treaties). sole domestic jurisdiction)
4 Arguments from the party which need to be decided CONCLUSION: The Court, without going into the
if there is sole domestic jursdition: merits of the dispute and confining itself to
consideration of the facts above referred to, arrives at
1. France’s contention: France enjoys in the conclusion that the dispute in question does not
Tunis and morocco the same exclusive relate to a matter which, by international law, is solely
right to legislate on questions of nationality within the domestic jurisdiction of France; the Council
as in France itself, and that the local therefore is competent to deal with the dispute laid
sovereignty of the protected State (Tunis before it by Great Britain regarding the nationality
and Morocco) in conjunction with the decrees in Tunis and Morocco.
public powers exercised by the protecting
State (france) (just in case you want to know) AFTER THE
Eunice Soriano Baliong | basedmay bePandi’s
on Atty. equivalent
syllabus,to full
sovereignty as evidenced by multiple ADVISORY OPINION
treaties between france and tunis and Following the declaration and after negotiations
morocco (whats important is that these between the two Governments, an exchange of notes
treaties establish the Protectorate) – Court: took place by which His Britannic majesty’s
2019, EH 402) Jerusalem, 1961
(just in case you want to know) AFTER THE

ADVISORY OPINION relating to Mr. Nottebohm’s nationality. It was the
Following the declaration and after negotiations bond of nationality between a State and an individual
between the two Governments, an exchange of notes which alone conferred upon the State the right to put
took place by which His Britannic majesty’s forward an international claim on his behalf. Mr.
Government declared that it was prepared to proceed Nottebohm, who was then a German national, had
no further with the case as regards Tunis, on receipt of settled in Guatemala in 1905 and continued to reside
an undertaking by the French Government that there. In October 1939 — after the beginning of the
arrangements would be made by them, before January Second World War — while on a visit to Europe, he
1st, 1924, whereby a British national born in Tunis of a obtained Liechtenstein nationality and returned to
British national himself born there should be entitled to Guatemala in 1940, where he resumed his former
decline French nationality; this right, however, was not business activities until his removal as a result of war
to extend to succeeding generations. It was also measures in 1943. On the international plane, the grant
stipulated in these notes that a child born in Tunis of a of nationality is entitled to recognition by other States
British subject himself born elsewhere than in Tunis only if it represents a genuine connection between the
would not be claimed as a French national by the individual and the State granting its nationality. Mr.
French Government, and that French nationality would Nottebohm’s nationality, however, was not based on
not be imposed on any British subject born in Tunis any genuine prior link with Liechtenstein and the sole
before November 8th, 1921,without giving such person object of his naturalization was to enable him to acquire
an opportunity to decline it. As regards morocco, the status of a neutral national in time of war. For these
proceedings were also abandoned, as the question was reasons, Liechtenstein was not entitled to take up his
not at that time of any practical importance. case and put forward an international claim on his
The exchange of notes was brought to the knowledge of behalf against Guatemala.
the President of the Court.
FACTS: By the Application filed on December 17th,
New French Law. In execution of the Franco-British 1951, the Government of Liechtenstein instituted
agreement, the French Government on December 20th proceedings before the Court in which it claimed
promulgated a law regarding the acquisition of French restitution and compensation on the ground that the
nationality in the Regency of Tunis. This law cancels Government of Guatemala had “acted towards the
the decrees of November 8th, 1921, person and property of Mr. Friedrich Nottebohm, a
and embodies the conditions of the Franco-British citizen of Liechtenstein, in a manner contrary to
agreement referred to above. international law.” In its Counter-Memorial, the
Government of Guatemala contended that this claim
(So they resolved the dispute by themselves. Yeyy. So
mature.) was inadmissible because of the nationality of the
person for whose protection Liechtenstein had seised
the Court.
NOTTEBOHM (SECOND PHASE) (Liechtenstein
v. Guatemala) Judgment, 1995, ICJ Rep 4 Guatemala has referred to a well-established principle
of international law, which it expressed in Counter-
OVERVIEW OF THE CASE Memorial, that “the bond of nationality between the
In this case, Liechtenstein claimed restitution and State and the individual alone confers upon the State
compensation from the Government of Guatemala on the right of diplomatic protection.” This sentence is
the ground that the latter had acted towards Friedrich taken from a Judgment of the Permanent Court of
Nottebohm, a citizen of Liechtenstein, in a manner International Justice which relates to the form of
contrary to international law. Guatemala objected to the diplomatic protection constituted by international
Court’s jurisdiction but the Court overruled this judicial proceedings.
objection in a Judgment of 18 November 1953. In a Liechtenstein considers itself to be acting in
second Judgment, of 6 April 1955, the Court held that conformity with this principle and contends that
Liechtenstein’s claim was inadmissible on grounds Nottebohm is its national by virtue of the naturalization
relating to Mr. Nottebohm’s nationality. It was the conferred upon him.
bond ofSoriano
Eunice nationality
Baliongbetween
| based onaAtty.
State and syllabus,
Pandi’s an individual
which alone conferred upon the State the right to put
forward an international claim on his behalf. Mr.
Nottebohm, who was then a German national, had Nottebohm was born at Hamburg on September 16th,
settled in Guatemala in 1905 and continued to reside 1881. He was German by birth, and still possessed
2019, EH 402) Jerusalem, 1961
conferred upon him. without delay, that the application be then placed
before the Diet with a favorable recommendation and,
Nottebohm was born at Hamburg on September 16th, finally, that it be submitted with all necessary
1881. He was German by birth, and still possessed expedition to His Highness the Reigning Prince.''
German nationality when, in October 1939, he applied
for naturalization in Liechtenstein. In 1905 he went to A certificate of nationality has also been produced,
Guatemala. He took up residence there and made that signed on behalf of the Government of the Principality
country the headquarters of his business activities, to the effect that Nottebohm was naturalized by
which increased and prospered; these activities Supreme Resolution of the Reigning Prince dated
developed in the field of commerce, banking and October 13th, 1939. Having obtained a Liechtenstein
plantations. Having been an employee in the firm of passport, Nottebohm had it visa-ed by the Consul
Nottebohm Hermanos, which had been founded by his General of Guatemala in Zurich on December 1st,
brothers Juan and Arturo, he became their partner in 1939, and returned to Guatemala at the beginning of
1912 and later, in 1937, he was made head of the firm. 1940, where he resumed his former business activities
After 1905 he sometimes went to Germany on business and in particular the management of the firm of
and to other countries for holidays. He continued to Nottebohm Hermanos.
have business connections in Germany.
The real issue before the Court is the admissibility of
On October 9th, 1939, Nottebohm, “resident in the claim of Liechtenstein in respect of Nottebohm. In
Guatemala since 1905 (at present residing as a visitor order to decide upon the admissibility of the
Vaduz),” applied for admission as a national of Application, the Court must ascertain whether the
Liechtenstein and, at the same time, for the previous nationality conferred on Nottebohm by Liechtenstein
conferment of citizenship in the Commune of Mauren. by means of a naturalization which took place in the
He sought dispensation from the condition of three circumstances which have been described, can be
years’ residence as prescribed by law, without validly invoked as against Guatemala, whether it
indicating the special circumstances warranting such bestows upon Liechtenstein a sufficient title to the
waiver. He submitted a statement of the Credit Suisse exercise of protection in respect of Nottebohm as
in Zurich concerning his assets, and undertook to pay against Guatemala and therefore entitles it to seise the
25,000 Swiss francs to the Commune of Mauren, Court of a claim relating to him. In this connection,
12,500 Swiss francs to the State, to which was to be Counsel for Liechtenstein said: “the essential question
added the payment of dues in connection with the is whether Mr. Nottebohm, having acquired the
proceedings. He further stated that he had made nationality of Liechtenstein, that acquisition of
“arrangements with the Revenue Authorities of the nationality is one which must be recognized by other
Government of Liechtenstein for the conclusion of a States.”
formal agreement to the effect that he will pay an
annual tax of naturalization amounting to Swiss francs RULING: It is international law which determines
1,000, of which Swiss francs 600 are payable to the whether a State is entitled to exercise protection and to
Commune of Mauren and Swiss francs 400 are payable seise the Court.
to the Principality of Liechtenstein, subject to the
proviso that the payments of these taxes will be set off The naturalization of Nottebohm was an act performed
against ordinary taxes which will fall due if the by Liechtenstein in the exercise of its domestic
applicant takes up residence in one of the Communes of jurisdiction. The question to be decided is whether that
the Principality.” He further undertook to deposit as act has the international effect here under
security a sum of 30,000 Swiss francs. He also gave consideration. International practice provides many
certain general information as to his financial position examples of acts performed by States in the exercise of
and indicated that he would never become a burden to their domestic jurisdiction which do not necessarily or
the Commune whose citizenship he was seeking. automatically have international effect, which are not
Lastly, he requested "that naturalization proceedings be necessarily and automatically binding on other States or
initiated and concluded before the Government of the which are binding on them only subject to certain
Principality and before the Commune of Mauren conditions: this is the case, for instance, of a judgment
without delay, that the application be then placed given by the competent court of a State which it is
Eunicethe
before Soriano
DietBaliong
with a| based on Atty.recommendation
favorable Pandi’s syllabus, discussions,
and, sought
slides, to invoke
and the books byinHenriksen,
another State.
Akehurst, and Shaw 94
finally, that it be submitted with all necessary
expedition to His Highness the Reigning Prince.''
In the present case it is necessary to determine whether
2019, EH 402) Jerusalem, 1961
given by the competent court of a State which it is interests and sentiments, together with the existence of
sought to invoke in another State. reciprocal rights and duties. It may be said to constitute
the juridical expression of the fact that the individual
In the present case it is necessary to determine whether upon whom it is conferred, either directly by the law or
the naturalization conferred on Nottebohm can be as the result of an act of the authorities, is in fact more
successfully invoked against Guatemala, whether, as closely connected with the population of the State
has already been stated, it can be relied upon as against conferring nationality than with that of any other State.
that State, so that Liechtenstein is thereby entitled to Conferred by a State, it only entitles that State to
exercise its protection in favor of Nottebohm against exercise protection vis -a-vis another State, if it
Guatemala. When one State has conferred its constitutes a translation into juridical terms of the
nationality upon an individual and another State has individual's connection with the State which has made
conferred its own nationality on the same person, it him its national.
may occur that each of these States, considering itself
to have acted in the exercise of its domestic At the time of his naturalization does Nottebohm
jurisdiction, adheres to its own view and bases itself appear to have been more closely attached by his
thereon in so far as its own actions are concerned. In so tradition, his establishment, his interests, his activities,
doing, each State remains within the limits of its his family ties, his intentions for the near future to
domestic jurisdiction. This notion is inherent in the Liechtenstein than to any other State? The essential
provisions of Article 3, paragraph 2, of the Statute of facts appear with sufficient clarity from the record.
the Court. National laws reflect this tendency when, They are as follows:
inter alia, they make naturalization dependent on
conditions indicating the existence of a link, which may At the date when he applied for naturalization,
vary in their purpose or in their nature but which are Nottebohm had been a German national from the time
essentially concerned with this idea. The Liechtenstein of his birth. He had always retained his connections
Law of January 4th, 1934, is a good example. with members of his family who had remained in
Germany and he had always had business connections
The character thus recognized on the international with that country. His country had been at war for more
level as pertaining to nationality is in no way than a month, and there is nothing to indicate that the
inconsistent with the fact that international law leaves it application for naturalization then made by Nottebohm
to each State to lay down the rules governing the grant was motivated by any desire to dissociate himself from
of its own nationality. The reason for this is that the the Government of his country.
diversity of demographic conditions has thus far made
it impossible for any general agreement to be reached He had been settled in Guatemala for 34 years. He had
on the rules relating to nationality, although the latter carried on his activities there. It was the main seat of
by its very nature affects international relations. It has his interests. He returned there shortly after his
been considered that the best way of making such rules naturalization, and it remained the center of his
accord with the varying demographic conditions in interests and of his business activities. He stayed there
different countries is to leave the fixing of such rules to until his removal as a result of war measures in 1943.
the competence of each State. On the other hand, a He subsequently attempted to return there, and he now
State cannot claim that the rules it has thus laid down complains of Guatemala's refusal to admit him. There,
are entitled to recognition by another State unless it has too, were several members of his family who sought to
acted in conformity with this general aim of making the safeguard his interests.
legal bond of nationality accord with the individual's
genuine connection with the State which assumes the In contrast, his actual connections with Liechtenstein
defense of its citizens by means of protection as against were extremely tenuous. No settled abode, no
other States. prolonged residence in that country at the time of his
application for naturalization: the application indicates
According to the practice of States, nationality is a that he was paying a visit there and confirms the
legal bond having as its basis a social fact of transient character of this visit by its request that the
attachment, a genuine connection of existence, naturalization proceedings should be initiated and
interests and sentiments, together with the existence of concluded without delay. No intention of settling there
Eunice Soriano
reciprocal Baliong
rights | based on
and duties. Atty. Pandi’s
It may be saidsyllabus, wasandshown
discussions, slides,
to constitute at by
the books that time or
Henriksen, realized
Akehurst, and in the 95
Shaw ensuing
the juridical expression of the fact that the individual weeks, months or years—on the contrary, he returned
upon whom it is conferred, either directly by the law or to Guatemala very shortly after his naturalization and
as the result of an act of the authorities, is in fact more showed every intention of remaining there. If
Nottebohm went to Liechtenstein in 1946, this was
2019, EH 402) Jerusalem, 1961
concluded without delay. No intention of settling there 5.1.3 PASSIVE PERSONALITY PRINCIPLE
was shown at that time or realized in the ensuing Passive personality principle—a State can assert its
weeks, months or years—on the contrary, he returned jurisdiction over an offence committed abroad on the sole
to Guatemala very shortly after his naturalization and ground that the victim of the offence was a national of the
showed every intention of remaining there. If State
Nottebohm went to Liechtenstein in 1946, this was
because of the refusal of Guatemala to admit him. No
indication is given of the grounds warranting the UNITED STATES V. FAWAZ YUNIZ, AKA
waiver of the condition of residence, required by the NAZEEH, APPELLANT, 924 F.2d 106
1934 Nationality Law, which waiver was implicitly (DC Circ. 1991)
granted to him. There is no allegation of any economic Facts: Yunis and 4 other men boarded Royal Jordanian
interests or of any activities exercised or to be exercised Airlines Flight 402 ("Flight 402") shortly before its
in Liechtenstein, and no manifestation of any intention scheduled departure from Beirut, Lebanon. He took
whatsoever to transfer all or some of his interests and control of the cockpit and forced the pilot to take off
his business activities to Liechtenstein. It is immediately. The remaining hijackers tied up Jordanian
unnecessary in this connection to attribute much air marshals and held the civilian passengers, including
importance to the promise to pay the taxes levied at the two American citizens, captive. The hijackers
time of his naturalization. explained that they wanted the plane to fly to Tunis,
The only links to be discovered between the where a conference of the Arab League was under way.
Principality and Nottebohm are the short sojourns They wanted a meeting with delegates to the
already referred to and the presence in Vaduz of one of conference and that their ultimate goal was removal of
his brothers: but his brother's presence is referred to in all Palestinians from Lebanon. The plane returned to
his application for naturalization only as a reference to Beirut when authorities block the airport runway in
his good conduct. Tunis, where more hijackers from Lebanon’s Amal
Militia came aboard. In Beirut, the hijackers released
These facts clearly establish, on the one hand, the the passengers, held a press conference reiterating their
absence of any bond of attachment between Nottebohm demand that Palestinians leave Lebanon, blew up the
and Liechtenstein and, on the other hand, the existence plane, and fled from the airport.
of a long-standing and close connection between him
and Guatemala, a link which his naturalization in no An American investigation led by the FBI planned
way weakened. That naturalization was not based on Yunis' arrest. After obtaining an arrest warrant, the FBI
any real prior connection with Liechtenstein, nor did it put "Operation Goldenrod" into effect. Undercover FBI
in any way alter the manner of life of the person upon agents lured Yunis onto a yacht in the eastern
whom it was conferred in exceptional circumstances of Mediterranean Sea with promises of a drug deal, and
speed and accommodation. In both respects, it was arrested him once the vessel entered international
lacking in the genuineness requisite to an act of such waters. He was interrogated for several days and was
importance, if it is to be entitled to be respected by a taken to Washington, D.C. where he was arraigned
State in the position of Guatemala. It was granted charging him with conspiracy, hostage taking, and
without regard to the concept of nationality adopted in aircraft damage.
international relations. The jury convicted Yunis of conspiracy, hostage taking,
Guatemala is under no obligation to recognize a and air piracy. The district court imposed concurrent
nationality granted in such circumstances. sentences of five years for conspiracy, thirty years for
Liechtenstein consequently is not entitled to extend its hostage taking, and twenty years for air piracy. Yunis
protection to Nottebohm vis -a-vis Guatemala and its appeals his conviction and seeks dismissal of the
claim must, for this reason, be held to be inadmissible. indictment. Yunis appealed the decision.
Yunis contentions: Yunis argues that the district court

lacked subject matter and personal jurisdiction to try
him on the charges of which he was convicted, that the

indictment by Henriksen,
should have beenAkehurst, and Shaw
dismissed 96 the
because
the Principality of Liechtenstein is inadmissible.
government seized him in violation of the Posse
Comitatus Act and withheld classified materials useful
to his defense, and that the convictions should be
2019, EH 402) Jerusalem, 1961
him on the charges of which he was convicted, that the hijacking of aircraft, genocide, war crimes, and perhaps
indictment should have been dismissed because the certain acts of terrorism," even absent any special
government seized him in violation of the Posse connection between the state and the offense. Under the
Comitatus Act and withheld classified materials useful passive personal principle, a state may punish non-
to his defense, and that the convictions should be nationals for crimes committed against its nationals
reversed because of errors in the jury instructions. outside of its territory, at least where the state has a
particularly strong interest in the crime.
1. Jurisdiction
Aircraft hijacking is one those crimes condemned under
Allowed under Hostage Taking Act. The Hostage the law of nations and that states may assert universal
Taking Act provides, in relevant part: jurisdiction to bring offenders to justice.
a) Whoever, whether inside or outside the US, seizes Antihijacking Act of 1974 provides for criminal
or detains and threatens to kill, to injure, or to continue punishment of persons who hijack aircraft operating
to detain another person in order to compel a third wholly outside the "special aircraft jurisdiction" of the
person or a governmental organization to do or to US, provided that the hijacker is later "found in the
abstain from any act ... shall be punished by US." It was enacted to fulfil this nation's
imprisonment by any term of years or for life. responsibilities under the Convention for the
Suppression of Unlawful Seizure of Aircraft (the
b) (1) It is not an offense under this section if the "Hague Convention"), which requires signatory nations
conduct required for the offense occurred outside the to extradite or punish hijackers "present in" their
US unless— territory. Congress interpreted the Hague Convention as
A. the offender or the person seized or requiring the US to extradite or prosecute "offenders in
detained is a national of the US; its custody," evidencing no concern as to how alleged
B. the offender is found in the US; or hijackers came within U.S. territory. Thus, Yunis was
C. the governmental organization sought to be properly indicted and under arrest on other charges.
compelled is the Government of the US. 2. Alleged violation of Posse Comitatus especially
Yunis claims that this statute cannot apply to an Navy’s role in Operation Goldenrod
individual who is brought to the US by force, since Posse Comitatus Act establishes criminal penalties for
those convicted under it must be "found in the US". wilful use of "any part of the Army or the Air Force" in
Since 2 of the passengers on Flight 402 were U.S. law enforcement, unless expressly authorized by law.
citizens, section (b)(1)(A) is satisfied. The statute's No restrictions on naval participation under it, only the
jurisdictional requirement has been met regardless of Army and Air Force. Navy personnel played only a
whether or not Yunis was "found" within the US. "passive" role in housing, transporting, and caring for
Allowed under International Convention Against the Yunis while he was in the custody of the FBI, and that
Taking of Hostages. The Convention authorizes any "none of the Navy's activities constituted the exercise
signatory state to exercise jurisdiction over persons of regulatory, proscriptive, or compulsory military
who take its nationals hostage "if that State considers it power." Furthermore, some courts have taken the view
appropriate." that there was also no restriction on use of American
armed forces abroad. Thus, no violation of Posse
Allowed under customary international law. Two Comitatus Act.
jurisdictional theories of international law, the
"universal principle" and the "passive personal 3. Withholding of classified information
principle," supported assertion of U.S. jurisdiction to To prevail on a discovery request for classified
prosecute Yunis. Under the universal principle, states information, a defendant must make a threshold
may prescribe and prosecute "certain offenses showing that the requested material is relevant to his
recognized by the community of nations as of universal case. Then the court must determine whether or not the
concern, such as piracy, slave trade, attacks on or
hijacking of aircraft, genocide, war crimes, and perhaps government has asserted a "colorable" claim to
Eunice Soriano
certain acts ofBaliong
terrorism,"
| based oneven absentsyllabus,
Atty. Pandi’s any special
discussions, slides, and the books
privilege. If thebygovernment
Henriksen, Akehurst, and Shaw
has asserted such 97
a claim,
connection between the state and the offense. Under the the defendant must show that the information would be
passive personal principle, a state may punish non- helpful to his defense.
nationals for crimes committed against its nationals
outside of its territory, at least where the state has a We find very little in the records of conversations
2019, EH 402) Jerusalem, 1961
government has asserted a "colorable" claim to Yunis claims that the district court erred as a matter of
privilege. If the government has asserted such a claim, law when it instructed the jury that Yunis could prevail
the defendant must show that the information would be on this defense only if the Amal Militia is a "military
helpful to his defense. organization." It is a military organization only if the
group has a hierarchical command structure and "
We find very little in the records of conversations conducts its operations in accordance with the laws and
between Flight 402 and the Beirut control tower that is customs of war," and if its members have a uniform
both responsive to the discovery request at issue and and carry arms openly. Yunis disputes the district
relevance in any way to Yunis' trial. We certainly agree court's position that members of a legitimate military
with the court below that they reveal no information organization must have a uniform. The district court did
within the scope of Yunis' discovery request that would not commit legal error because district court's uniform
have helped him at trial. instruction finds sufficient support in international
agreements. The Geneva Convention, signed by 167
4. Errors in jury instructions nations including the US and Lebanon, establishes
Lastly, Yunis challenges the district court's instructions "having a fixed and distinctive signal recognizable at a
to the jury to the following: distance" as one of four necessary conditions that
qualify the members of a militia for treatment as
• Intent requirements of the federal hostage taking, prisoners of war. The Hague Convention No. IV, to
hijacking, and conspiracy statutes- Yunis claims that which the US and 42 other nations are parties, uses
the Antihijacking Act and the Hostage Taking Act, having "a fixed distinctive emblem recognizable at a
make specific intent an element of the offenses they distance" as a test for whether militiamen and members
establish, and that the district court erred in failing to of volunteer corps have the rights and responsibilities
adopt jury instructions offered by the defense that of national armies.
would have made this clear. In appellant's view, the
trial judge's instruction that Yunis could be convicted Yunis' second objection was that militias must "conduct
on these counts only if he acted "intentionally, [their] operations in accordance with the laws and
deliberately and knowingly" was inadequate. Both the customs of war" to qualify as military organizations.
Antihijacking Act and Hostage Taking Act suggests no Together, he says, these instructions directed the jury to
specific intent requirement on its face. The statutory conclude that the defense of obedience to military
language suggests no intent requirement other than orders was unavailable to Yunis because no
general criminal intent and that the offender must act organization could have given the instruction to hijack
with the purpose of influencing some third person or Flight 402 without violating "the laws and customs of
government through the hostage taking, a point on war." We disagree. The court told jurors that if they
which the jury received proper instructions. found that Yunis was a soldier in a military
organization under the definition given them, they
Regarding conspiracy, the jury received instructions would then have to address the issue of whether or not
that the government "must show beyond a reasonable Yunis knew that his orders were illegal.
doubt that the conspiracy was knowingly formed and
that the defendant willfully participated in the unlawful For the foregoing reasons, the convictions are affirmed.
plan with the intent to advance or further some object
or purpose of the conspiracy." We discern no defect in 5.1.4 PROTECTIVE JURISDICTION
this instruction.
Protective principle—a State may extend its jurisdiction
• Defense of obedience to military orders - The acts of over any matter that has a deleterious effect on it
a subordinate done in compliance with an unlawful regardless of where the acts occur or who has committed it
order given him by his superior are excused and impose
no criminal liability upon him unless he knows it to be  This requires the existence of a genuine threat to a
unlawful. vital state interest and must not therefore, be
confused with the controversial effect doctrine
Euniceclaims
Yunis Sorianothat
Baliong
the |district
based oncourt erred as
Atty. Pandi’s a matter
syllabus, of
law when it instructed the jury that Yunis could prevail
on this defense only if the Amal Militia is a "military
organization." It is a military organization only if the
group has a hierarchical command structure and "
2019, EH 402) Jerusalem, 1961
whereby a state extends its laws to acts that merely the high seas ordering the 1,000 tons of oil.
have a negative economic effect in the state
7. The Southern District of New York (NY) was the
Example: district into which the American defendants were first
brought and were found, but Millar, the British
 Prohibition of falsification or counterfeiting of
defendant, has not been found.
seals, currency, instruments of credit, stamps,
passports, or public documents issued by the state 8. The District court of NY granted the demurrer.
 Prescription in the 1960s of so-called pirate radio According to the District Court of NY, it had no
broadcasting from unauthorized radio stations on jurisdiction over offenses committed in the high seas
ships on the high seas because the legislature did not specifically provide that
Article 35 of the Criminal Code should apply also to
UNITED STATES v. BOWMAN, 260 US 94 (1992) offenses committed in the high seas and Congress had
always expressly indicated it when it intended that its
This case is a review of the ruling of the district court laws should be operative on the high seas. It has never
of New York (NY) which sustained a demurrer of one been invoked for offenses committed in the high seas.
of the defendants to an indictment for a conspiracy to
defraud a corporation in which the US is a stockholder Issue: WON the District Court of NY committed an
under Art. 35 of the Crim Code of US. error to a judgment by quashing an indictment on
demurrer.
Facts:
Ruling: YES. The Court has jurisdiction over the
1. The steamship Dio belonged to the US. The United offenses committed in the high seas.
States owned all the stock in the United States Shipping
Board Emergency Fleet Corporation. The National According to the US Supreme Court, this case calls for
Shipping Corporation agreed to operate and manage the a question of statutory construction. The court looked
Dio for the Fleet Corporation, which was to pay for into the purpose of Congress as evinced by the
fuel, oil, labor, and material used in the operation. description and nature of the crime.
2. The Dio was on a voyage to Rio de Janeiro. Wry- Criminal statutes which are, as a class, not logically
master, Bowman-engineer, Hawkinson-agent of the dependent on their locality for the government's
Standard Oil Company at Rio de Janeiro, and Millar – jurisdiction, but are enacted because of the right of the
merchant and ship repairer and engineer in Rio. government to defend itself against obstruction or fraud
wherever perpetrated, especially if committed by its
3. The first three were American citizens, and Millar own citizens, officers, or agents. Some such offenses
was a British subject. can only be committed within the territorial jurisdiction
of the government because of the local acts required to
4. Johnston & Co. were the agents of the National
constitute them. Others are such that to limit their locus
Shipping Corporation at Rio.
to the strictly territorial jurisdiction would be greatly to
5. The plot was made by Wry and Bowman on board curtail the scope and usefulness of the statute, and leave
the Dio before she reached Rio. Through Johnston & open a large immunity for frauds as easily committed
Co., they ordered 1000 tons of fuel but took only 600 by citizens on the high seas.
tons aboard. They sold the 400 tons and divided it
In such cases, Congress has not thought it necessary to
between them.
make specific provision in the law that the locus shall
6. Plan was made possible through the guilty include the high seas and foreign countries, but allows
connivance of the Standard Oil agent, Hawkinson, and it to be inferred from the nature of the offense. Many of
Millar, the Rio merchant, who was to collect the these occur in c. 4, which bears the title "Offense
money. Overt acts charged included a wireless telegram against the Operation of the Government." Section 70
to the agents, Johnston & Co., from the Dio while on of that chapter punishes whoever, as consul, knowingly
certifies a false invoice. Clearly the locus of this crime
the high seas ordering the 1,000 tons of oil. as intended by Congress is in a foreign country, and
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and thethe
certainly books by Henriksen,
foreign countryAkehurst,
in whichand
heShaw 99 his
discharges
7. The Southern District of New York (NY) was the official duty could not object to the trial in a United
district into which the American defendants were first States court of a United States consul for crime of this
brought and were found, but Millar, the British sort committed within its borders.
2019, EH 402) Jerusalem, 1961
as intended by Congress is in a foreign country, and used to transport marijuana from Colombia to the US,
certainly the foreign country in which he discharges his sited a shrimp boat, the El Don, lying dead in the water,
official duty could not object to the trial in a United apparently having engine trouble.
States court of a United States consul for crime of this
sort committed within its borders. 2. The Coast Guard suspected that the El Don was a
smuggling vessel; she was not rigged for fishing, flew
Another example: Forging or altering ship's papers is no flag, and bore no markings indicating her home port.
made a crime. It would be going too far to say that,
because Congress does not fix any locus, it intended to 3. Exercising the "right of approach," the Escape pulled
exclude the high seas in respect of this crime. The alongside the El Don, and Guardsmen boarded her to
natural inference from the character of the offense is examine her registration papers.
that the sea would be a probable place for its
commission. 4. Coast Guardsmen discovered a cargo of four and
one-half tons of marijuana.
It is directed generally against whoever presents a false
claim against the United States to any officer of the 5. The El Don was of Panamanian registry. This
civil, military, or naval service or to any department information was relayed to the U.S. State Department
thereof, or any corporation in which the United States which communicated with the Panamanian
is a stockholder, or whoever connives at the same. government. Thereafter, the Coast Guard, presumably
with Panama's approval, instructed the Escape to seize
The section was amended in 1918 to include a the El Don and its crew and to take them to Key West,
corporation in which the United States owns stock. This Florida for prosecution. The Escape followed this
was evidently intended to protect the Emergency Fleet instruction.
Corporation, in which the United States was the sole
stockholder, from fraud. That corporation was expected 6. The El Don 's crew were indicted under the
to engage in, and did engage in, a most extensive ocean Marijuana on the High Seas Act of 1980 and the
transportation business. Comprehensive Drug Abuse Prevention and Control
Act of 1970 in five counts,
The same section of the statute protects the arms,
ammunition, stores, and property of the army and navy 7. Count I charged the defendants under Sec. 955c
from fraudulent devices of a similar character. We (1982) with conspiring to possess marijuana in United
cannot suppose that, when Congress enacted the statute States customs waters. Count II charged the defendants
or amended it, it did not have in mind that a wide field for violating section 955a(c). Count III charged the
for such frauds upon the government was in private and defendants, again under Sec. 955c, with conspiring to
public vessels of the United States on the high seas and possess marijuana with intent to import it, or knowing
in foreign ports and beyond the land jurisdiction of the that it will be imported, into the United States. Count
United States, and therefore intended to include them in IV charged the substantive section 955a(d) offense.
the section. Count V charged the defendants with conspiring to
import marijuana into the United States from a place
Therefore, the decision of the District Court of NY is outside.
reversed. The US Supreme Court ruled that the courts
have jurisdiction over the high seas. 8. Defendant’s contention: the sections of the
Marijuana on the High Seas Act were so vague and
overbroad as to violate the due process clause of the
UNITED STATES v. ROMERO-GALUE, 757 F.2d fifth amendment. They attacked counts I and II saying
1147 (11th Cir. 1985) Congress did not intend to make it a crime for a person
not a United States citizen to conspire to possess, or to
Facts: possess, marijuana on a foreign vessel on the high seas.
1. U.S. Coast Guard cutter Escape, while patrolling 9. The District Court dismissed the indictment. The
Mysteriosa Bank of the Yucatan Pass, a thoroughfare court gave no reasons for its action, except as to count
II. It concluded that count II failed to state an offense
used toSoriano
Eunice transport marijuana
Baliong from
| based on Atty.Colombia to the
Pandi’s syllabus, US,
discussions, because
slides, and thethe defendants'
books possession
by Henriksen, of Shaw
Akehurst, and marijuana
100 had
sited a shrimp boat, the El Don, lying dead in the water, taken place on a foreign vessel located on the high seas,
apparently having engine trouble. i.e., beyond the territorial waters of the United States,
2. The Coast Guard suspected that the El Don was a and section 955a(c) did not reach such conduct. The
government now appeals.
2019, EH 402) Jerusalem, 1961
II. It concluded that count II failed to state an offense government should have been given the chance to
because the defendants' possession of marijuana had prove that such treaty or arrangement exists between
taken place on a foreign vessel located on the high seas, US and Panama.
i.e., beyond the territorial waters of the United States,
and section 955a(c) did not reach such conduct. The Basis: Congress first formulated the definition of
government now appeals. "customs waters" when it passed the Anti-Smuggling
Act of 1935 to reduce the smuggling of liquor into the
Issue: 1) WON Congress, in enacting section 955a(c) US. The government could only prosecute smugglers in
of the Marijuana on the High Seas Act, intend to reach vessels seized within the 12 mile customs waters area;
foreign flag vessels on the high seas. smuggling vessels could hover beyond that twelve-mile
limit with impunity. The United States did have liquor
2) WON count I of the indictment allege a section 955c treaties with sixteen nations, which allowed it to seize a
conspiracy. treaty nation's vessel and to enforce the anti-smuggling
laws if the vessel was caught within one hour's sailing
Ruling: distance of the coast of the United States, but these
1. YES. Congress intended it to reach foreign flag treaties were not self-executing. Absent statutory
vessels on the high seas. authority, the United States lacked the power to apply
its penal laws to a treaty nation's vessel located outside
Section 955a(c) states: the twelve-mile limit, yet within one hour's sailing
distance from the shore. Congress solved this problem
“It is unlawful for any person on board any vessel by passing the Anti-Smuggling Act. The Act created
within the customs waters of the United States to customs enforcement areas that extended into the high
knowingly or intentionally ... possess with intent to ... seas beyond the twelve-mile limit; "customs waters"
distribute [marijuana].” means "twelve miles in the case of domestic or
nontreaty foreign vessels [and] treaty distance ... in the
The term "customs waters" means, in the case of a case of foreign treaty vessels."
foreign vessel subject to a treaty or other arrangement
between a foreign government and the United States The goal of Congress when it enacted Marijuana on
enabling or permitting the authorities of the United High Seas Act is much like the Anti-Smuggling Act.
States to board, examine, search, seize, or otherwise to Both statutes authorize the prosecution of smugglers
enforce upon such vessel upon the high seas the laws of hovering on the high seas beyond the twelve mile limit.
the United States, the waters within such distance of the
coast of the United States as the said authorities are or Defendants contend that Congress did not intend that
may be so enabled or permitted by such treaty or "customs waters" be established in areas as remote as
arrangement and, in the case of every other vessel, the the one in which the El Don was seized, because this
waters within four leagues of the coast of the United would transgress principles of international law.
States [i.e., within the twelve mile limit].
CA held that it is true that Congress did not intend to
The District Court dismissed the counts bec. according transgress international law. However, it also does not
to it, the evidence were seized hundreds of miles away, preclude the designation “by treaty or other
they assumed that it was beyond the 12 mile limit under arrangements” because nothing in international law
the definition of customs waters. prohibits two nations from entering into a treaty.
However, the Court of Appeals (CA) of US ruled that Even absent such treaty, the United States could, under
the District Court erred in making such assumption. the "protective principle" of international law,
According to the SC, the inquiry should not have ended prosecute foreign nationals on foreign vessels on the
with whether it was within 12 mile limit, but the next high seas for possession of narcotics. The protective
step was to ask whether the seizure could have been principle permits a nation to assert jurisdiction over a
"customs waters" designated by the United States and person whose conduct outside the nation's territory
Panama, by "treaty or other arrangement,". The threatens the nation's security or could potentially
government should have been given the chance to interfere with the operation of its governmental
prove
Eunicethat such
Soriano treaty| based
Baliong or arrangement
on Atty. Pandi’sexists between
syllabus, functions.
discussions, slides, (in by
and the books relation toAkehurst,
Henriksen, the topic of protective
and Shaw 101
US and Panama. jurisdiction)
Basis: 2. NO. It only requires government to establish

intent to possess marijuana within customs waters.
2019, EH 402) Jerusalem, 1961
interfere with the operation of its governmental ATTORNEY GENERAL v. ADOLF EICHMANN,
functions. (in relation to the topic of protective District Court of Jerusalem, Criminal Case No. 40/61
jurisdiction)
Facts: Adolf Eichmann was brought to court on
2. NO. It only requires government to establish charges of crimes against the Jewish people, crimes
intent to possess marijuana within customs waters. against humanity, and war crimes. (oh my gaahd close
to home kaayo huhuhu) The period of crimes is that
These waters as already stated, includes those beyond during the Hitler regime and the counts of indictment
the 12 mile limit. The government should be given the encompass the catastrophe which befell the Jewish
opportunity to establish the required elements such as people during that period—a story of bloodshed and
the treaty or any other arrangements during trial. suffering which will be remembered to the end of time.
(Nindot bitaw kaayo ang full text. Gi ingunani gyud og
Therefore, decision of District Court is reversed and sulat..I crii..as in grabeha bitaw mura jud kag nag basa
remanded. og novel inana sya ka kilig pagsulat)
5.1.5 UNIVERSAL JURISDICTION Although this is not the first time that the
Holocaust was discussed in Court (i.e. International
Universal jurisdiction—certain offences are so serious and Military Trial at Nuremberg), this case is unique
disruptive to international society that any state may claim because 1) it is an exhaustive description of events in
jurisdiction over them no matter where they have been the Holocaust, and 2) it emphasizes the feats of heroism
committed or by whom. by ghetto-fighters and Jewish partisans, 3) it answers
questions of great import which have been long
 Lack of direct link between the state and the
standing and has now emerged again because of the
offence makes this unique
sufferings of the Jewish people in the 20th century
 Crime of piracy that gave rise to the notion of
universal jurisdiction. So basically, daghan kaayo ni sya gi tackle nga
 Offences: violations of norms of peremptory decision but let’s stick to the relevant parts...
character/jus cogens: (1) genocide, (2) crimes
against humanity, (3) serious war crimes, (4) I. Jurisdiction
torture
The law which confers jurisdiction to try the
Two Situations Whereby Universal Jurisdiction can be accused is the Nazis and Nazi Collaborators
asserted: Punishment Law, hereinafter called “the Law.” Sec.
1(a) of it provides:
1) Universal jurisdiction in absentia—Where a State
asserts universal jurisdiction despite the fact that “A person who has committed one of the
the alleged offender is NOT even present on its following offences
territory (pure form)
(1) during the period of the Nazi regime in a
ARREST WARRANT OF 11 APRIL 2000 (CONGO v. hostile country, carried out an act constituting a
BELGIUM), Judgment, 2002, ICJ crime against the Jewish People;
2) Aut dedere aut judicare—obligation of a state in (2) during the period of the Nazi regime,
an increasing number of treaties to either prosecute carried out an act constituting a crime against
or extradite an alleged offender of specific humanity, in a hostile country;
offences who is located on the territory of that
3) State (second or more limited form) (3) during the period of the Second World War,
carried out an act constituting a war crime, in
a hostile country; is liable to the death
penalty.”
Note the bold and italicized words. Basically,
the Law was designed to make it possible to try IN
ISRAEL, Nazis, their associates and collaborators.
This makes this law unique and different from any
2019, EH 402) Jerusalem, 1961
Note the bold and italicized words. Basically, [13] this universal authority is the authority of the
the Law was designed to make it possible to try IN forum deprehensionis, meaning, the court of the
ISRAEL, Nazis, their associates and collaborators. country in which the accused is held in custody.
This makes this law unique and different from any Maritime nations have also since time immemorial
other criminal law. Note the use of the words “hostile enforced the principle of universal jurisdiction in
country,” “during the period of Nazi regime,” and dealing with pirates, whose crime is known in English
“during the period of Second World War,” which law as “piracy jure gentium.” So si Court nag cite
defines the application of the law in point of place and dayun syag og mga sources of IL to justify this:
time. This shows that the Law is 1) RETROACTIVE,
and 2) EXTRA-TERRITORIAL in application. So mao ...a pirate being hostis humani generis. As
ni sya ang naka unique because as a general rule, therefore, he has renounced all the benefits of
“criminal legislation...generally looks to the future and society and government, and has reduced
not...to the past; to the home country and not...abroad.” himself afresh to the savage state of nature, by
(See drama jud kaayo ang Court..fudgee) declaring war against all mankind, all
mankind must declare war against him; so
II. Eichmann’s Defense that every community hath a right by the rule
of self-defence, to inflict that punishment upon
The counsel for defendant contests the Court’s him which every individual would in a state of
jurisdiction based on international law: nature have been otherwise entitled to do, for
any invasion of his person or personal property.
(a) that the Israeli Law, by inflicting punishment
for acts committed outside the boundaries of the -Blackstone Commentaries on the
state and before its establishment, against persons Laws of England, “Of Offences against
who were not Israeli citizens, and by a person who the Law of Nations”
acted in the course of duty on behalf of a foreign
country (“Act of State”) conflicts with international But whereas according to international law the
law and exceeds the powers of the Israeli legislator; criminal jurisdiction of municipal law is
ordinarily restricted to crimes by its own
(b) that the prosecution of the Accused in Israel nationals wherever committed, it is also
upon his abduction from a foreign country conflicts recognized as extending to piracy committed
with international law and exceeds the jurisdiction on the high seas by any national on any ship,
of the Court. because a person guilty of such piracy has
placed himself beyond the protection of any
III. Issues and Ruling state. He is no longer a national, but hostis
ISSUE 1: Is the Law in conflict with international law? humani generis, and as such he is justiciable
by any state anywhere.”
Ruling: [11] Law in question conforms to the best
traditions of the law of nations. -In Re Piracy Jure Gentium (1934)
A.C. 586
[12] abhorrent crimes in the Law are crimes not under
Israeli law alone. These crimes which offended the [14] It is therefore the moral duty of every sovereign
whole of mankind and shocked the conscience of state to enforce the natural right to punish, whoever the
nations are grave offences against the law of nations victims may be, against criminals whose acts have
itself (delicta juris gentium). Therefore, far from “violated in extreme form the law of nature or the law
negating international law, in the absence of an of nations.” By these pronouncements the father of
International Court, the international law is in need of international law (si Hugo Grotius iyang pasabot ani)
the judicial and legislative authorities of every country, laid the foundations for the future definition of the
to give effect to its penal injunctions and bring “crime against humanity” as a “crime under the law of
criminals to trial. The jurisdiction to try crimes nations,” and to universal jurisdiction over such crimes.
under international law is universal. ISSUE: Is the crime at issue a crime under the law
[13] thisSoriano
universal of nations?
Eunice Baliongauthority is the
| based on Atty. authority
Pandi’s syllabus,of the
forum deprehensionis, meaning, the court of the Ruling:
country in which the accused is held in custody.
Maritime nations have also since time immemorial [17] The UN Assembly, by its Resolution No. 96 (I)
enforced the principle of universal jurisdiction in unanimously declared that “genocide” is a crime
2019, EH 402) Jerusalem, 1961
of nations? Sick and Shipwrecked Members of Armed Forces at

Sea, (3) Relative to the Treatment of Prisoners at War,
Ruling: [17] The UN Assembly, by its Resolution No. (4) Relative to the Protection of Civilian Persons in
96 (I) unanimously declared that “genocide” is a crime Time of War. These conventions provide that:
against the law of nations.
“Each High Contracting Party shall be under
[18] Also, the ICJ gave an Advisory Opinion on the the obligation to search for persons alleged to
question of the reservations to the Convention on the have committed, or to have ordered to be
Prevention and Punishment of the Crime of Genocide committed, such grave breaches (of the
which stated: Convention as defined in the following
Article), and shall bring such persons,
[23] it was the intention of the United Nations regardless of their nationality, before its own
to condemn and punish genocide as à crime courts. It may also, if it prefers, and in
under international law' involving a denial of accordance with the provisions of its own
the right of existence of entire human groups, a legislation, hand such persons over for trial to
denial which shocks the conscience of mankind another High Contracting Party concerned,
and results in great losses to humanity, and provided such High Contracting Party has
which is contrary to moral law and to the spirit made out a prima facie case.”
and aims of the United Nations (Resolution 96
(1) of the General Assembly, December 11th, This establishes the principle of universality of
1946). The first consequence arising from this jurisdiction with respect to war crimes, as obligatory
conception is that the principles underlying jurisdiction of the High Contracting Parties, an
the Convention are recognized by civilized obligation from which none of them may withdraw and
nations as binding on States, even without which none of them may waive.
any conventional obligation. A second
consequence is the universal character both of ISSUE: Is the principle of non-retroactivity of
the condemnation ìn order to liberate mankind criminal law violated?
from such an odious scourge' (Preamble to the
Convention). The Genocide Convention was Ruling: [27] The principle that no act is punishable
therefore intended by the General Assembly except in virtue of a legal penal provision which
and by the contracting parties to be preceded it, is not absolute. It may not apply where
definitely universal in scope. It was in fact there are equally important interests of justice
approved on December 9th, 1948, by a concerned. These latter interests do not tolerate
resolution which was unanimously adopted by ETREMELY SERIOUS VIOLATIONS of the
fifty- six States.” generally accepted principles of international law. The
criminal character of which was already established
[19] In light of these affirmations, there is no doubt that beyond doubt AT THE TTIME THEY WERE
genocide has been recognized as a crime under COMMITTED despite the absence of a law expressly
international law in the full legal meaning of the term; prohibiting it.
that is to say: The crimes of genocide committed
against the Jewish People and other peoples were This is because the expulsion of Jews, the object of
crimes under international law. It follows therefore, in which was the death of the Jews, it CANNOT be
the light of the acknowledged principles of admitted that the perpetrators were not aware of the
international law, that the jurisdiction to try such crimes basic principles on which human society is based, and
is universal. which are the common legacy of all civilized nations.
[24] Also relevant are the four Geneva Conventions of ISSUE: Aren’t the alleged crimes an Act of State for
12 August 1949: Geneva Conventions for (1) the which only German state is responsible and not the
Amelioration of the Condition of the Wounded and private individual, Eichmann himself?Ruling:
Sick in Armed Forces in the Field, (2) of the Wounded,
Ruling: [2] Learned counsel bases this argument on the
Sick and Shipwrecked Members of Armed Forces at rule par in parem non habet imperium, “a sovereign
stateand the books
does by Henriksen,
not exercise Akehurst,
dominion andand
over, Shawdoes
104
not sit
Sea, (3) Relative to the Treatment of Prisoners at War,
(4) Relative to the Protection of Civilian Persons in in judgment against another sovereign state.” He
Time of War. These conventions provide that: argues that a state cannot try a person for a criminal act
which constitutes an “act of state” of another state
2019, EH 402) Jerusalem, 1961
rule par in parem non habet imperium, “a sovereign the the most powerful lines I’ve read in law and in life:
state does not exercise dominion over, and does not sit
in judgment against another sovereign state.” He [26] Citing the Einsatzgruppen Case, the Court held:
argues that a state cannot try a person for a criminal act
which constitutes an “act of state” of another state “Nuremberg has only demonstrated how
without the consent of such other state to that person’s humanity can de defended in Court, and it is
trial. inconceivable that...the law of humanity
should ever lack for a tribunal. Where law
[29] Citing the International Military Tribunal at exists a court will rise. Thus, the court of
Nurember which repudiated the “act of state” principle, humanity, if it may be so termed, will never
the Court held that: adjourn.”
Crimes against international law are committed May we be lawyers for humanity.<3
by men, not by abstract entities, and only by
punishing individuals who commit such crimes
UNITED STATES v. OSAMA BIN LADEN, 92 F.
can the provisions of international law be
Supp. 2d 189 (S.D.N.Y. 2000)
enforced...the principle of international law
which protects the representatives of a state Facts: The sixth superseding indictment in this case
CANNOT BE APPLIED to acts which are ("the Indictment") charges fifteen defendants with
condemned as criminal by international law. conspiracy to murder United States nationals, to use
The authors of these acts cannot shelter weapons of mass destruction against United States
themselves behind their official position in nationals, to destroy United States buildings and
order to be freed from punishment. property, and to destroy United States defense utilities.
He who violates the laws of war CANNOT The Indictment also charges defendants Mohamed
obtain immunity while acting in pursuance Sadeek Odeh, Mohamed Rashed Daoud al-Òwhali,
of the authority of the state, if the state, in and Khalfan Khamis Mohamed, among others, with
authorizing action, moves outside its numerous crimes in connection with the August 1998
competence under international law. bombings of the United States Embassies in Nairobi,
Kenya, and Dar es Salaam, Tanzania, including 223
ISSUE: Is the principle of linking point satisfied—the
counts of murder.
special connection between the State of Israel and the
accused? The Indictment also charges defendant Wadih el Hage
with numerous perjury and false statement counts. Six
[35] The people is one and the crime is one. At all
of the Defendants are presently in the custody of the
events, the extermination of European Jewry which was
Bureau of Prisons: Mamdouh Mahmud Salim, Ali
carried out with intent to annihilate the Jewish People,
Mohamed, Wadih El Hage, Mohamed Rashed Daoud
was directed not only against those Jews who were
Al-Owhali, Khalfan Khamis Mohamed, and Mohamed
exterminated, but against the entire Jewish people. To
Sadeek Odeh ("Odeh"). Presently before the Court is
argue that there is no connection, is like cutting away
Odeh's Motion to Dismiss Counts 5-244 for Lack of
the roots and branches of a tree and saying to its trunk:
Jurisdiction, in which the other defendants join. For
I have not hurt you. (Pak! Ka poetic judddd oiiii)
the reasons given below, we grant Odeh's Motion as to
This crime very deeply concerns the vital interests of Counts 234, 235, 240, and 241, but deny it as to Counts
the state of Israel, and pursuant to the protective 5-233, 236-239, and 242-244.
principle, this State has the right to punish the
Issue: WON applying Section 930 (c) to the deaths
criminals.
of "ordinary" foreign nationals on foreign soil
As in...daghan jud kaayo chada pa nga lines gipang would constitute a violation of international law.
yawyaw ang Court...in fairness beautifully written Odeh’s two (2) main arguments:
kaayo ang case, but I will end this digest with one of
1. Under 18 U.S.C. § 930(c), the only arguable
the the most powerful lines I’ve read in law and in life:
basis
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the forbyjurisdiction
books over the
Henriksen, Akehurst, deaths
and Shaw of105
foreign
[26] Citing the Einsatzgruppen Case, the Court held: citizens is the principle of universality;
2. That the universality principle does not
“Nuremberg has only demonstrated encompass terrorist actions resulting in the
how humanity can de defended in deaths of individuals who are not diplomatic
2019, EH 402) Jerusalem, 1961
1. Under 18 U.S.C. § 930(c), the only arguable Second, it is not the case that the universality principle
basis for jurisdiction over the deaths of foreign is the "only arguable basis for jurisdiction over the
citizens is the principle of universality; deaths of foreign citizens." Section 930(c) is designed
2. That the universality principle does not to protect vital United States interests, the protective
encompass terrorist actions resulting in the principle is also an "arguable basis" for the
deaths of individuals who are not diplomatic extraterritorial application of Section 930(c). Hence,
personnel (even where one of the principles the only question is whether a statute of general
authorizes jurisdiction, a nation is nevertheless application, the extraterritorial application of which is
precluded from exercising jurisdiction where acknowledged to be justified by the protective principle
jurisdiction would be ùnreasonable,'" and is nevertheless restricted to victims who are citizens of
application of Section 930(c) to the deaths of the nation that enacted the statute.
ordinary foreign nationals on foreign soil
would be unreasonable) We are aware of no authority for this proposition. Nor
is such a limitation consistent with the purposes the
Section 930 (c) provides: protective principle is designed to serve. Such a
limitation could only weaken the protective function of
[a] person who kills or attempts to kill a statute designed to protect United States interests. In
any person in the course of a violation providing for the death penalty where death results in
of subsection (a) or (b), or in the course the course of an attack on a Federal facility, Section
of an attack on a Federal facility 930(c) is clearly designed to deter attacks on Federal
involving the use of a firearm or other facilities. Given the likelihood that foreign nationals
dangerous weapon, shall be punished will be in or near Federal facilities located in foreign
[as further provided]. nations, this deterrent effect would be significantly
diminished if Section 930(c) were limited to the deaths
Subsection 930 (a) provides in relevant of United States nationals. To paraphrase Bowman, "to
part that "whoever knowingly limit [the reach of Section 930(c) to the deaths of
possesses or causes to be present a United States nationals] would be greatly to curtail the
firearm or other dangerous weapon in a scope and usefulness of the statute and leave open a
Federal facility (other than a Federal large immunity for [attacks against Federal facilities]."
court facility), or attempts to do so,
shall be fined under this title or 2. According to the Restatement, the following factors
imprisoned not more than 1 year, or are to be taken into account for the purpose of
both." 18 U.S.C. § 930(a). determining whether exercise of extraterritorial
jurisdiction is reasonable:
Subsection 930(b) provides that
"[w]hoever, with intent that a firearm (a) the link of the activity to the territory of
or other dangerous weapon be used in the regulating state, i.e., the extent to which
the commission of a crime, knowingly the activity takes place within the territory,
possesses or causes to be present such or has substantial, direct, and foreseeable
firearm or dangerous weapon in a effect upon or in the territory (this alludes to
Federal facility, or attempts to do so, the subjective territorial principle and the
shall be fined under this title or objective territorial principle, it is not
imprisoned not more than 5 years, or especially relevant to a statute, such as Section
both." 18 U.S.C. § 930(b). 930(c), based primarily on the protective
principle);
Ruling: 1. Section 930(c) in this case is supported by
the universality principle. First, because "universal (b) the connections, such as nationality,
jurisdiction is increasingly accepted for certain acts of residence, or economic activity, between the
terrorism, such as ... indiscriminate violent assaults on regulating state and the person principally
people at large," responsible for the activity to be regulated,
or between that state and those whom the
Second, it is not the case that the universality principle regulation
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the is designed
books by Henriksen, to protect
Akehurst, and Shaw(alludes
106 to
is the "only arguable basis for jurisdiction over the the nationality principle, the subjective
deaths of foreign citizens." Section 930(c) is designed territorial principle, and the objective territorial
to protect vital United States interests, the protective principle);
principle is also an "arguable basis" for the
2019, EH 402) Jerusalem, 1961
or between that state and those whom the States facility is on foreign soil, and when the
regulation is designed to protect (alludes to victims of the attack are nationals of the host
the nationality principle, the subjective nation, the host nation "has a keen interest in
territorial principle, and the objective territorial regulating and punishing [the] offenders. Even
principle); if it were the case that the host nation had a
greater interest than the United States, this
(c) the character of the activity to be single factor would be insufficient to support
regulated, the importance of regulation to the conclusion that application of Section
the regulating state, the extent to which 930(c) to the bombings of the two Embassies is
other states regulate such activities, and the unreasonable); and
degree to which the desirability of such
regulation is generally accepted (highly (h) the likelihood of conflict with regulation
relevant to Section 930(c). It is important both by another state ([t]he Kenyan Government
to the United States and other nations to voluntarily rendered Odeh (and [co-defendant]
prevent the destruction of their facilities al-Òwhali) to the United States, and neither
regardless of their location; and such regulation the Kenyan nor the Tanzanian Government has
is accordingly widely accepted among the asserted any objection to the United States'
nations of the world); exercise of jurisdiction in this case).
(d) the existence of justified expectations In light of the foregoing, we conclude that the
that might be protected or hurt by the application of Section 930(c) to the deaths of foreign
regulation (Section 930(c) protects the nationals on foreign soil is reasonable.
expectation of foreign nationals that they will
be free of harm while on the premises of 5.1.6 CONCURRING/ OVERLAPPING
United States facilities. We can think of no JURISDICTIONS
"justified" expectation, however, that would be
hurt by the extraterritorial application of Principle of comity—a State should limit the reach of
Section 930(c)); its laws and defer to other States if those States have a
stronger link to a situation.
(e) the importance of the regulation to the
international political, legal, or economic Example:
system (in light of the prominent role played
by the United States in "the international  Jurisdictional Rule of Reason in the 1987
political, legal, and economic systems," the Restatement (Third) of the Foreign
protection of United States facilities — Relations Law of the United States in
regardless of their location — is highly response to the contentious issue of
important to the stability of these systems); jurisdiction in antitrust cases. The rule
obliges the US not to exercise its
(f) the extent to which the regulation is jurisdiction when it is deemed
consistent with the traditions of the unreasonable, considering:
international system (as indicated by the a) Link of activity to the territory of the
preceding discussion of factor (c), most, if not regulating state
all, nations are concerned about protecting their b) Character of the activity to be
facilities, both at home and abroad. Hence, regulated
Section 930(c) is highly consistent "with the c) Extent to which another state may
traditions of the international system); have an interest in regulating the
activity
(g) the extent to which another state may d) Likelihood of conflict with regulation
have an interest in regulating the activity (it by another state
must be acknowledged that when the United
States facility is on foreign soil, and when the
victimsBaliong
Eunice Soriano of the| based
attackonare
Atty.nationals of thediscussions,
Pandi’s syllabus, host slides, and the books by Henriksen, Akehurst, and Shaw 107
nation, the host nation "has a keen interest in
regulating and punishing [the] offenders. Even
if it were the case that the host nation had a
greater interest than the United States, this
2019, EH 402) Jerusalem, 1961
 In practical terms, it is the State with physical VI

custody of the offender that determines which state IMMUNITY FROM NATIONAL JURISDICTION
will exercise jurisdiction over the individual AND DIPLOMATIC PROTECTION
5.2. JURISDICTION TO ENFORCE Immunity—one of the ways by which a national court

General Rule: First and foremost restriction imposed by may find that it lacks the competence to deal with a matter
international law upon a state is that—failing the existence that involves the interests of a foreign state
of a permissive rule to the contrary—it may NOT exercise
its power in any form in the territory of another State. 6.1. STATE IMMUNITY
(Lotus case) What is the primary basis of state immunity?
5.2.1. EXTRADITION It is based on customary international law.
-where a State hands over an individual located on Two Conventions that Regulate State Immunity
its territory who is wanted for criminal prosecution in
another state. 1) European Convention on State Immunity
(1972)
Principles Governing Extradition o Adopted by the Council of Europe
o Entry into force: 1976
1) Principle of Double Criminality—the offence 2) UN Convention on Jurisdictional Immunities of
involved must be a criminal offence in both states States and Their Property (2004)
concerned o Adopted by the UN General Assembly
2) Principle of Double Jeopardy (Ne Bis in Idem)—an o Not yet in force but many of its provisions
individual should NOT be punished twice for the reflect customary international law
same offence.
3) Extraditing states are bound by human rights Q: Who can assert State immunity?
conventions. (Ex: Obligation NOT to extradite an
individual to another state if there is a risk that the Only INDEPENDENT and SOVEREIGN states.
individual may be subjected to inhuman and If there is doubt about an entity’s statehood, national courts
degrading treatment in the receiving country or in will usually follow instructions from the executive branch.
a third state to which the individual may
For purposes of State Immunity, the term “State” includes:
subsequently be transferred. ART 3 ECHR; ART
7 UN Covenant on Civil and Political Rights; 1. State and its various organs of government
ART 3 UN Convention Against Torture and 2. Ministries
Other Cruel, Inhuman or Degrading Treatment 3. Diplomatic missions
or Punishment 4. Armed forces
5. Any other instrumentality that perform acts in the
Two Opposing Views on Legality of Abduction of
Criminals in Foreign Territory: exercise of sovereign authority
6. A “private entity,” that performs official sovereign
1) A State should refrain from prosecuting an acts
individual brought into the State through measures
Important distinctions between
that violated international law.
2) Mala captus, bene detentus—a State can try an pleas of immunity for:
individual even if the State believes that the ADJUDICATIVE ENFORCEMENT
defendant was brought there by irregular means JURISDICTION JURISDICTION
Relates to the jurisdiction of Concerns the administrative
a court to render judgment and executive powers by
in a matter that involves a whatever measures or
foreign state procedures and by whatever
authorities of the forum
2019, EH 402) Jerusalem, 1961
state together with the protections which that

A state cannot be sued in a Question on immunity from status entailed and were similarly used as
foreign court unless it gives enforcement only arises forced labourers
its consent; must be dealt after the issue of RULING: Immunity is governed by international law
with prior to an inquiry on jurisdictional immunity and is NOT a mere matter of comity. As between
the merits of a case has been dealt with and parties, entitlement to immunity can be derived only
decided against granting the from customary international law ILC, in 1980: “rule of
foreign state immunity; State immunity has been adopted as a general rule of
HENCE, it is called, “the customary international law solidly rooted in the
last bastion of State current practice of States.”
immunity.”
ISSUE: What scope or extent of the law is to be
Q: When must state immunity be granted? applied?
Germany: law to be applied is that which determined
Whenever the circumstances of a case shows that a the scope and extent of State immunity in 1943—1945
state is entitled to immunity and it is NOT necessary for (at the time that the events giving rise to the
the foreign state to appear before the court and claim proceedings in the Italian courts took place)
immunity Italy: that which applied at the time the proceedings
occurred.
DOCTRINE OF ACTS OF STATE—a national court RULING: In accordance with the principle stated in
finds that it lacks the competence to rule on acts by foreign ART 13 of the ILC ARSIWA, compatibility of an act
governments, in its own territory and rejects the case as with international law can be determined ONLY by
non-justiciable. reference to the law in force at the time when the act
occurred. Since the relevant Italian acts (the denial of
JURISDICTIONAL IMMUNITIES OF THE immunity and exercise of jurisdiction by the Italian
STATE (GERMANY v. ITALY: GREECE courts) did NOT occur until the proceedings in the
INTERVENING), 2012, ICJ Italian court took place, the ICJ must examine and
FACTS: Germany alleged that Italy failed to respect apply the law on State immunity as it existed at the
the jurisdictional immunity of Germany by time of the Italian proceedings, rather than that which
 allowing civil claims to be brought against it in existed in 1943-1945
the Italian courts, seeking reparation for RATIONALE: Law of immunity is essentially
injuries caused by violations of international procedural in nature; it regulates the exercise of
humanitarian law committed by the German jurisdiction in respect of particular conduct and is thus
Reich during WWII entirely distinct from the substantive law which
 taking measures of constraint against Villa determines whether that conduct is lawful or unlawful.
Vigoni, German State property situated in
Italian territory ISSUE: Is immunity applicable to acts committed
 declaring enforceable in Italy decisions of by the armed forces of a State and other organs of
Greek civil courts rendered against Germany that State acting in cooperation with the armed
on the basis of acts similar to those which gave forces in the course of conducting an armed
rise to the claims brought before Italian courts. conflict?
The cases in the Italian courts regarding acts Germany: Immunity is applicable and there is no
perpetrated by German armed forces are as follows: relevant limitation on the immunity to which a State is
entitled in respect of acta jure imperii
 large-scale killing of civilians in occupied
Italy: Germany is not entitled to immunity because:
territory as part of a policy of reprisals
 1)TERRITORIAL TORT PRINCIPLE acta
 deportation of members of the civilian
jure imperii does NOT extend to torts or delicts
population to slave labour in Germany
occasioning death, personal injury, or damage
 members of Italian armed forces who were
to property committed in the territory of the
denied the status of prisoner of war
forum State (ART 11 of the European
together with the protections which that
Eunice Soriano Baliong | basedand
on Atty. Pandi’s syllabus, discussions, Convention)
slides, and the and Akehurst, and Shaw 109
books by Henriksen,
status entailed were similarly used as
 2) irrespective of where the relevant acts took
forced labourers
place, Germany was NOT entitled to immunity
RULING:
because those acts involved
Immunity is governed by international law and is NOT
d) the MOST serious violation of
2019, EH 402) Jerusalem, 1961
forum State (ART 11 of the European immunity in proceedings for torts allegedly committed
Convention) and on the territory of another State by its armed forces and
 2) irrespective of where the relevant acts took other organs in the course of conducting an armed
place, Germany was NOT entitled to immunity conflict. Decision of the Italian Courts to deny
because those acts involved immunity to Germany cannot be justified on the basis
a) the MOST serious violation of of territorial tort principle.
rules of international law in the On the gravity of the violations (81-91)
conduct of an armed conflict which Under CIL as it presently stands, a State is
amounted to war crimes and NOT deprived of immunity by reason of the fact that it
crimes against humanity is accused of serious violations of international human
b) of a peremptory character (jus rights law or the international law of armed conflict.
cogens) But this is ONLY immunity of the State from the
c) no alternative means of redress jurisdiction of the other courts of other states.
was available; claimants having On the relationship between jus cogens and the rule
been denied all forms of redress, of State immunity(92-97)
the exercise of jurisdiction by There is NO conflict between rules of jus
Italian courts was necessary as a cogens and the rule of customary law which requires
matter of last resort. one State to accord immunity to another. The two set
RULING: of rules address different matters. Rules of State
On the Territorial Tort Principle (62-79) immunity are procedural in character and are confined
ART 31 of the European Convention is a to determining whether or not the courts of one State
“saving clause,” as it excludes from the scope of the may exercise jurisdiction in respect of another State.
Convention ALL proceedings relating to acts of foreign They do not bear upon the question whether or not the
armed forces, irrespective of whether the forces are conduct in respect of which proceedings are borught
present in the territory of the forum with the consent of was lawful or unlawful.
the forum State and whether their acts take place in On the last resort argument (98-104)
peacetime or in conditions of armed conflict. Acts of NO basis in state practice from which CIL is
armed forces falls entirely OUTSIDE the Convention derived that international law makes the entitlement of
and has to be determined by reference to customary a State to immunity dependent upon the existence of
international law. effective alternative means of securing redress.
But unlike the European Convention, the UN
Convention has NO express provision. But the ILC ISSUE: The measures of constraint taken against
commentary to ART 12 states that the provision does property belonging to Germany located on Italian
NOT apply to “situations involving armed conflicts.” territory?
But State practice shows that State immunity RULING: ART 19, UN Convention, there is at least
for acta jure imperii continues to extend to civil one condition that has to be satisfied before any
proceedings for acts occasioning death, personal injury, measure of constraint may be taken against property
or damage to property committed by the armed forces belonging to a foreign State: 1) that the property in
and other organs of a State in the conduct of armed question must be in use for an activity NOT pursuing
conflict even if the relevant acts take place on the governmental non-commercial purposes, 2) or that the
territory of the forum State. This practice is State which owns the property has expressly consented
accompanied by opinio juris, as demonstrated by the to the taking of a measure of constraint, 3) or that the
positions taken by States and the jurisprudence of a State has allocated the property in question for the
number of national courts which have made clear that satisfaction of a judicial claim.
they considered that CIL required immunity. There is In present case, property subject of the measure of
also almost complete absence of contrary constraint is being used for governmental purposes that
jurisprudence, absence of any statements by States in are entirely non-commerical, and hence falls within
connection with the work of the ILC. Germany’s sovereign functions. Villa Vigoni is the
Thus, CIL require that a State be accorded seat of a cultural centre intended to promote cultural
immunity in proceedings for torts allegedly committed exchanges between Germany and Italy.
onEunice
the territory of another State by its armed forces and Registration
Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, ofbyaHenriksen,
and the books legal charge
Akehurst,on
and Vila
Shaw Vigoni
110 a
other organs in the course of conducting an armed violation by Italy of its obligation to respect immunity
conflict. Decision of the Italian Courts to deny owed to Germany.
immunity to Germany cannot be justified on the basis
of territorial tort principle. ISSUE: Whether Italian courts respect Germany’s
2019, EH 402) Jerusalem, 1961
exchanges between Germany and Italy. Registration of the impunity of the perpetrators, and not the
a legal charge on Vila Vigoni a violation by Italy of its victims’ search for justice (parts X and XIII).
obligation to respect immunity owed to Germany. When a State pursues a criminal policy of
murdering segments of its own population, and
ISSUE: Whether Italian courts respect Germany’s of the population of other States, it cannot, later
immunity from jurisdiction in allowing the on, place itself behind the shield of sovereign
application for exequatur? immunities, as these latter were never
Exeqatur proceedings—does NOT decide on the conceived for that purpose.
merits of a dispute but simply to render an existing
judgment enforceable on the territory of a State other 32. He disregards the traditional and eroded
than that of the court which ruled on the merits distinction between acta jure imperrii and acta
RULING: A court seised on an application for jure gestionis. International crimes perpetrated
exequatur has to ask itself whether the respondent State by States are NOT acts jure gestionis nor acts
enjoys immunity from jurisdiction—having regard to jure imperii, they are crimes delicta imperii for
the nature of the case—before the courts of the State in which there is NO IMUNITY.
which exeqatur proceedings have been instituted. In
other words ask: whether in the event that it had itself 6.1.1. THE DISTINCTION BETWEEN
been seised of the merits of a dispute identical to taht SOVEREIGN AND COMMERCIAL ACTS
which was the subject of a foreign judgment, it would IN ADJUDICATIVE JURISDICTION
have been obliged under international law to accord
immunity to the respondent State. Immunity rationae personae—the practical effect of
Italian courts which declared enforceable in Italy the absolute immunity was that a national court had to refrain
decisions of Greek courts violated Germany’s from exercising jurisdiction over a matter on the sole
immunity. ground that one of the parties to the dispute was a state.
JUSTICE TRINDADE’s Dissenting Opinion: EMPIRE OF IRAN (1963) 45 ILR 57

13. One cannot take account of inter-temporal law German Federal Constitutional Court
only in a way that serves one’s interests in
litigation, accepting the passing of time and the The case applied the restrictive approach after a
evolution of law in relation to certain facts, but thorough review of international law and state practice
not to others of the same continuing situation. and was influential.
IN approaching State immunities and war
reparations claims, the evolution of law is to be “As a means of determining the distinction between
kept in mind. State immunities cannot be acts jure imperii and jure gestionis, one should rather
considered in the void and they constitute a refer to the nature of the State transaction or the
matter which is ineluctably linked to the facts resulting legal relation and not the motive or purpose
which give origin to a contentious case. of the State activity.”
“State immunities are a prerogative or a privilege, and
they cannot keep on making abstraction of the One of the key issues in identifying a commercial
evolution of international law, taking place nowadays transaction relates to whether the nature or purpose of
in light of fundamental human values.” the transaction is determinative. This case explained
14. States CANNOT waive, rights which are NOT the concerns concerning expansion of immunity that
their own, but which are rather inherent to results from reliance on the purpose of the transaction:
human beings. What jeopardizes or “The distinction between sovereign and non-sovereign
destabilizes the international legal order, are cannot be drawn according to the purpose of the State
the international crimes, and not the transaction and whether it stands in a recognisable
individuals’ quest for reparation. What troubles relations to the sovereign duties of the State. For
the international legal order, are the cover-up ultimately, activities of the State, if not wholly, then to
of such international crimes accompanied by the widest degree, serve sovereign purposes and duties.
the impunity of the perpetrators, and not the
victims’
Eunice Soriano search
Baliong for on
| based justice (parts syllabus,
Atty. Pandi’s X and discussions,
XIII). duties...”
slides, and the books by Henriksen, Akehurst, and Shaw 111
When a State pursues a criminal policy of
murdering segments of its own population, and Facts: Firm in Cologne filed a suit with Cologne
of the population of other States, it cannot, later District Court in November 1961 against the Iranian
on, place itself behind the shield of sovereign Empire. Firm asked for payment plus interest for repair
2019, EH 402) Jerusalem, 1961
Facts: Firm in Cologne filed a suit with Cologne it is doubtful whether the courts continue to follow the
District Court in November 1961 against the Iranian doctrine of unrestricted State immunity. In Germany a
Empire. Firm asked for payment plus interest for repair tendency towards restriction of immunity of States can
work done on the heating installation of the Iranian be noted. By contrast the courts particularly of England
Embassy building by order of the Ambassador. The and the United States of America, but similarly also
Court declined because the Iranian Empire as a those of Japan and the Philippines and the Eastern
sovereign State was by general rule of public European States, hold to the position that foreign States
international law exempt from German jurisdiction. are due immunity both for sovereign and for non-
sovereign activity. Particularly in the United States of
ISSUE: Whether according to generally recognized America and England, however, a tendency to depart
rules of public international law, plaintiff can sue the from unrestricted immunity of States is discernible.
state of Iran before a court of the federal republic?
Federal Government: Official activity of the Embassy In view of this objective position, it cannot be deduced
was of a sovereign nature. Since repair work on the from the practice of States that the granting of
Embassy building or its installations was necessary for unrestricted immunity can still today be regarded as a
the regular carrying out of Embassy business, usage practised by far the larger number of States today
conclusion of a contract about such work was in awareness of their legal obligations.
manifestly connected with the sovereign action of the
sending State irrespective of whether a contract to this The preliminary work of the United Nations
effect would for other German law be classified as a International Law Commission on codification of the
matter of private law. law of diplomatic privileges and immunities and of the
RULING: law of consular relationships would seem to have taken
ISSUE: What is the status of state immunity under as a basis that States are now due immunity only for
international law? sovereign acts.
The general rules of international law on the immunity Summarizing, an assessment of the case law, some
of States can belong only to customary international treaty arrangements, efforts at codification and
law. There are no treaty rules that have met with international legal doctrine show that unrestricted State
general recognition. immunity can no longer be regarded as a rule of
customary international law. The Austrian Supreme
German case law has a tendency towards restricting Court should be agreed with when it states in its
immunity of States. The courts of a sizeable number of decision of 10 May 1950 (SZ vol.XXIII p.304 [322])
States guarantee foreign States immunity only for acts that "...it can today no longer be said that on recognized
jure imperii but NOT for acts jure international law the so-called acta gestionis are
gestionis....distinguished between the State as bearer of excepted from domestic jurisdiction"
sovereign power (ente politico) and the State as subject
of private law (ente civile); it granted the foreign State ISSUE: What is the distinction between sovereign
exemption from domestic jurisdiction ONLY in respect and non-sovereign acts of State?
of the exercise of sovereign power. Where hoever the The distinction between sovereign and non-sovereign
foreign State was acting without regard to its sovereign acts of State cannot be drawn according to the purpose
activity and operating at the level of the private citizen, of the State's action, nor whether the action is
the exercise of jurisdiction ought not be denied. recognizably connected with sovereign functions of the
State. For ultimately the State's activity will if not
The review of the case law has shown the following. entirely then at least in by far the greater part serve
The courts of a considerable number of States, sovereign purposes and functions and be in some still
particularly the courts of Italy, Belgium, Switzerland, recognizable connection with them. Nor can it depend
Austria, France, Greece, Egypt and Jordan, on whether the State has acted commercially.
unambiguously grant foreign States immunity only for Commercial activity of States does not differ in essence
sovereign acts. As regards the case law in other States, from other non-sovereign activity of States.
it Eunice
is doubtful
Sorianowhether
Baliong | the courts
based continue
on Atty. to follow
Pandi’s syllabus, the
discussions, Theandcriterion
slides, forHenriksen,
the books by distinguishing
Akehurst, between
and Shaw acts
112 iure
doctrine of unrestricted State immunity. In Germany a imperii and iure gestionis can instead only be the
tendency towards restriction of immunity of States can nature of the State's action or the legal relationship
that has arisen, but not the motive or purpose of the
be noted. By contrast the courts particularly of State's act. It therefore depends on whether the foreign
2019, EH 402) Jerusalem, 1961
The criterion for distinguishing between acts iure missions" is of no significance in the present case. The
imperii and iure gestionis can instead only be the exercise of German jurisdiction would not encroach on
nature of the State's action or the legal relationship diplomatic privileges and immunities.
that has arisen, but not the motive or purpose of the
State's act. It therefore depends on whether the foreign
OLEYNIKOV v. RUSSIA
State has acted in exercise of the sovereign power
European Court of Human Rights
inherent in it, that is in public law, or as a private
person, that in private law.
Applicant lent the Trade Counsellor of the
Embassy of Korea, 1,500 US dollars to be repaid on 29
The qualification of State action as sovereign or non-
May 1997. IN a receipt, the debtor pledged a Totyota
sovereign will in principle have to be effected
Camry car. Furthermore, a 1% interest per day of delay
according to national law, since international law does
was agreed upon. When the Trade Counsellor
not, at any rate as a rule, contain criteria for this
failed to pay, the applicant sent several letters of claim
demarcation (on recourse to national law cf. Herndl,
which were unanswered. Thus applicant wrote to the
loc.cit. p.20 f. with references). The general rule of
Russian Ministry of External Affairs but he was told
public international law that foreign States enjoy
that the Counsellor was a constituent unit of the
immunity from domestic jurisdiction for their sovereign
Embassy and therefore an organ of the Republic of
action does not become devoid of substance and lose its
Korea which acted on its own behalf and enjoyed
character as a legal norm because it is national law that
immunity from suit and immunity from attachment or
is decisive for the demarcation between acts iure
execution.
imperii and iure gestionis. Instead, its more detailed
content results from the national law applicable in the Applicant complained that Russian courts’
given case. Nor is it unusual for norms of international refusal to examine his claim and the DPRK’s failure to
law to refer to national law. give consent to an examination of his claim by Russian
courts violated his rights under ART 6 of the European
ISSUE: Is the repair involved an act of state to be Convention and ART 1 of Protocol NO. 1 to the
exempted? Convention (these provisions pertain to right of access
The submitting court has accordingly rightly to the Courts).
considered whether conclusion of the repair contract is
to be regarded as a non-sovereign activity of the foreign ISSUE: Does the rule of State immunity from
State, and correctly answered this question in the jurisdiction restrict the exercise of the right of
affirmative. It is evident that the conclusion of a such a access to court?
contract does not fall within the core area of State
power. It is not, as against the view of the Federal RULING: [60] Such a limitation must pursue a
Minister for Justice, relevant whether conclusion of the legitimate aim and that State immunity was developed
contract was necessary for the orderly conduct of in international law out of the principle par in parem
embassy business and therefore recognizably connected non habet imperium, by virtue of which one State could
with the sovereign activity of the sending State. not be subject to the jurisdiction of another. The grant
Whether a State is due immunity does not depend on of immunity to a State in civil proceedings pursues the
the purpose of the activity that the State is pursuing by legitimate aim of complying with international law to
it. The demarcation of sovereign activity according to promote comity and good relations between States
the nature of the act and its classification in national through the respect of another State’s sovereignty.
law may not yet have secured the comprehensive
recognition indispensable for a general rule of public [61] The impugned restriction must also be
international law; it is however so widespread that any proportionate to the aim pursued. The Court observes
granting of immunity beyond that can no longer be that the application of absolute State immunity has, for
regarded as required by general international law. many years, clearly been eroded, in particular with the
adoption of the Convention on Jurisdictional
The "special issue of the immunity of diplomatic Immunities of States and their Property by the UN
General Assembly in 2004. ART 10 of its Draft
missions" is ofBaliong
no significance in the present case. The Articles endorsed the principle of RESTRICTIVE
Eunice Soriano | based on Atty. Pandi’s syllabus, discussions, slides, and the bookshaving
IMMUNITY, by Henriksen, Akehurst,
provided that and Shaw CANNOT
a State 113
exercise of German jurisdiction would not encroach on
diplomatic privileges and immunities. rely upon immunity from jurisdiction if it engages in a
commercial transaction with a foreign natural or
juridical person.
2019, EH 402) Jerusalem, 1961
Articles endorsed the principle of RESTRICTIVE Hill, an intelligence field site that supports US, UK and
IMMUNITY, having provided that a State CANNOT NATO communications. The US asserted immunity
rely upon immunity from jurisdiction if it engages in a against proceedings brought by Holland (she teaches
commercial transaction with a foreign natural or International Relations; enjoys the status of a technical
juridical person. respresentative under arrangements between UK and
the US regarding US forces in the UK) against
[66] The Draft Articles as now enshrined in the respondent relating to a memorandum which
2004 Convention apply under customary international respondent wrote in his capacity as educational services
law, even if the State in question, has not ratified that officer of the US base. The memorandum was headed
convention, provided it has not opposed it either. "Unacceptable Instructor Performance." In it the
respondent reported serious criticisms made by her
[64] IN this case, the court considers the grant students of Dr. Holland's performance and questioned
of immunity to a State in the present case pursued the her professional competence. He concluded with an
legitimate aim of complying with international law in official request that another instructor be assigned to
order to promote comity and good relations between complete the courses which her classes were currently
States through the respect of another State’s taking.
sovereignty.
Holland claims that it contained untrue,
[70] The domestic courts however, did not defamatory statements. She claims that exception from
undertake any analysis of the nature of the transaction immunity in Sec. 3 of the UK State Immunity Act
underlying the claim. They thus made no effort to relating to commercial transactions and contracts to be
establish whether the claim related to acts of the DPRK performed in the UK.
performed in the exercise of its sovereign authority or
as a party to a transaction of a private law nature. CRAIGHEAD: It is the nature of the act that
determines whether it is to be characterised as iuree
[72] Thus by rejecting the applicant’s claim imperii or iure gestionis. The act must be considered
without examination of the essence of the dispute, the in its context. The programme in Menwith Hill was
Russian courts failed to preserve a reasonable designed to serve the needs of US personnel on the
relationship of proportionality. They impaired the very base. The whole activity was designed as part of the
essence of the applicant’s right of access to Court.
process of maintaining forces and associated civilians
on the base by US personnel to serve the needs of US
 Today, it is well established that a foreign state military. Lampen-Wolfe’s memorandum was written
only enjoys immunity from a territorial state’s on the base in response to complaints which are alleged
exercise of adjudicative jurisdiction in relation to to have been made by US servicemen about the
sovereign or governmental acts (acts jure behaviour of Holland, who is also a US citizen. On
imperii) and NOT with regard to commercial or these facts, the acts of respondent seem to me to fall
private acts (acts jure gestionis). well within the area of sovereign activity.
 Unlike the era of absolute immunity then, a claim
of immunity is no longer solely dealt with on the It was stressed that appellant had the right to
basis of the identity of the defendant—rationae access to European courts under ART 6 of the ECHR.
personae—but at times also due to the subject However, this case concerns the immunity of a state,
matter of the case—rationae materiae. NOT the immunity of persons. The immunity is an
attribute of the state itself. Thus, ART 6 of the ECHR
HOLLAND v. LAMPEN-WOLFE (2001) must be interpreted with due regard to parliamentary
1 WLR 157 and diplomatic immunities traditionally recognised. I
vote to dimiss the appeal.
FACTS: The respondent is an official of the
COOKE: The provision by a state for its military
Department of Defense of the US. His responsibility
service personnel of general education courses leading
included the planning, development, and
to a university degree and enhancing their career
implementation of education programmes in Menwith
prospects both within and outside the service has
Hill, an intelligence field site that supports US, UK and
Eunice Soriano Baliong | basedThe
on Atty. probably
and the NOT been traditionally
Akehurst,regarded
and Shaw as 114
activity
NATO communications. USPandi’s syllabus,
asserted discussions, slides,
immunity books by Henriksen,
jure imperii. The activity is incidental to or collateral
against proceedings brought by Holland (she teaches
with the performance of traditional sovereign functions
International Relations; enjoys the status of a technical
regarding a state’s armed forces.
respresentative under arrangements between UK and
2019, EH 402) Jerusalem, 1961
prospects both within and outside the service has Respondent meanwhile, was an American
probably NOT been traditionally regarded as activity official, engaged in the supervision of the appellant in
jure imperii. The activity is incidental to or collateral her teaching function. It was in the course of his
with the performance of traditional sovereign functions supervisory work that he came to write and send the
regarding a state’s armed forces. memorandum which is the immediate subject of the
appellant's claim. Investigation of the claim would
The RESTRICTIVE THEORY OF involve a consideration of the appellant's performance
IMMUNITY, whereby, the trading or commercial of her duties and so inevitably of the nature and
activities of a state are not protected. But changing substance of the educational service which the State
concepts and circumstances may call on occasion for was providing for its armed forces and their families. I
some extension of the field of the doctrine. At the have come to the conclusion that the Court of Appeal
present day, I think, a state may reasonably claim to was correct in holding that this is a case which is
have welfare and educational responsibilities towards covered by state immunity.
the member of its armed forces. The state may
reasonably claim that it should not be subject to MILLET: Dr. Holland places much reliance
interference by other states or their courts. This is such on the facts that she is not a member of the armed
a case. The US having reasonably claimed immunity, I forces or a government employee but a civilian
agree that it should be upheld. employed by the University; that her services were
provided under a commercial contract between the
CLYDE: Distinction has to be made between claims University and the United States Government; that
arising out of acts done in the exercise of a State’s while her students were mainly members of the armed
sovereign authority and claims arising out of forces they also included their families and other
commercial transaction such as might be civilian personnel; and that the educational
undertaken by private individuals. The distinction is programmes which were provided were not directly
between matters JURE IMPERII and JURE related to military training or education but were
GESTIONIS. The RESTRICTIVE THEORY similar in all respects to those provided to civilian
adopted in the laws of the UL calls for this distinction students in Alabama.
to be made. Par in parem non habet imperium.
Sovereign states cannot claim jurisdiction over each These are relevant considerations, but I am not
other. persuaded that they are critical. I do not think that the
case can be regarded in the same light as a suit for
There is little to be gained by trying to fit the defamation in respect of a letter of complaint about the
case into a particular precedent or devise categories of quality of milk or entertainment supplied to the base by
situations why may or may not fall on the one side of local contractors. The fact that the services in question
the line or the other. It is the nature and character of were bought in rather than provided internally is not
the activity on which the claim is based which has to be decisive. Of greater significance are the facts that they
studied, rather than the motive or purpose of it. The were provided at United States military bases and
solution will turn upon an assessment of the particular involved only citizens of the United States. The courses
facts. were provided by and to United States citizens and
While it is true that the appellant was a civilian, were designed to complement military programmes and
the performance of her teaching obligations under the assist (inter alia) in the assessment of candidates for
contract involved the function of the state in the promotion. In today's conditions the education and
provision of instruction to the American forces and training of military personnel so as to make them fit for
their families. The teaching was being done at a US promotion or service overseas or to ease their transition
military base and it involved only citizens of that to civilian life on retirement from active service is a
country. As stated in USA v. Public Service Allaince, normal and necessary part of the maintenance of a
“while bare employment contracts are primarily nation's armed forces. In my opinion the standard of
commercial in nature, the management and operation of education which the United States affords its own
a military base is undoubtedly a sovereign activity.” servicemen and their families is as much a matter
Respondent within its own sovereign authority as is the

Eunice Soriano Baliong |meanwhile, was an
based on Atty. Pandi’s American
syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw
115
official, engaged in the supervision of the appellant in standard of medical care which it affords them. Neither
her teaching function. It was in the course of his ought to be subjected to the supervision or jurisdiction
supervisory work that he came to write and send the of another state.
memorandum which is the immediate subject of the
2019, EH 402) Jerusalem, 1961
within its own sovereign authority as is the standard of problematic because some sovereign function take
medical care which it affords them. Neither ought to be the nature of commercial stages
subjected to the supervision or jurisdiction of another That is why courts prefer the contextual approach,
state. because it considers the purpose, the nature, and the
The respondent was responsible for supervising circumstances, it applies everything. This is the stricter
the provision of educational services to members of the approach.
United States armed forces in the United Kingdom and Acts Deemed Non-Sovereign and Non-Immune in
their families. He published the material alleged to be Character (ART 2(1)(c) 2004 UN Convention):
defamatory in the course of his duties. If the provision
of the services in question was an official or 1. Any commercial contract or transaction for the
governmental act of the United States, then so was its sale of goods or supply of services
supervision by the respondent. I would hold that he was 2. Any contract for a loan or other transaction of a
acting as an official of the United States in the course financial nature including any obligation of
of the performance of its sovereign function of guarantee or of indemnity in respect of any such
maintaining its armed forces in this country. loan or transaction
3. Any other contract or transaction of a commercial,
Although the contract between the University industrial, trading or professional nature, but not
and the United States Government is a contract for the including a contract of employment of persons
supply of services and therefore a commercial contract
within the meaning of the section by virtue of section 6.1.2. STATE IMMUNITY AND VIOLATIONS
3(3)(a), the present proceedings do not relate to that OF INTERNATIONAL LAW
contract. They are not about the contract, but about the
memorandum. The fact that the memorandum A foreign state should NOT be able to assert state
complains of the quality of the services supplied under immunity in relation to violations of international law,
the contract means that the memorandum relates to the including human rights violations.
contract (which is why section 16(2) is satisfied.) But it
does not follow that the proceedings relate to the 6.1.3. EXCEPTIONS TO STATE IMMUNITY IN
contract, which is what section 3(1)(a) requires. In my THE UN CONVENTION ON
opinion the words "proceedings relating to" a JURISDICTIONAL IMMUNITIES OF
transaction refer to claims arising out of the transaction, STATES AND THEIR PROPERTIES (UN
usually contractual claims, and not tortious claims CJISP)
arising independently of the transaction but in the ART 5, UN CJISP
course of its performance.
State immunity. A State enjoys immunity, in respect of
Atty Pandi: It is very difficult to distinguish between itself and its property, from the jurisdiction of the courts of
sovereign acts and commercial acts. So there are tests another State subject to the provisions of the present
used to determine the act. Convention.
1) Private Individual Test—classic method of ART 10, UN CJISP

distinguishing between sovereign and commercial
acts. Ask if the activity is one that can be Commercial transactions 1. If a State engages in a
performed by a private individual. If the answer is commercial transaction with a foreign natural or juridical
“yes,” the activity is deemed to be commercial and person and, by virtue of the applicable rules of private
thus NOT immune. international law, differences relating to the commercial
2) Purpose Test- this is over inclusive, it can cover transaction fall within the jurisdiction of a court of another
anything and everything. State, the State cannot invoke immunity from that
3) Nature Test- we look at the transaction itself, and jurisdiction in a proceeding arising out of that commercial
if it involves commercial stages, then that’s no transaction.
longer a sovereign function; but this is also
2019, EH 402) Jerusalem, 1961
2. Paragraph 1 does not apply: interests of that State;

(a) in the case of a commercial transaction between States; (e) the employee is a national of the employer State at the
or time when the proceeding is instituted, unless this person
(b) if the parties to the commercial transaction have has the permanent residence in the State of the forum; or
expressly agreed otherwise. (f) the employer State and the employee have otherwise
agreed in writing, subject to any considerations of public
3. Where a State enterprise or other entity established by a policy conferring on the courts of the State of the forum
State which has an independent legal personality and is exclusive jurisdiction by reason of the subject-matter of the
capable of: proceeding.
(a) suing or being sued; and
(b) acquiring, owning or possessing and disposing of ART 12 UN CJISP
property, including property which that State has
authorized it to operate or manage, Personal injuries and damage to property. Unless
otherwise agreed between the States concerned, a State
is involved in a proceeding which relates to a commercial cannot invoke immunity from jurisdiction before a court of
transaction in which that entity is engaged, the immunity another State which is otherwise competent in a
from jurisdiction enjoyed by that State shall not be proceeding which relates to pecuniary compensation for
affected. death or injury to the person, or damage to or loss of
tangible property, caused by an act or omission which is
ART 11 UN CJISP alleged to be attributable to the State, if the act or omission
occurred in whole or in part in the territory of that other
Contracts of employment. 1. Unless otherwise agreed State and if the author of the act or omission was present in
between the States concerned, a State cannot invoke that territory at the time of the act or omission.
immunity from jurisdiction before a court of another State
which is otherwise competent in a proceeding which ART 13 UN CJISP
relates to a contract of employment between the State and
an individual for work performed or to be performed, in Ownership, possession, and use of property. Unless
whole or in part, in the territory of that other State. otherwise agreed between the States concerned, a State
cannot invoke immunity from jurisdiction before a court of
2. Paragraph 1 does not apply if: another State which is otherwise competent in a
(a) the employee has been recruited to perform particular proceeding which relates to the determination of:
functions in the exercise of governmental authority;
(b) the employee is: (a) any right or interest of the State in, or its possession or
(i) a diplomatic agent, as defined in the Vienna use of, or any obligation of the State arising out of its
Convention on Diplomatic Relations of 1961; interest in, or its possession or use of, immovable property
(ii) a consular officer, as defined in the Vienna situated in the State of the forum;
Convention on Consular Relations of 1963;
(iii) a member of the diplomatic staff of a (b) any right or interest of the State in movable or
permanent mission to an international immovable property arising by way of succession, gift or
organization or of a special mission, or is bona vacantia; or
recruited to represent a State at an
international conference; or (c) any right or interest of the State in the administration of
(iv) any other person enjoying diplomatic property, such as trust property, the estate of a bankrupt or
the property of a company in the event of its winding up.
immunity;
(c) the subject-matter of the proceeding is the recruitment, ART 14 UN CJISP
renewal of employment or reinstatement of an individual;
(d) the subject-matter of the proceeding is the dismissal or Intellectual and industrial property. Unless otherwise
termination of employment of an individual and, as agreed between the States concerned, a State cannot
determined by the head of State, the head of Government invoke immunity from jurisdiction before a court of
or the Minister for Foreign Affairs of the employer State, another State which is otherwise competent in a
such a proceeding would interfere with the security proceeding which relates to:
2019, EH 402) Jerusalem, 1961
(a) the determination of any right of the State in a patent, operated by a State and used, for the time being, only on
industrial design, trade name or business name, trademark, government non-commercial service.
copyright or any other form of intellectual or industrial
property which enjoys a measure of legal protection, even 3. Unless otherwise agreed between the States concerned, a
if provisional, in the State of the forum; or State cannot invoke immunity from jurisdiction before a
court of another State which is otherwise competent in a
(b) an alleged infringement by the State, in the territory of proceeding which relates to the carriage of cargo on board
the State of the forum, of a right of the nature mentioned in a ship owned or operated by that State if, at the time the
subparagraph cause of action arose, the ship was used for other than
government non-commercial purposes.
(a) which belongs to a third person and is protected in the
State of the forum. 4. Paragraph 3 does not apply to any cargo carried on
board the ships referred to in paragraph 2, nor does it apply
ART 15 UN CJISP to any cargo owned by a State and used or intended for use
exclusively for government non-commercial purposes.
Participation in companies or other collective bodies. 1.
A State cannot invoke immunity from jurisdiction before a 5. States may plead all measures of defence, prescription
court of another State which is otherwise competent in a and limitation of liability which are available to private
proceeding which relates to its participation in a company ships and cargoes and their owners.
or other collective body, whether incorporated or
unincorporated, being a proceeding concerning the 6. If in a proceeding there arises a question relating to the
relationship between the State and the body or the other government and non-commercial character of a ship
participants therein, provided that the body: owned or operated by a State or cargo owned by a State, a
certificate signed by a diplomatic representative or other
(a) has participants other than States or competent authority of that State and communicated to the
international organizations; and court shall serve as evidence of the character of that ship or
(b) is incorporated or constituted under the law of cargo.
the State of the forum or has its seat or principal
place of business in that State. ART 17 UN CJISP
2. A State can, however, invoke immunity from Effect of an arbitration agreement. If a State enters into
jurisdiction in such a proceeding if the States concerned an agreement in writing with a foreign natural or juridical
have so agreed or if the parties to the dispute have so person to submit to arbitration differences relating to a
provided by an agreement in writing or if the instrument commercial transaction, that State cannot invoke immunity
establishing or regulating the body in question contains from jurisdiction before a court of another State which is
provisions to that effect. otherwise competent in a proceeding which relates to:
ART 16 UN CJISP (a) the validity, interpretation or application of the

arbitration agreement;
Ships owned or operated by a State.
(b) the arbitration procedure; or
1. Unless otherwise agreed between the States concerned, a
State which owns or operates a ship cannot invoke (c) the confirmation or the setting aside of the award,
immunity from jurisdiction before a court of another State unless the arbitration agreement otherwise provides.
which is otherwise competent in a proceeding which
relates to the operation of that ship if, at the time the cause A. EMPLOYMENT CONTRACTS
of action arose, the ship was used for other than
government non-commercial purposes. All issues in relation to employment contracts are acts of
jure gestionis character and thus non-immune.
2. Paragraph 1 does not apply to warships, or naval
auxiliaries, nor does it apply to other vessels owned or ART 11 UN CJISP
2019, EH 402) Jerusalem, 1961
Contracts of employment. 1. Unless otherwise agreed tangible property, caused by an act or omission which is
between the States concerned, a State cannot invoke alleged to be attributable to the State, if the act or omission
immunity from jurisdiction before a court of another State occurred in whole or in part in the territory of that other
which is otherwise competent in a proceeding which State and if the author of the act or omission was present in
relates to a contract of employment between the State and that territory at the time of the act or omission.
an individual for work performed or to be performed, in
whole or in part, in the territory of that other State. TERRITORIAL TORT PRINCIPLE—but it does not
apply when the acts done are committed by the armed
2. Paragraph 1 does not apply if: forces of a state
(a) the employee has been recruited to perform particular
functions in the exercise of governmental authority; NOTE: This exception only covers wrongful conduct that
(b) the employee is: has occurred or been committed in the territory of the
(i) a diplomatic agent, as defined in the Vienna forum state where the author of the omission is also
Convention on Diplomatic Relations of 1961; present in the forum state.
(ii) a consular officer, as defined in the Vienna
Convention on Consular Relations of 1963; C. LEX SITUS RULE ON IMMOVABLE
(iii) a member of the diplomatic staff of a PROPERTIES
permanent mission to an international Lex situs rule—Immovable property forms an integral
organization or of a special mission, or is part of the forum state and therefore, not subject to other
recruited to represent a State at an laws.
international conference; or
(iv) any other person enjoying diplomatic ART 13(a), UN CJISP
immunity;
(c) the subject-matter of the proceeding is the recruitment, Ownership, possession, and use of property. Unless
renewal of employment or reinstatement of an individual; otherwise agreed between the States concerned, a State
(d) the subject-matter of the proceeding is the dismissal or cannot invoke immunity from jurisdiction before a court of
termination of employment of an individual and, as another State which is otherwise competent in a
determined by the head of State, the head of Government proceeding which relates to the determination of:
or the Minister for Foreign Affairs of the employer State,
such a proceeding would interfere with the security (a) any right or interest of the State in, or its possession or
interests of that State; use of, or any obligation of the State arising out of its
(e) the employee is a national of the employer State at the interest in, or its possession or use of, immovable property
time when the proceeding is instituted, unless this person situated in the State of the forum;
has the permanent residence in the State of the forum; or
NOTE: The exception does NOT alter the privileges and
(f) the employer State and the employee have otherwise
immunities a foreign state enjoys under other parts of
agreed in writing, subject to any considerations of public
international law with regard to its diplomatic missions and
policy conferring on the courts of the State of the forum
other representative offices.
exclusive jurisdiction by reason of the subject-matter of the
proceeding. 6.1.4. IMMUNITY FROM ENFORCEMENT
B. PECUNIARY COMPENSATION FOR DEATH Q: Why is immunity from enforcement considered “the
OR INJURY last bastion of State immunity?”
ART 12, UN CJISP Since the issue of immunity from enforcement
only arises after jurisdictional immunity has been dealt
Personal injuries and damage to property. Unless
with and a national court has decided against the foreign
otherwise agreed between the States concerned, a State
state.
cannot invoke immunity from jurisdiction before a court of
another State which is otherwise competent in a
proceeding which relates to pecuniary compensation for
death or injury to the person, or damage to or loss of
2019, EH 402) Jerusalem, 1961
Consequences Exclusive to Immunity from Enforcement: (iii) by a declaration before the court or by a
written communication after a dispute between the
1) A waiver of immunity from execution must be parties has arisen; or
expressed separately (ART 20, UN CISP)
2) Unlike immunity from adjudication, immunity (b) the State has allocated or earmarked property for the
from enforcement is by and large absolute satisfaction of the claim which is the object of that
3) It may very well be that a national court concludes proceeding; or
that a foreign State is not immune from
proceedings but is immune from any enforcement (c) it has been established that the property is specifically
measures. in use or intended for use by the State for other than
government non-commercial purposes and is in the
ART 18 UN CJISP territory of the State of the forum, provided that
postjudgment measures of constraint may only be taken
State immunity from pre-judgment measures of against property that has a connection with the entity
constraint. No pre-judgment measures of constraint, such against which the proceeding was directed.
as attachment or arrest, against property of a State may be
taken in connection with a proceeding before a court of ART 20 UN CJISP
another State unless and except to the extent that:
Effect of consent to jurisdiction to measures of
(a) the State has expressly consented to the taking of such constraint. Where consent to the measures of constraint is
measures as indicated: required under articles 18 and 19, consent to the exercise
of jurisdiction under article 7 shall not imply consent to the
(i) by international agreement; taking of measures of constraint.
(ii) by an arbitration agreement or in a written ART 21 UN CJISP
contract; or
Specific categories of property.
(iii) by a declaration before the court or by a
written communication after a dispute between the 1. The following categories, in particular, of property of a
parties has arisen; or State shall not be considered as property specifically in use
or intended for use by the State for other than government
(b) the State has allocated or earmarked property for the non-commercial purposes under article 19, subparagraph
satisfaction of the claim which is the object of that (c):
proceeding.
(a) property, including any bank account, which is
ART 19 UN CJISP used or intended for use in the performance of the
functions of the diplomatic mission of the State or
State immunity from post-judgment measures of its consular posts, special missions, missions to
constraint. No post-judgment measures of constraint, international organizations or delegations to
such as attachment, arrest or execution, against property of organs of international organizations or to
a State may be taken in connection with a proceeding international conferences;
before a court of another State unless and except to the
extent that: (b) property of a military character or used or
intended for use in the performance of military
(a) the State has expressly consented to the taking of such functions;
measures as indicated:
(c) property of the central bank or other monetary
(i) by international agreement; authority of the State;
(ii) by an arbitration agreement or in a written (d) property forming part of the cultural heritage of
contract; or the State or part of its archives and not placed or
intended to be placed on sale;
2019, EH 402) Jerusalem, 1961
(e) property forming part of an exhibition of clogged with hundreds of ships carrying cement, from
objects of scientific, cultural or historical interest other cement suppliers whom Nigeria also entered into
and not placed or intended to be placed on sale. contracts. Central Bank, then unilaterally directed its
2. Paragraph 1 is without prejudice to article 18 and article correspondent banks to adopt a series of amendments to
19, subparagraphs (a) and (b). ALL letters of credit issued in connection with the
cement contracts and notifed the suppliers that payment
Requisites of Enforcement Measures: will only be for those shipments approved by the
Central Bank, two months before their arrival.
1) The foreign state must have either expressly
consented to such measures or has allocated or Verlinden thus sued CB before the US District Court.
earmarked property for the satisfaction of the alleging that its actions constituted anticipatory breach
particular claim. of letter of credit, alleging jurisdiction under the
2) Post-judgment measures of enforcement can be Foreign Sovereign Immunities Act. Respondent moved
taken if the property in question is based in the to dismiss for lack of subject matter and personal
forum state and is specifically intended for jurisdiction.
commercial purposes
3) The enforcement measure is taken against property Issue: May a federal court, exercise subject matter
that “has a connection with the entity against jurisdiction over a suit brought by a foreign corporation
which the proceeding was directed.” [ART 19(c)] against a foreign sovereign?
Types of Property which due to their Purpose or Use are RULING:

Considered Non-Commercial and thus, Immune: RESTRICTIVE THEORY OF FOREIGN
1. Bank accounts for use in the performance of SOVEREIGN IMMUNITY. Under this theory,
functions of a diplomatic mission or consular post immunity is confined to suits involving the foreign
2. Military property sovereign’s public acts and does NOT extend to cases
3. Property of a central bank or other monetary arising out of a foreign state’s strictly commercial acts.
authority In the US, the “Foreign Sovereign Immunities Act”
4. Property that is part of the cultural heritage of the codifies as a matter of federal law, the restrictive theory
state or its archives of sovereign immunity. A foreign state is normally
5. Property that form part of an exhibition of objects immune from the jurisdiction of federal and state
of scientific, cultural, or historic interest courts, subject to a set of exceptions including actions
in which the foreign state has explicitly or impliedly
VERLINDEN B.V. v. CENTRAL BANK OF waived its immunity, and actions based upon
NIGERIA, 461 US 480 (1983) commercial activities of the foreign sovereign carried
US Supreme Court on in the United States or causing a direct effect in the
United States. When one of these or the other specified
Facts: Federal Republic of Nigeria and Verlinden, a exceptions applies, “the foreign state shall be liable in
Dutch corp., entered into a contract for the purchase of the same manner and to the same extent as a private
240,000 metric tons of cement by Nigeria. The individual under like circumstances.”
contract was to be governed by the laws of
Netherlands. Contract provides that Nigeria was to In enacting, the Foreign Sovereign Immunities Act,
establish an irrevocable, confirmed letter of credit for Congress expressly exercised its power to regulate
the total purchase price, but respondent Central Bank of foreign commerce.
Nigeria, an instrumentality of Nigeria improperly
established an unconfirmed letter of credit.
Verlinden, subcontracted with Interbuco, a

Liechtenstein Corp to purchase cement needed to fulfil
the contract. Meanwhile, Nigeria’s ports had become
clogged with hundreds of ships carrying cement, from
Eunice
other Sorianosuppliers
cement Baliong | based
whom on Nigeria alsosyllabus,
Atty. Pandi’s entered into
contracts. Central Bank, then unilaterally directed its
correspondent banks to adopt a series of amendments to
ALL letters of credit issued in connection with the
cement contracts and notifed the suppliers that payment
2019, EH 402) Jerusalem, 1961
JONES v. MINISTRY OF INTERIOR OF SAUDI powers, it does not expressly provide for the case
ARABIA, 2006 where suit is brought against the servants or agents,
House of Lords of UK officials, or functionaries of a foreign state in respect of
acts done by them as such in the foreign state. In such
Facts: The first action is in 2002, by Mr. Jones, issued a case, the foreign state is entitled to claim immunity
proceedings against the Ministry of Interior of the for its servants as it could if sued itself. The foreign
Kingdom of Saudi Arabia and Lieutenant Colonel state’s right to immunity cannot be circumvented by
Abdul Aziz, alleging assault, battery, trespass to suing its servants or agents.
person, false imprisonment, and torture. The Kingdom
claimed state immunity. The second action is by [10] In the UN Convention of 2004, this matter
Mitchell, Sampson, and Walker against four is expressly addressed in ART 2 where “State” is
defendants—the first two were police officers of the defined in (1)(b)(iv) to mean “representatives of the
kingdom, the third is a colonel in the Ministry of State acting in that capacity.” It is further provided, in
Interior, and deputy governor of a prison in which the ART 6(2)(b) that “a proceeding before a court of a
claimants were confined, and the fourth was the head of State shall be considered to have been instituted against
the Ministry of Interior. They allege assault and another State if that other State...is NOT named as a
negligence, torture by the first two defendants, which party to the proceeding but the proceeding in effect
the third and fourth defendants had caused or permitted, seeks to affect the property, rights, interests, or
or negligently failed to prevent. This was refused on activities of that other State.”
the ground of state immunity.
[11] While in some cases, there could be doubt
Issue: Whether the English court has jurisdiction to as to a sufficient connection with the state to entitle it to
entertain proceedings brought by claimants against a claim immunity for his conduct, this is not such a
foreign state and its officials at whose hands the acase. Abdul Aziz is sued as a servant or agent of the
claimants say they suffered systematic torture, in the Kingdom and there is NO SUGGESTION that his
territory of the foreign state? conduct complained of was NOT in discharge or
purported discharge of his duties as such. Meanwhile,
RULING: the four defendants in the second action were public
officials and the conduct complained of took place in
[LORD BRINGHAM OF CORNHILL] In the UK, police or prison premises and occurred during a
the 1978 Act has represented a marked relaxation of the prolonged process of interrogation concerning
ABSOLUTIONIST PRINCIPLE—“the courts of a accusations of terrorism and spying. There is again no
country will NOT implead a foreign sovereign, that is, suggestion that the defendants’ conduct was NOT in
they will not by their process make him against his will discharge or purported discharge of their public duties.
a party to legal proceedings whether the proceedings
involve process against his person or seek to recover [12] International law, does not requires, as a
from him specific property or damages.” condition of a state’s entitlement to claim immunity for
the conduct of its servant or agent, that the latter should
It was a relaxation prompted by the European have been acting in accordance with his instructions or
Convention on State Immunity, which showed that the authority. A state may claim immunity for ANY act for
British absolutist position had ceased to reflect the which it is, in international law, responsible, save
understanding of international law which prevailed in where an established exception applies.
most of the rest of the developed world.
[13] The Kingdom’s claim to immunity for
Although, not ratified by the UK, there is also itself and its servants or agents should succeed since (1)
the UN Convention on Jurisdictional Immunities of all the individual defendants were at material times
States and Their Property, powerfully demonstrates acting or purporting to act as servants or agents of the
international thinking on the point. Kingdom, (2) their acts were accordingly attributable to
[9] But while the 1978 Act govern the the Kingdom, (3) no distinction is made between the
immunity of separate entitites exercising sovereign claim against the kingdom and the claim against the
powers, it does not expressly provide for the case personal
Eunicesuit
where Soriano Baliong | based
is brought on Atty.
against the Pandi’s syllabus,
servants discussions, slides,
or agents, and the defendants, and (4)
books by Henriksen, none ofand
Akehurst, these
Shawclaims
122 falls
within any of the exceptions specified in the 1978 Act.
officials, or functionaries of a foreign state in respect of
acts done by them as such in the foreign state. In such [19] As for torture, I think it difficult to accept
a case, the foreign state is entitled to claim immunity that torture CANNOT be a governmental or official act,
2019, EH 402) Jerusalem, 1961
personal defendants, and (4) none of these claims falls and Liberian tankers owned by US interests traversing
within any of the exceptions specified in the 1978 Act. the South Atlantic, including Hercules, to avoid any
attacks on neutral shipping.
[19] As for torture, I think it difficult to accept
that torture CANNOT be a governmental or official act, But an Argentine military aircraft began to
since, under ART 1 of the Torture Convention torture circle the Hercules, and six minutes later, without
must, to qualify as such, be inflicted by or with the provocation, an Argentine plane began to bomb her.
connivance of a public official or other person acting in The master immediately hoisted a white flag, but a
an official capacity. second and third attack came.
[24] In light of the Arrest Warrant decision of Thus, respondents commenced action in the US
the ICJ that state immunity ratione personae can be District Court for damage sustained from the attack.
claimed for a serving foreign minister accused of They allege that the attack on the neutral ship violated
crimes against humanity; thus, even in such a context, international law, invoking the District Court’s
the international law prohibition of such crimes, having jurisdiction under the Alien Tort Statute which provides
the same standing as the prohibition of torture, does that “district courts shall have original jurisdiction of
NOT prevail. It follows that such a prohibition does any civil action by an alien for a tort only, committed in
NOT automatically override all other rules of violation of the law of nations or a treaty of the United
international law. The ICJ has made plain in States.”
Democratic Republic of Congo v. Rwanda (para. 64),
that breach of a jus cogens norm of international law Issue: Whether general admiralty and maritime
does NOT suffice to confer jurisdiction. jurisdiction provides a basis for obtaining jurisdiction
over petitioner for violations of international law.
[26] Furthermore, the UN Immunity
Convention of 2004 provides NO EXCEPTION from RULING: The District Court is correct in dismissing
immunity where civil claims are made based on acts of the action because the Foreign Sovereign Immunities
torture. Despite its embryonic status, this Convention Act of 1976 does NOT authorize jurisdiction over a
is the MOST authoritative statement available on the foreign state in this situation.
current international understanding of the limits of state
immunity in civil cases, and the absence of a torture or The FSIA provides the sole basis for obtaining
jus cogens exception is wholly inimical to the jurisdiction over a foreign state in federal court.
claimants’ contention. Exceptions to immunity in this act include 1) cases
involving the waiver of immunity, 2) commercial
activities occurring in the US or causing a direct effect
ARGENTINE REPUBLIC v. AMERADA HESS in this country 3) property expropriated in violation of
SHIPPING CORP, 488 US 428 (1989) international law, 4) inherited, gift, or immovable
US Supreme Court property located in the US, 4) and maritime linens. We
agree with the District Court that none of the FSIA’s
Facts: Two Liberian Corporations sued the Argentine exceptions applies on these facts.
Republic in a US District Court to recover damages for
a tort allegedly committed by its armed forces on the Responednts assert the FSIA exception for
high seas, in violation of international law. non-commercial torts, but this is limited by its terms
however, to those cases in which the damage or loss of
Respondent, United Carriers Inc., a Liberian property occurs in the US. IN this case, the injury
Corp. charted one of its oil tankers, Hercules, to occurred on the high seas.
respondent Amera Hess Corp., also a Liberian
corporation. The contract was executed in New York Respondents asserts that Hercules was
City. Amerada Hess used Hercules to transport crude transporting oil intended for use in this country, and
oil. On her return voyage, Great Britain and petitioner that the loss of the ship disrupted contractual payments
Argentine Republic were at war; thus the US officials, due in New York. Under the commercial activity
informed the two states of the location of US vessels exception to the FSIA, a foreign state may be liable for
and Liberian tankers owned by US interests traversing its commercial activities “outside the territory of the
Eunice
the Soriano
South Baliongincluding
Atlantic, | based on Atty. Pandi’s syllabus,
Hercules, to avoiddiscussions,
any slides,
US”andhaving
the books by Henriksen,
a “direct Akehurst,
effect” insideand
theShaw
US. 123
But the
attacks on neutral shipping. non-commercial exception, upon which respondents
rely, makes NO mention of “territory outside the US”
But an Argentine military aircraft began to or of “direct effects” in the US. Congress’ decision to
circle the Hercules, and six minutes later, without
2019, EH 402) Jerusalem, 1961
its commercial activities “outside the territory of the the foreign state.” The District Court dismissed for lack
US” having a “direct effect” inside the US. But the of subject-matter jurisdiction. The Court of Appeals
non-commercial exception, upon which respondents reversed, concluding that respondent husband’s
rely, makes NO mention of “territory outside the US” recruitment and hiring were “commercial activities”
or of “direct effects” in the US. Congress’ decision to upon which the Nelsons’ action was “based.”
use explicit language and not to do so indicates that
exception. Held: The Nelsons’ action is not “based upon a
commercial activity” within the meaning of the first
Respondents also contend that the FSIA is clause of § 1605(a)(2), and the Act therefore confers no
subject to international agreements to which the US jurisdiction over their suit.
was a party at the time of its enactment. But this only (a) This action is not “based upon” a
applies when international agreements “expressly commercial activity. A commercial activity may be
conflict with the immunity provisions of the FSIA.” “either a regular course of commercial conduct or a
They point to the Geneva Convention on the High Seas, particular commercial transaction or act,” the
and the Pan American Maritime Neutrality Convention, “commercial character of which shall be determined by
but these conventions only set forth substantive rules of reference to” its “nature” rather than its “purpose.” For
conduct and state that compensation shall be paid for there to be jurisdiction in this case, the Nelsons’ action
certain wrongs. They do NOT create private rights of must be “based upj” some “commercial activity” by
action for foreign corporations to recover compensation petitioners that had “substantial contact” with the US
from foreign states in US courts. within the meaning of the Act.
Although the Act does not define “based
SAUDI ARABIA v. NELSON, 507 US 349 (1993) US upon,” the phrase is most naturally read to mean those
Supreme Court elements of a claim that, if proven, would entitle a
plaintiff to relief under his theory of the case, and the
FACTS: The respondents Nelson, a married couple, statutory context confirms that the phrase requires
filed this action for damages against petitioners, the something more than a mere connection with, or
Kingdom of Saudi Arabia, a Saudi hospital, and the relation to, commercial activity. Even taking the
hospital’s purchasing agent in the United States, Nelsons’ allegations about respondent husband’s
Royspec Purchasing Services. Scott Nelson was a recruitment and employment as true, those facts alone
monitoring systems engineer at the hospital to insure entitle the Nelsons to nothing under their theory of the
safety. Sometime in March 1984, he discovered safety case.
defects in the oxygen and nitrous oxide lines that posed While these arguably commercial activities
fire hazards and otherwise endangered patients’ lives. may have led to the commission of the torts that
For several months, he repeatedly advised hospital allegedly injured the Nelsons, it is only those torts upon
officials of the safety defects and reported them to a which their action is “based” for purposes of the Act.
Saudi Commission. He was ignored. Instead, Saudi (b) Petitioners’ tortious conduct fails to qualify as
agents arrested him and transported him to a jail cell “commercial activity”
where he was allegedly shackled, tortured, and beaten, within the meaning of the Act. This Court has ruled that
and kept for four days without food. They alleged, the Act largely codifies the so-called “restrictive”
among other things, that respondent husband suffered theory of foreign sovereign immunity, Republic of
personal injuries as a result of the Saudi Government’s Argentina v. Weltover, Inc., 504 U. S. 607, 612, and
unlawful detention and torture of him and petitioners’ that a state engages in commercial activity under that
negligent failure to warn him of the possibility of theory where it exercises only those powers that can
severe retaliatory action if he attempted to report on- also be exercised by private citizens, rather than those
the-job hazards. powers peculiar to sovereigns, id., at 614.
The Nelsons asserted jurisdiction under the Under the restrictive theory as opposed to the
Foreign Sovereign Immunities Act of 1976, which absolute theory of foreign sovereign immunity, a state
confers jurisdiction where an action is “based upon a is immune from the jurisdiction of foreign courts as to
commercial activity carried on in the United States by its sovereign or public acts (jure imperii) but not as to
the foreign state.” The District Court dismissed for lack those that are private or commercial in character (jure
ofEunice
subject-matter jurisdiction. The Court of Appeals gestionis).
Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 124
reversed, concluding that respondent husband’s The intentional conduct alleged here (the Saudi
recruitment and hiring were “commercial activities” Government’s wrongful arrest, imprisonment, and
upon which the Nelsons’ action was “based.” torture of Nelson) boils down to abuse of the power of
the police. However monstrous such abuse undoubtedly
2019, EH 402) Jerusalem, 1961
those that are private or commercial in character (jure a very small group of representatives.
gestionis). individuals with certain
The intentional conduct alleged here (the Saudi high-level governmental
Government’s wrongful arrest, imprisonment, and position as well as by
torture of Nelson) boils down to abuse of the power of diplomatic representatives
the police. However monstrous such abuse undoubtedly on “special missions”
may be, a foreign state’s exercise of that power has Applies to BOTH official Does not apply to private
long been understood for purposes of the restrictive and private acts as well as acts but applies after the
theory as peculiarly sovereign in nature. The Nelsons’ to acts committed before representative leaves his or
argument that respondent husband’s mistreatment and while the representative her position for public acts
constituted retaliation for his reporting of safety occupied his or her public committed while in public
violations, and was therefore commercial in character, position. service.
does not alter the fact that the powers allegedly abused Q: Is the immunity offered to state representatives
were those of police and penal officers. In any event, absolute?
that argument goes to the purpose of petitioners’
It depends on the category of the representative.
conduct, which the Act explicitly renders irrelevant to
Extent of immunity differs substantially. Some
the determination of an activity’s commercial character.
representatives enjoy absolute immunity while others are
(c) The Nelsons’ attempt to claim failure to
limited. To determine what immunity a particular state
warn is merely a semantic ploy. A plaintiff could recast
representative is entitled to, it is crucial to identify the
virtually any claim of intentional tort committed by
category of state representative to which the representative
sovereign act as a claim of failure to warn. To give
belongs.
jurisdictional significance to this feint of language
would effectively thwart the Act’s manifest purpose to 6.2.1. IMMUNITY IF CERTAIN HIGH-
codify the restrictive theory of foreign sovereign RANKING REPRESENTATIVE
immunity. Cf. United States v. Shearer, 473 U. S. 52,
54–55 (opinion of Burger, C. J.). P. 363 Immunity of heads of state is derived from customary
international law.
6.2. IMMUNITIES OF STATE REPRESENTATIVES
They are immune from national jurisdiction because they CERTAIN QUESTIONS OF MUTUAL
“personify” the state on whose behalf they act and because ASSISTANCE IN CRIMINAL MATTERS,
they need protection from national jurisdiction in order to (DJIBOUTI v. FRANCE), 2008, ICJ
fulfil their functions as state representatives. FACTS:
One fateful October in 1995, the charred body
 A foreign minister can only perform his or her of Judge Barnard Borrel, a French national and the
official functions if the individual can travel freely Technical Adviser to the Ministry of Justice of Djibouti
and remain in constant communication with not was discovered 80 km from the city of Djibouti. His
only the home government but also with death, shrouded in mystery, left many details
diplomatic missions and representatives of other unexplained. Djibouti conducted a judicial
states investigation which concluded that the Judge
 Immunities are granted NOT for the personal committed suicide. France, meanwhile, undertook its
benefit of the representative, but so that the own investigation, in the French courts as Borrel’s
individual can fulfil his or her official functions. widow and children casted doubt on the alleged
“suicide.”
IMMUNITY RATIONAE IMMUNITY RATIONAE
Years later, in 2004, the procureur de la
PERSONAE MATERIAE
Republique of Djibouti, raised the possibility of
(“PERSONAL (“FUNCTIONAL
reopening the Borrel case within Djibouti’s courts.
IMMUNITY” IMMUNITY”)
Thus, Djibouti requested that the French judge handling
Flows from the position a Relates to functions the the case in the French courts, transmit the records of the
representative holds in a representative performs and case, pursuant to the Convention on Mutual
state and is only enjoyed by is enjoyed by ALL state Assistance in Criminal Matters of 1986. However,
France
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, rejected
and the this
books by requestAkehurst,
Henriksen, stating that “the Djibouti’s
and Shaw 125
request is not in the form required by the Convention
on Mutual Assistance in Criminal Matters between
France and Djibouti” and “is outside its framework”
and “without regard for its provisions”
2019, EH 402) Jerusalem, 1961
Assistance in Criminal Matters of 1986. However, investigating judge, Judge Clément, to the President of
France rejected this request stating that “the Djibouti’s the Republic of Djibouti on 17 May 2005 and 14
request is not in the form required by the Convention February 2007 respectively.
on Mutual Assistance in Criminal Matters between ⎯ The witness summons addressed to the
France and Djibouti” and “is outside its framework” Djiboutian Head of State on 17 May 2005
and “without regard for its provisions” The Court recalls that the investigating judge
Thus, Djibouti sent a second request for responsible for the Borrel case sent a witness summons
transmission of the Borrel file in the form of an to the President of Djibouti, on an official visit to
international letter rogatory. But the French judge France at the time, on 17 May 2005, simply by
refused to comply with the Djiboutan request saying facsimile to the Djiboutian Embassy in France, inviting
that “to accede would amount to an abuse of French him to attend in person at the judge’s office the
law by permitting the handing over of documents that following day. For Djibouti, this summons was not
are accessible only to the French judge,” and entail only inappropriate as to its form, but was, in the light of
“directly delivering Fench intelligence service Articles 101 and 109 of the French Code of Criminal
documents to a foreign political authority,” and would Procedure, an element of constraint. Djibouti has,
“seriously compromise the fundamental interests of the moreover, inferred from the absence of an apology and
country and the security of its agents.” from the fact that that summons was not declared void
Furthermore, the French judge had issued a that the attack on the immunity, honour and dignity of
summons to the President of Djibouti, the procurer de the Head of State has continued.
la Reublique and Head of National Security of Djibouti France, for its part, submits that the summoning of
to testify as an ordinary witness under French law. a foreign Head of State as an ordinary witness in no
Djibouti reacted to this invitation to testify recalling the sense constitutes an infringement of “the absolute
immunity of jurisdiction enjoyed by any incumbent nature of the immunity from jurisdiction and, even
Head of State. more so, from enforcement that is enjoyed by foreign
Thus, Djibouti filed an application before the Heads of State”. In its view, the witness summons
ICJ alleging that France, by issuing witness summonses addressed to the Djiboutian Head of State was purely
to the Djiboutan Head of State and Senior Djiboutan an invitation which imposed no obligation on him.
officials, breached the Treay of Friendship and The Court indicates that it has already recalled in
Cooperation, and the principles and rules governing the Arrest Warrant of 11 April 2000 (Democratic
the diplomatic privileges and immunities laid down by Republic of the Congo v. Belgium) case “that in
the Vienna Convention on Diplomatic Relations, and international law it is firmly established that . . .
the principles under customary international law certain holders of high-ranking office in a State,
relating to international immunities, as reflected by the such as the Head of State . . . enjoy immunities from
Convention on the Prevention and Punishment of jurisdiction in other States, both civil and criminal”
Crimes against Internationally Protected Persons, (Judgment, I.C.J. Reports 2002, pp. 20-21, para. 51). In
including Diplomatic Agents of 1973. its opinion, a Head of State enjoys in particular “full
ISSUE: Whether France violated the laws and immunity from criminal jurisdiction and
principles of international law on immunity of certain inviolability” which protects him or her “against any
high-ranking representatives of State by issuing act of authority of another State which would hinder
summons for them to testify in a criminal case within him or her in the performance of his or her duties”
French domestic criminal courts? (ibid., p. 22, para. 54). Thus the determining factor in
RULING: assessing whether or not there has been an attack on
III. THE ALLEGED ATTACKS ON THE the immunity of the Head of State lies in the subjection
IMMUNITY FROM JURISDICTION of the latter to a constraining act of authority.
OR THE INVIOLABILITY OF THE In the present case, the Court finds that the
DJIBOUTAN HEAD OF STATE [161- summons was not associated with the measures of
180] constraint provided for by Article 109 of the French
Djibouti calls into question two witness Code of Criminal Procedure; it was in fact merely an
summonses in the Borrel case, issued by the French invitation to testify which the Head of State could freely
investigating
Eunice judge,
Soriano Baliong Judge
| based on Clément,
Atty. Pandi’s todiscussions,
syllabus, the accept
slides, and or decline.
the books Consequently,
by Henriksen, Akehurst, andthe Court
Shaw 126holds
President of the Republic of Djibouti on 17 May 2005 that there was no attack by France on the immunities
and 14 February 2007 respectively. from criminal jurisdiction enjoyed by the Head of State.
⎯ The witness summons addressed to the However, the Court notes that the
Djiboutian Head of State on 17 May 2005 investigating judge, Judge Clément, addressed the
2019, EH 402) Jerusalem, 1961
accept or decline. Consequently, the Court holds that was transmitted through the intermediary of the
there was no attack by France on the immunities from authorities and in the form prescribed by law. The
criminal jurisdiction enjoyed by the Head of State. Court consequently considers that this measure cannot
However, the Court notes that the have infringed the immunities from jurisdiction
investigating judge, Judge Clément, addressed the enjoyed by the Djiboutian Head of State.
summons to Djibouti’s President notwithstanding the As for Djibouti’s argument, that the disclosure
formal procedures laid down by Article 656 of the to the media of confidential information regarding the
French Code of Criminal Procedure, which deals with second witness summons, in breach of the
the “written statement of the representative of a foreign confidentiality of the investigation, must be regarded as
Power”. The Court considers that by inviting a Head of an attack on the honour or the dignity of its Head of
State to give evidence simply through sending him a State, the Court indicates once again that it has not been
facsimile and by setting him an extremely short provided with probative evidence which would
deadline without consultation to appear at her office, establish that the French judicial authorities were the
the investigating judge failed to act in accordance with source behind the dissemination of the confidential
the courtesies due to a foreign Head of State. information at issue here.
Having taken note of all the formal defects II. THE ALLEGED ATTACKS ON THE
surrounding the summons under French law, the Court IMMUNTIED SAID TO BE ENJOYED
considers that these do not in themselves constitute a BY THE PROCURER DE LA
violation by France of its international obligations REPUBLIQUE AND THE NEAD OF
regarding the immunity from criminal jurisdiction and NATIONAL SECURITY OF
the inviolability of foreign Heads of State. DJIBOUTI. [181-200]
Nevertheless, the Court observes that an apology would The Court examines the four summonses as
have been due from France. témoins assistés addressed in 2004 and 2005 by French
The Court recalls, moreover, that the rule of judges to senior Djiboutian officials, Mr. Djama
customary international law reflected in Article 29 of Souleiman Ali and Mr. Hassan Said Khaireh,
the Vienna Convention on Diplomatic Relations, respectively procureur de la République and Head of
whereby receiving States are under the obligation to National Security of Djibouti. According to Djibouti,
protect the honour and dignity of diplomatic agents, these witness summonses violate international
necessarily applies to Heads of State. The Court obligations on immunities, both conventional and
observes, in this respect, that if it had been shown by deriving from general international law.
Djibouti that confidential information relating to the The Court recalls that in the event of summonses as
witness summons addressed to its President had been témoins assistés, the situation envisaged by French law
passed from the offices of the French judiciary to the is one where suspicions exist regarding the person in
media, such an act could have constituted, in the question, without these being considered sufficient
context concerned, not only a violation of French law, grounds to proceed with a “mise en examen”. The
but also a violation by France of its international person concerned is thus obliged to appear before the
obligations. However, the Court recognizes that it does judge, on pain of being compelled to do so by the law
not possess any probative evidence that would establish enforcement agencies (Art. 109 of the French Code of
that the French judicial authorities are the source Criminal Procedure).
behind the dissemination of the confidential Djibouti initially contended that the procureur de la
information in question. République and the Head of National Security
⎯ The witness summons addressed to the Djiboutian benefited from personal immunities from criminal
Head of State on 14 February 2007 jurisdiction and inviolability, before rejecting this
With respect to the second summons, the Court argument during the oral proceedings. It then argued in
finds that it was issued following the procedure laid terms of “functional immunity, or ratione materiae”.
down by Article 656 of the French Code of Criminal For Djibouti, it is a principle of international law that a
Procedure, and therefore in accordance with French person cannot be held as individually criminally liable
law. It notes that the consent of the Head of State is for acts performed as an organ of State, and while there
expressly sought in this request for testimony, which may be certain exceptions to that rule, there is no doubt
was transmitted
Eunice Soriano through
Baliong | based the intermediary
on Atty. Pandi’s of
syllabus, discussions, as the
slides, and to its applicability
books inAkehurst,
by Henriksen, the present
and case.
Shaw The
127Court
the authorities and in the form prescribed by law. The observes that such a claim is, in essence, a claim of
Court consequently considers that this measure cannot immunity for the Djiboutian State, from which the
have infringed the immunities from jurisdiction procureur de la République and the Head of National
enjoyed by the Djiboutian Head of State. Security would be said to benefit.
2019, EH 402) Jerusalem, 1961
as to its applicability in the present case. The Court of that State. Further, the State notifying a foreign court
observes that such a claim is, in essence, a claim of that judicial process should not proceed, for reasons of
immunity for the Djiboutian State, from which the immunity, against its State organs, is assuming
procureur de la République and the Head of National responsibility for any internationally wrongful act in
Security would be said to benefit. issue committed by such organs.
France, in replying to this new formulation of Given all these elements, the Court does not uphold
Djibouti’s argument, indicated that as functional the sixth and seventh final submissions of Djibouti.
immunities are not absolute, it is for the justice system
of each country to assess, when criminal proceedings It seems that immunity is breached when an obligation is
are instituted against an individual, whether, in view of imposed on the official.
the acts of public authority performed in the context of
his duties, that individual should enjoy, as an agent of
ARREST WARRANT OF 11 APRIL 2000
the State, the immunity from criminal jurisdiction that (DEMOCRATIC REPUBLIC OF CONGO v.
is granted to foreign States. According to France, the BELGIUM)
two senior officials concerned have never availed
themselves before the French criminal courts of the Facts: Congo filed in the Registry of the Court an
immunities which Djibouti claims on their behalf. Application instituting proceedings against the
The Court observes, initially, that it has not been Kingdom of Belgium in respect of a dispute concerning
“concretely verified” before it that the acts which were an “international arrest warrant issued on 11 April 2000
the subject of the summonses as témoins assistés issued by a Belgian investigating judge...against the Minister
by France were indeed acts within the scope of their for Foreign Affairs in office of the Democratic
duties as organs of State. It then points out that it is not Republic of the Congo, Mr. Abdulaye Yerodia
apparent from the terms of the final submissions of Ndombasi.” It charged him, as perpetrator or co-
Djibouti that the claim that Mr. Djama Souleiman Ali perpetrator with offences constituting gave breaches of
and Mr. Hassan Said Khaireh benefited from functional the Geneva Conventions of 1949 and of the Additional
immunities as organs of State still constitutes the only Protocols thereto, and with crimes against humanity.
or the principal argument being made by Djibouti. The arrest warrant was circulated internationally
The Court notes that there are no grounds in through Interpol. The crimes were punishable in
international law upon which it could be said that the Belgium under the Law of 16 June 1993 “concerning
officials concerned were entitled to personal the Punishment of Grave Breaches of the International
immunities, not being diplomats within the meaning of Geneva Conventions of 12 August 1949 and of
the Vienna Convention on Diplomatic Relations of Protocols I and II of 8 June 1977 Additional Thereto,”
1961, and the Convention on Special Missions of as amended by the Law of 19 February 1999
1969 not being applicable. “concerning the Punishment of Serious Violations of
The Court must also observe that at no stage have International Humanitarian Law” (hereinafter referred
the French courts (before which the challenge to to as the “Belgian Law.”
jurisdiction would normally be expected to be made), Congo alleged violation of the customary
nor indeed this Court, been informed by the international law concerning the absolute inviolability
Government of Djibouti that the acts complained of by and immunity from criminal process of incumbent
France were its own acts of the State of Djibouti and foreign ministers.
that the procureur de la République and the Head of Belgium contends that in the light of the fact
National Security were its organs, agencies or that Mr. Ndombasi is no longer either Minister for
instrumentalities in carrying them out. Foreign Affairs of the Congo or a minister occupying
The Court emphasizes that the State which seeks to any other position in the government of Congo, there is
claim immunity for one of its State organs is expected no longer a legal dispute between the parties.
to notify the authorities of the other State concerned,
thereby enabling the court of the forum State to ensure ISSUE: Will events occurring subsequent to the filing
that it does not fail to respect any entitlement to of an application (in this case, the fact that Mr.
immunity and might thereby engage the responsibility Ndombasi is no longer a foreign minister of Congo) has
rendered the application without object such that the
of that
Eunice State.
Soriano Further,
Baliong | basedthe
on State notifying
Atty. Pandi’s a foreign
syllabus, discussions, slides,
Courtandis
the
nobooks by Henriksen,
longer called uponAkehurst,
to giveand Shaw 128
a decision?
court that judicial process should not proceed, for
reasons of immunity, against its State organs, is RULING:
assuming responsibility for any internationally [32] This is not such a case. The change which
wrongful act in issue committed by such organs.
2019, EH 402) Jerusalem, 1961
rendered the application without object such that the must be in a position freely to do so whenever the need
Court is no longer called upon to give a decision? should arise. He or she must also be in constant
communication with the Government, and with its
RULING: diplomatic missions around the world, and be capable
[32] This is not such a case. The change which at any time of communicating with representatives of
occurred in the situation of Mr. Ndombasi has not other States.
ended the dispute and has not deprived the Application A Minister of Foreign Affairs, occupies a
of its object. Congo argues: 1) that the arrest warrant position such that, like the Head of State, or the Head
was and remains unlawful, and 2) asks the court to hold of Government, he or she is recognized under
the warrant unlawful, 3) thus providing redress for the international law as representative of the State solely
moral injury which the warrant allegedly caused to it; by virture of his or her office.
and 4) continues to seek the cancellation of the warrant. [54] In this respect, no distinction can be drawn
For its part, Belgium contends that it did not act in between acts performed by a Minister of Foreign
violation of international law. In view of the Court, it Affairs in an “official” capacity, and those claimed to
follows that the Application of the Congo is NOT now have been performed in a “private capacity,” of for that
without object and that accordingly the case is NOT matter, between acts performed before the person
moot. concerned assumed office as Minister for Foreign
[40] Despite the change of the professional situation of Affairs and acts committed during the period of office.
Mr. Ndombasi, the character of the dispute still Thus, if a Minister for Foreign Affairs is
concerns the lawfulness of the arrest warrant issued on arrested in another State on a criminal charge, he or she
11 April 2000 against a person who at that time was is clearly thereby prevented from exercising the
Minister for Foreign Affairs of the Congo. functions of his or her office. The consequences of
ISSUE: Does customary international law give such impediment to the exercise of those official
immunity to Ministers of Foreign Affairs? functions are equally serious, regardless of whether the
[51] International law has firmly established that, as Minister was, at the time of arrest, present in the
also diplomatic and consular agents, certain holders territory of the arresting State on an “official” visit, or
of high-ranking office in a State, such as the Head of a “private” visit, regardless of whether the arrest
State, Head of Government and Minister for Foreign relates to acts allegedly performed before the person
Affairs, enjoy immunities from jurisdiction in other became the Minister for Foreign Affairs or to acts
States, both civil, and criminal. performed while in office, and regardless of whether
[53] In customary international law, the immunities the arrest relates to alleged acts performed in an
accorded to Ministers for Foreign Affairs are NOT “official capacity” or a “private capacity.”
granted for their personal benefit, but to ensure the ISSUE: Is the immunity accorded to Ministers of
effective performance of their functions on behalf of Foreign Affairs inapplicable when they are suspected of
their respective States. In order to determine the extent having committed war crimes or crimes against
of these immunities, the Court must therefore first humanity?
consider the nature of the functions exercised by a RULING:
Minister for FOriegn Affairs. He or she is in charge of [58] The Court has carefully examined State practice,
his or her Government’s diplomatic activities and including national legislation and those few decisions
generally acts as its representative in international of national higher courts, but it has been unable to
negotiations and intergovernmental meetings. deduce from this practice that there exists under
Ambassadors and other diplomatic agents carry out customary international law any form of exception to
their duties under his or her authority. His or her acts the rule according immunity from criminal jurisdiction
may bind the State represented, and there is a and inviolability to incumbent Ministers for Foreign
presumption that a Minister for Foreign Affairs, simply Affairs, where they are suspected of having committed
by virtue of that office, has full powers to act on behalf war crimes, or crimes against humanity.
of the State. Even in the rules in the legal instruments
In the performance of these functions, he or she creating international criminal tribunals such as the
is frequently required to travel internationally, and thus Charter of the International Military Tribunal of
must be in a position freely to do so whenever the need Nuremberg, Statute of the International Criminal
should arise. He or she must also be in constant Tribunal
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the for the
books former Yugoslavia,
by Henriksen, Akehurst, and The
Shaw Statute
129 of
communication with the Government, and with its International Criminal Tribunal for Rwanda, and the
diplomatic missions around the world, and be capable Statute of the International Criminal Court; it finds that
at any time of communicating with representatives of these rules likewise do NOT enable it to conclude that
other States. any such an exception exists in customary international
2019, EH 402) Jerusalem, 1961
Nuremberg, Statute of the International Criminal countries, he ran thr sik of being arrested as a result of
Tribunal for the former Yugoslavia, The Statute of the arrest warrant issued against him by Belgium.
International Criminal Tribunal for Rwanda, and the [78] The Court finds that the issue against Mr. Abdule
Statute of the International Criminal Court; it finds that Yerodia Ndombasi of the arrest warrant of 11 April
these rules likewise do NOT enable it to conclude that 2000, and its international circulation, constituted
any such an exception exists in customary international violations of a legal obligation of the Kingdom of
law in regard to national courts. Belgium towards the Democratic Republic of the
Congo, in that they failed to respect the immunity from
[60] The Court emphasizes, that immunity from criminal jurisdiction and the inviolability which the
jurisdiction does not mean that they enjoy impunity in incumbent Minister for Foreign Affairs of the
respect of any crimes that they might have committed, Democratic Republic of the Congo enjoyed under
irrespective of their gravity. Immunity from criminal international law.
jurisdiction and individual criminal responsibility are
separate concepts. While jurisdictional immunity is CIVIL JURISDICTION CRIMINAL
procedural in nature, criminal responsibility is a JURISDICTION
question of substantive law. Jurisdictional immunity
may well bar prosecution for a certain period or for Acts performed in private Applies to BOTH acts
certain offences; it cannot exonerate the person to capacity do not seem to be done in an official as well
whom it applies from all criminal responsibility. immune from adjudicative as in private capacity,
jurisdiction and in relation to conduct
[61] Immunities enjoyed under international law by an performed BOTH before
incumbent or former Minister do not represent a bar to and during the period in
criminal prosecution in certain circumstances. Firstly, office
such persons enjoy no immunity under international
law in their own countries, and may thus be tried by There is need to distinguish There is NO NEED to
those countries’ courts in accordance with rules of between immunity from distinguish between
domestic law. Secondly, they will cease to enjoy jurisdiction and immunity immunity from
immunity from foreign jurisdiction if the State which from execution; the protection jurisdiction and immunity
they represent or have represented decides to waive that is less extensive. from execution
immunity. Thirdly, after a person ceases to hold the Protection is unavailable for Refers to ALL criminal
office of Minister for Foreign Affairs, he or she will no certain acts relating to: procedural measures in
longer enjoy the immunities accorded by international a.) Private immovable respect of foreign
law, in respect of acts committed prior or subsequent property representatives.
to his or her period of office, as well as in respect of b.) Succession in which the
acts committed during that period of office in a private official is involved as an
capacity. Fourthly, an incumbent or former Minister executor, administrator, heir,
for Foreign Affairs may be subject to criminal or legatee, private person,
proceedings before certain international criminal c.) Commercial activities
courts, where they have jurisdiction. exercised outside their official
functions
ISSUE: Was the issuance and circulation of the arrest
warrant a violation of this immunity? protection offered is parallel to
that enjoyed by diplomatic
RULING: [71] The warrant’s issue and international agents
circulation, given its nature and purpose, effectively
infringed Mr. Yerodia’s immunity as the Congo’s
incumbent Minister of FOriegn Affairs and furthermore
liable to affect the Congo’s conduct of its international Q: Does personal immunity offer absolute protection from
relations. In fact, on applying for a visa to go to two criminal jurisdiction?
countries, he ran
Eunice Soriano thr sik
Baliong of being
| based on Atty.arrested as a result
Pandi’s syllabus, of
the arrest warrant issued against him by Belgium.
[78] The Court finds that the issue against Mr. Abdule
Yerodia Ndombasi of the arrest warrant of 11 April
2000, and its international circulation, constituted
2019, EH 402) Jerusalem, 1961
No. See Arrest Warrant case for the four Courts reject the claim that an exception to immunity from
circumstances in which a minister of foreign affairs may civil proceedings could be made in relation to allegations
be criminally prosecuted. of the jus cogens prohibition against torture.
THE JONES v. MINISTRY OF INTERIOR OF

6.2.2. IMMUNITY OF OTHER STATE SAUDI ARABIA, 2006
REPRESENTATIVES House of Lords of UK
Only a limited number of state representatives enjoy Facts: The first action is in 2002, by Mr. Jones, issued
immunity for both official and private acts (immunity proceedings against the Ministry of Interior of the
rationae personae). All other state representatives are Kingdom of Saudi Arabia and Lieutenant Colonel
merely protected by immunity in relation to the acts Abdul Aziz, alleging assault, battery, trespass to
performed on behalf of the state they represent (immunity person, false imprisonment, and torture. The Kingdom
rationae materiae). claimed state immunity.
The second action is by Mitchell, Sampson,
 Motives of the State representative are immaterial; and Walker against four defendants—the first two were
as long as an act is performed by an individual police officers of the kingdom, the third is a colonel in
with official authority or under the color of official the Ministry of Interior, and deputy governor of a
authority, it is an official act. prison in which the claimants were confined, and the
 Acts that fall outside the official function of a state fourth was the head of the Ministry of Interior. They
representative (conduct ultra vires) is still deemed allege assault and negligence, torture by the first two
to be official acts if they are performed in a public defendants, which the third and fourth defendants had
capacity. caused or permitted, or negligently failed to prevent.
 Distinction between acts jure imperii and juri This was refused on the ground of state immunity.
gestionis is irrelevant for purposes of attribution Issue: Whether the English court has jurisdiction to
i.e. a representative who perfoms a entertain proceedings brought by claimants against a
commercial act on behalf of a state enjoys foreign state and its officials at whose hands the
immunity whereas the state does not (due claimants say they suffered systematic torture, in the
to the commercial character of the act) territory of the foreign state?
RULING:
FUNCTIONAL FUNCTIONAL [LORD BRINGHAM OF CORNHILL] In the UK,
IMMUNITY OF HIGH IMMUNITY OF NON- the 1978 Act has represented a marked relaxation of the
RANKING OFFICIALS HIGH-RANKING ABSOLUTIONIST PRINCIPLE—“the courts of a
OFFICIALS country will NOT implead a foreign sovereign, that is,
The forum state exercising Forum state is NOT obliged they will not by their process make him against his will
jurisdiction against a to consider the immunity of a party to legal proceedings whether the proceedings
foreign head of state, head other state representatives involve process against his person or seek to recover
of government, or a minister unless the foreign state from him specific property or damages.”
of foreign affairs is under invokes it. If the state of a It was a relaxation prompted by the European
an obligation to consider the non-high-ranking official Convention on State Immunity, which showed that the
issue of immunity and make wants to protect its own British absolutist position had ceased to reflect the
its own consideration of official, it must notify the understanding of international law which prevailed in
whether or not immunity forum state and assert that most of the rest of the developed world.
bars the proceedings the representative acted in Although, not ratified by the UK, there is also
an official capacity and the UN Convention on Jurisdictional Immunities of
should thus enjoy States and Their Property, powerfully demonstrates
immunity. If not, the international thinking on the point.
foreign state may proceed [9] But while the 1978 Act govern the
with the case. immunity of separate entitites exercising sovereign
powers, it does not expressly provide for the case
where suit is brought against the servants or agents,
officials, or functionaries of a foreign state in respect of
acts done by them as such in the foreign state. In such
a case, the foreign state is entitled to claim immunity

2019, EH 402) Jerusalem, 1961
powers, it does not expressly provide for the case that torture CANNOT be a governmental or official act,
where suit is brought against the servants or agents, since, under ART 1 of the Torture Convention torture
officials, or functionaries of a foreign state in respect of must, to qualify as such, be inflicted by or with the
acts done by them as such in the foreign state. In such connivance of a public official or other person acting in
a case, the foreign state is entitled to claim immunity an official capacity.
for its servants as it could if sued itself. The foreign [24] In light of the Arrest Warrant decision of
state’s right to immunity cannot be circumvented by the ICJ that state immunity ratione personae can be
suing its servants or agents. claimed for a serving foreign minister accused of
[10] In the UN Convention of 2004, this matter crimes against humanity; thus, even in such a context,
is expressly addressed in ART 2 where “State” is the international law prohibition of such crimes, having
defined in (1)(b)(iv) to mean “representatives of the the same standing as the prohibition of torture, does
State acting in that capacity.” It is further provided, in NOT prevail. It follows that such a prohibition does
ART 6(2)(b) that “a proceeding before a court of a NOT automatically override all other rules of
State shall be considered to have been instituted against international law. The ICJ has made plain in
another State if that other State...is NOT named as a Democratic Republic of Congo v. Rwanda (para. 64),
party to the proceeding but the proceeding in effect that breach of a jus cogens norm of international law
seeks to affect the property, rights, interests, or does NOT suffice to confer jurisdiction.
activities of that other State.” [26] Furthermore, the UN Immunity
[11] While in some cases, there could be doubt Convention of 2004 provides NO EXCEPTION from
as to a sufficient connection with the state to entitle it to immunity where civil claims are made based on acts of
claim immunity for his conduct, this is not such a torture. Despite its embryonic status, this Convention
acase. Abdul Aziz is sued as a servant or agent of the is the MOST authoritative statement available on the
Kingdom and there is NO SUGGESTION that his current international understanding of the limits of state
conduct complained of was NOT in discharge or immunity in civil cases, and the absence of a torture or
purported discharge of his duties as such. Meanwhile, jus cogens exception is wholly inimical to the
the four defendants in the second action were public claimants’ contention.
officials and the conduct complained of took place in
police or prison premises and occurred during a Exceptions to Immunity Rationae Materiae:
prolonged process of interrogation concerning
accusations of terrorism and spying. There is again no 1) Functional immunity from criminal jurisdiction
suggestion that the defendants’ conduct was NOT in may NOT ALWAYS apply in relation to official
discharge or purported discharge of their public duties. acts committed on the territory of the forum state.
[12] International law, does not requires, as a This is because of the jurisdictional priority of the
condition of a state’s entitlement to claim immunity for forum state on its own territory.
the conduct of its servant or agent, that the latter should 2) International crimes.
have been acting in accordance with his instructions or
authority. A state may claim immunity for ANY act for THE PINOCHET CASE (IN RE: PINOCHET),
which it is, in international law, responsible, save 1999, House of Lords of UK
where an established exception applies.
[13] The Kingdom’s claim to immunity for Facts: Senator Pinochet was Head of State of Chile; it
itself and its servants or agents should succeed since (1) is alleged that during his period, there took place in
all the individual defendants were at material times Chile various crimes against humanity for which he
acting or purporting to act as servants or agents of the was knowingly responsibile. In 1998, Pinochet was in
Kingdom, (2) their acts were accordingly attributable to UK receving medical treatment. The judicial
the Kingdom, (3) no distinction is made between the authorities of Spain issued international warrants for his
claim against the kingdom and the claim against the arrest to enable his extradition to Spain to face trial for
personal defendants, and (4) none of these claims falls those alleged offences.
within any of the exceptions specified in the 1978 Act.
[19] As for torture, I think it difficult to accept The Crown Prosecution Service, while accepting that a
foreign Head of State would, during his tenure of
that torture CANNOT office, be immune from arrest or trial in respect of the
Eunice Soriano Baliong | be a governmental
based on Atty. Pandi’s or official
syllabus, act,
discussions, slides, and the
matters books bycontends
alleged, Henriksen, that
Akehurst,
onceandheShaw 132to be
ceased
since, under ART 1 of the Torture Convention torture
must, to qualify as such, be inflicted by or with the Head of State, his immunity for crimes against
connivance of a public official or other person acting in humanity also ceased and he can be arrested and
an official capacity. prosecuted for such crimes committed during the period
2019, EH 402) Jerusalem, 1961
office, be immune from arrest or trial in respect of the respect to acts performed by such person in exercise of
matters alleged, contends that once he ceased to be his functions as a member of the mission, the
Head of State, his immunity for crimes against immunity shall continue to subsist.
humanity also ceased and he can be arrested and
prosecuted for such crimes committed during the period The continuing partial immunity of the
he was Head of State. ambassador after leaving his post is of a different king
from that enjoyed ratione personae while he was in
On the other side, Pinochet contends that his post. Since he is no longer the representative of the
immunity in respect of acts done whilst he was Head of foreign state he merits no particular privileges or
State persists even after he has ceased to be Head of immunities as a person. However, in order to preserve
State. the integrity of the activities of the foreign state during
the period when he was ambassador, it is necessary to
ISSUE: What is the immunity, if any, enjoyed by provide that immunity is afforded to his official during
Senator Pinochet as a past Head of State in respect of his tenure in post. If this were not done, the sovereign
the crimes against humanity for which his extradition immunity of the state could be evaded by calling in
was sought. question acts done during the previous ambassador’s
time.
RULING: It is a basic principle of international law
that one sovereign state (the forum state) does not A former head of state enjoys similar immunities,
adjudicate the conduct of a foreign state. The foreign ratione materiae, once he ceases to be head of state. He
state is entitled to procedural immunity from the too loses immunity ratione personae on ceasing to be
processes of the forum state…extends to both criminal head of state. He can be sued on his private
and civil liability. obligations. As ex head of state he cannot be sued in
respect of acts performed whilst head of state in his
The head of state is entitled to the same public capacity. Thus, at common law, the position of
immunity as the state itself. The diplomatic the former ambassador and the former head of state
representative of the foreign state in the forum state is appears to be much the same: BOTH enjoy immunity
also afforded the same immunity in recognition of the for acts done in performance of their respective
dignity of the state which he represents. This immunity functions whilst in office.
enjoyed by a head of state in power and an ambassador
in post is a complete immunity attaching to the ISSUE: Whether the alleged organization of state
person of the head of state or ambassador rendering torture by Senator Pinochet (if proved) would constitute
him immune from all actions or prosecutions whether an act committed as part of his official functions as
or not they relate to matters done for the benefit of the head of state? Can it be said that the commission of a
state. Such immunity is to be granted ratione crime which is an international crime against humanity
personae. and just cogens, is an act done in an official capacity
on behalf of the state?
What then when the ambassador leaves his
post or the head of state is deposed? The position of RULING: No. The implementation of torture as
the ambassador is covered by the Vienna Convention defined by the Torture Convention cannot be a state
on Diplomatic Relations, ART 39(1) provides that the function. This is the view taken by Sir Arthur Watts:
ambassador’s privileges shall be enjoyed from the
moment he takes up post; and subsection (2) provides: States are artificial legal persons: they can only act
through the institutions and agencies of the state, which
When the functions of a person enjoying privileges and means, ultimately through its officials and other
immunities have come to an end, such privileges and individuals acting on behalf of the state, which means,
immunities shall normally cease at the moment when ultimately through its officials and other individuals
he leaves the country, or an expiry of a reasonable acting on behalf of the state. For international conduct
period in which to do so, but shall subsist until that which is so serious as to be tainted with criminality to
time, even in case of armed conflict. However, with be regarded as attributable only to the impersonal state
respect to acts performed by such person in exercise and not to the individuals who are ordered or
ofEunice
his Soriano Baliong
functions as |abased on Atty.of
member Pandi’s
the syllabus,
mission,discussions,
the slides, and the books by Henriksen, Akehurst, and Shaw 133
perpetrated is both unrealistic and offensive to common
immunity shall continue to subsist. notions of justice.
The continuing partial immunity of the The idea that individuals who commit international
ambassador after leaving his post is of a different king
2019, EH 402) Jerusalem, 1961
and not to the individuals who are ordered or signatory states should have jurisdiction to try official
perpetrated is both unrealistic and offensive to common torture (as defined in the Convention) even if such
notions of justice. torture were committed in Chile which gives rise to
immunity ratione materiae because such actions are
The idea that individuals who commit international contrary to international law, Chile has agreed to
crimes are internationally accountable for them has outlaw such onduct and Chile had agreed with the
now become an accepted part of international law. other parties to the Torture Convention that all
Problems in this area—such as the non-existence of any signatory states should have jurisdiction to try official
standing international tribunal to have jurisdiction over torture (as defined in the Convention) even if such
such crimes, and the lack of agreement as to what acts torture were committed in Chile.
are internationally criminal for this purpose—have not
affected the general acceptance of the principle of
individual responsibility for international criminal AL-ADSANI v. UK,
conduct. European Court of Human Rights
As a matter of general customary international law, a Facts: Applicant is a trained pilot, who went to Kuwait
head of state will personally be liable to account if in 1991 to assist in the defence against Iraq. During the
there is sufficient evidence that he authorized or Gulf War, he served as a member of the Kuwaiti Air
perpetrated such serious international crimes. Force, and after the Iraqi invasion, remained behind as
a member of the resistance movement. He came into
The Torture Convention provided a worldwide possession of sex videotapes involving the Sheikh of
universal jurisdiction. It required all member states to Kuwait. By some means, these tapes entered general
ban and outlaw torture 9ART 2). How can it be for circulation, for which the applicant was held
international law purposes, an official function to do responsible by the Sheikh.
something which international law itself prohibits and
criminalises? An essential feature of the international When the Iraqi armed forces were expelled from
crime of torture is that it must be committed “by or Kuwait, the Sheikh and two other entered applicant’s
with the acquiescence of a public official or other house, beat him and took him at gunpoint in a
person acting in an official capacity.” As a result, all government jeep to Kuwaiti State Security Prison
defendants in torture cases will be state officials. If the where he was detained for several days and repeatedly
implementation of the torture regime is to be treated as beaten. He was released after being forced to sign a
official business sufficient to justify immunity for the false confession. Subsequently, he was again taken by
former head of state, it must also be official business the Sheikh at gunpoint to the palace where his head was
sufficient to justify immunity for his inferiors who repeatedly held underwater in a a swimming pool of
actually did the torturing. Therefore, the whole corpses and dragged into a small room where the
elaborate structure of universal jurisdiction over Sheikh set fire to mattresses soacked in petrol, as a
torture…is rendered abortive and one of the main result of which, the applicant was seriously burnt.
objectives of the Torture Convention—to provide a
He was treated on his return to England where he
system under which there is no safe haven for
continually received threats warning him not to take
tortures—will have been frustrated. All thee factors
action. He suffered psychological damage and severe
demonstrate that the notion of continued immunity for
form of post-traumatic stress disorder. He filed a civil
ex-heads of state is inconsistent with the provisions of
suit but UK granted immunity to Kuwait.
the Torture Convention.
The applicant contends that the UK had failed to secure
If, as alleged, Senator Pinochet organized and
his right NOT to be tortured, contrary to ART 3 of the
authorized torture, he was not acting in any capacity
ECHR read in conjunction with ART 1 and 13.
which gives rise to immunity ratione materiae because
such actions are contrary to international law, Chile has Article 3 provides: “No one shall be subjected to
agreed to outlaw such onduct and Chile had agreed torture or to inhuman or degrading treatment or
with the other parties to the Torture Convention that all punishment.”
signatory states
Eunice Soriano should
Baliong haveonjurisdiction
| based to try official
Atty. Pandi’s syllabus, Article
discussions, slides, 1 provides:
and the “The High
books by Henriksen, Contracting
Akehurst, Parties
and Shaw 134 shall
torture (as defined in the Convention) even if such secure to everyone within their jurisdiction the rights
torture were committed in Chile. and freedoms defined in Section I of [the] Convention.”
Article 13 provides: “Everyone whose rights and

2019, EH 402) Jerusalem, 1961
Article 1 provides: “The High Contracting Parties remedy to the applicant in respect of torture allegedly
shall secure to everyone within their jurisdiction the carried out by the Kuwaiti authorities.
rights and freedoms defined in Section I of [the]
Convention.” [41] It follows that there has been no violation of
ART 3 of the Convention in the present case.
Article 13 provides: “Everyone whose rights and
freedoms as set forth in [the] Convention are violated 6.3 THE ACT OF STATE DOCTRINE
shall have an effective remedy before a national
authority notwithstanding that the violation has been UNDERHILL v. HERNANDEZ
committed by persons acting in an official capacity.” 168 US 250 (1897)
US Supreme Court
ISSUE: Did UK fail to secure the applicant’s right not
to be tortured, contrary to ART 3 of the European
Facts: In 1892, a revolution was initiated in Venezuela
Convention, when it granted immunity from civil suit
to Kuwait? against the administration in which the revolutionists
claimed to be the legitimate government. Hernandez
RULING: No. [38] Where an individual raises an belonged to the anti-administration party and
arguable claim that he has been seriously ill-treated by commanded its forces in Bolivar. An engagement took
the police or other such agents of the State unlawfully place between the two armies in which the troops of
and in breach of ART 3, that provision, read in Hernandez prevailed. He entered Bolivar and assumed
conjunction with the State’s general duty under ART 1 command. He became the civil and military chief of
of the Convention, to “secure to everyone within their the city. The Crespo government was formally
jurisdiction the rights and freedoms defined in…[the] recognized as the legitimate government of Venezuela.
Convention,” requires by implication that there should
be an effective official investigation. However, in each Under contract with the government, Underhill, a
case, the State’s obligation applies only in relation to citizen of the US constructed a water works system for
ill-treatment allegedly committed within its Bolivar. He applied to Hernandez, for a passport to
jurisdiction. leave the city; it was initially refused but eventually
granted and Underhill left the country. Prior to its
[39] ART 3 has some, limited, extraterritorial grant, Underhill alleged detention caused by the refusal
application, to the extent that the decision by a to grant, the alleged confinement of Underhill to his
contracting state to expel an individual might engage own house, and certain alleged assaults and affronts by
the responsibility of that State under the Convention, the soldiers of Hernandez’ army.
where substantial grounds had been shown for
believing that the person concerned, if expelled, faced a RULING: The acts complained of were the acts of a
real risk of being subjected to torture or to inhuman or military commander representing the authority of the
degrading treatment or punishment in the receiving revolutionary party as a government, which afterwards
country. In so far as liability under the Convention succeeded and was recognized by the United States.
might be incurred in such circumstances, it would have We think the circuit court of appeals was justified in
been incurred by the expelling Contracting State by concluding "that the acts of the defendant were the acts
reason of its having taken action which had as a direct of the government of Venezuela, and as such are not
consequence the exposure of an individual to properly the subject of adjudication in the courts of
proscribed ill-treatment. another government."
[40] The applicant does not contend that the alleged
torture took place within the jurisdiction of the United If the party seeking to dislodge the existing government
Kingdom or that the United Kingdom authorities had succeeds, and the independence of the government it
any causal connection with its occurrence. In these has set up is recognized, then the acts of such
circumstances it cannot be said that the High government, from the commencement of its existence,
Contracting Party was under a duty to provide a civil are regarded as those of an independent nation. If the
political revolt fails of success, still, if actual war has
remedy to the applicant in respect of torture allegedly been waged, acts of legitimate warfare cannot be made
the and theof
basis books by Henriksen,
individual Akehurst, and Shaw 135
liability.
carried out by the Kuwaiti authorities.
The evidence upon the trial indicated that the purpose

of the defendant in his treatment of the plaintiff was to
2019, EH 402) Jerusalem, 1961
political revolt fails of success, still, if actual war has that does not rest upon the asserted invalidity of an
been waged, acts of legitimate warfare cannot be made official act of a foreign sovereign, but that does require
the basis of individual liability. imputing to foreign officials an unlawful motivation
(the obtaining of bribes) in the performance of such an
The evidence upon the trial indicated that the purpose official act?
of the defendant in his treatment of the plaintiff was to
coerce the plaintiff to operate his waterworks and his RULING: the doctrine as an expression of
repair works for the benefit of the community and the international law, resting upon "the highest
revolutionary forces," and that "it was not sufficient to considerations of international comity and
have warranted a finding by the jury that the defendant expediency," We have more recently described it,
was actuated by malice or any personal or private however, as a consequence of domestic separation of
motive," and we concur in its disposition of the rulings powers, reflecting "the strong sense of the Judicial
below. Branch that its engagement in the task of passing on the
validity of foreign acts of state may hinder" the conduct
of foreign affairs.
W.S. KIRKPATRICK & CO. v.
ENVIRONMENTAL TECTONICS CORP. There are possible exceptions to the application
of the doctrine such as: 1) acts of state that consist of
Facts: Harry Carpenter, then Chairman of the Board commercial transactions, since neither modern
and Chief Executive Officer of petitioner, W.S. international comity nor the current position of our
Kirkpatrick and Co. learned that the Republic of Executive Branch accorded sovereign immunity to such
Nigeria was interested in contracting for the acts, see Alfred Dunhill of London, Inc. v. Republic of
construction and equipment of an aeromedical center at Cuba, 2) or an exception for cases in which the
an air force in Nigeria. Arrangements were made Executive Branch has represented that it has no
between Akindele, a Nigerian citizen, who would objection to denying validity to the foreign sovereign
secure the contract for Kirkpatrick. It was agreed that act, since then the courts would be impeding no foreign
in the event the contract was awarded, Kirkpatrick policy goals, see First National City Bank v. Banco
would pay to two Panamanian entities controlled by Nacional de Cuba.
Akindele, a “commission” equal to 20% the contract
price, which would in turn be given as a bribe to We find it unnecessary however, to pursue
officials of the Nigerian Government. those inquiries, since the factual predicate for
application of the act of state doctrine does not exist.
True enough, the contract was awarded to petitioner, Nothing in the present suit requires the court to declare
and the latter paid the commission to the appointed invalid, and thus ineffective as "a rule of decision for
Panamanian entitites and those funds were disbursed as the courts of this country.
bribes.
Petitioners point out, however, that the facts
An unsuccessful bidder of the contract learned of the necessary to establish respondent's claim will also
20% “commission” and brought the matter to the establish that the contract was unlawful. Specifically,
Nigerian air Force and the US Embassy. Following an they note that, in order to prevail, respondent must
investigation by the FBI, the US brought charges prove that petitioner Kirkpatrick made, and Nigerian
against both Kirkpatrick and Carpenter for violation of officials received, payments that violate Nigerian law,
the Foreign Corrupt Practices Act. Respondent then which would, they assert, support a finding that the
brought this civil action in the US District Court contract is invalid under Nigerian law. Assuming that
against Carpenter, Akindele, petitioners. Defendants to be true, it still does not suffice. The act of state
moved to dismiss on the ground that the action was doctrine is not some vague doctrine of abstention, but a
barred by the act of state doctrine. "principle of decision binding on federal and state
courts alike.”
Issue: Whether the act of state doctrine bars a court in
the United States from entertaining a cause of action Act of state issues only arise when a court must
that does not rest upon the asserted invalidity of an decide -- that is, when the outcome of the case turns
Eunice Soriano
official act of aBaliong
foreign| based on Atty. but
sovereign, Pandi’s
thatsyllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 136
does require upon -- the effect of official action by a foreign
imputing to foreign officials an unlawful motivation sovereign. When that question is not in the case, neither
(the obtaining of bribes) in the performance of such an is the act of state doctrine. That is the situation here.
official act? Regardless of what the court's factual findings may
2019, EH 402) Jerusalem, 1961
decide -- that is, when the outcome of the case turns ALFRED DUNHILL OF LONDON INC. v.
upon -- the effect of official action by a foreign REPUBLIC OF CUBA
sovereign. When that question is not in the case, neither
is the act of state doctrine. That is the situation here. FACTS: . In 1960, the Cuban Government confiscated
Regardless of what the court's factual findings may the business and assets of the five leading
suggest as to the legality of the Nigerian contract, its manufacturers of Havana cigars. These companies,
legality is simply not a question to be decided in the three corporations and two partnerships, were
present suit, and there is thus no occasion to apply the organized under Cuban law. Virtually all of their
rule of decision that the act of state doctrine requires. owners were Cuban nationals. None was American.
The issue in this litigation is not whether [the alleged] These companies sold large quantities of cigars to
acts are valid, but whether they occurred. customers in other countries, including the United
States, where the three principal importers were
Petitioners insist, however, that the policies Dunhill, Saks & Co. (Saks), and Faber, Coe & Gregg,
underlying our act of state cases -- international comity, Inc. (Faber). The Cuban Government named
respect for the sovereignty of foreign nations on their "interventors" to take possession of and operate the
own territory, and the avoidance of embarrassment to business of the seized Cuban concerns. Interventors
the Executive Branch in its conduct of foreign relations continued to ship cigars to foreign purchasers,
-- are implicated in the present case because, as the including the United States importers.
District Court found, a determination that Nigerian
officials demanded and accepted a bribe "would The former owners of the Cuban companies, most of
impugn or question the nobility of a foreign nation's whom had fled to the United States, brought various
motivations," and would "result in embarrassment to actions against the three American importers for
the sovereign or constitute interference in the conduct trademark infringement and for the purchase price of
of foreign policy of the United States. any cigars that had been shipped to importers from the
seized Cuban plants and that bore United States
We should not attach dispositive significance trademarks claimed by the former owners to be their
to the fact that this suit involves only the motivation property.
for, rather than the validity of a foreign sovereign act.
IN any case, the letter from the legal adviser to the Both the former owners and the intervenors asserted
District Court gives sufficient indication that, “in the their right to some post-intervention shipments which
setting of this case,” the act of state doctrine poses no the importers paid to intervenors subsequent to the
bar to adjudication. intervention on the assumption that intervenors were
entitled to collect the accounts receivable of the
The short of the matter is this: Courts in the intervened businesses. The former owners claimed title
United States have the power, and ordinarily the to and demanded payment of these accounts.
obligation, to decide cases and controversies properly
presented to them. The act of state doctrine does not The importers then claimed that they were entitled to
establish an exception for cases and controversies that recover the payments from the interventors by way of
may embarrass foreign governments, but merely setoff or counterclaim. The interventors countered with
requires that, in the process of deciding, the acts of the contention that any repayment obligation was
foreign sovereigns taken within their own jurisdictions a quasi-contractual debt whose situs was in Cuba, and
shall be deemed valid. That doctrine has no application that their refusal to pay was an act of state not subject
to the present case, because the validity of no foreign to question in American courts.,
sovereign act is at issue.
ISSUE: Whether the failure of respondents to return to
petitioner Alfred Dunhill of London, Inc. (Dunhill),
funds mistakenly paid by Dunhill for cigars that had
been sold to Dunhill by certain expropriated Cuban
cigar businesses was an "act of state" by Cuba
precluding an affirmative judgment against
respondents.
RULING: the concept of an act of state should137
not be
extended to include the repudiation of a purely
commercial obligation owed by a foreign sovereign or
by one of its commercial instrumentalities.
2019, EH 402) Jerusalem, 1961
respondents. 6.4 IMMUNITY FROM ENFORCEMENT

ART 31, Vienna Convention on Diplomatic Relations
RULING: the concept of an act of state should not be [VCDR] (KEY PROVISION on jurisdictional
extended to include the repudiation of a purely protection)
commercial obligation owed by a foreign sovereign or
by one of its commercial instrumentalities. It is, we 1.A diplomatic agent shall enjoy immunity from the
think, a sound principle, that, when a government criminal jurisdiction of the receiving State. He shall also
becomes a partner in any trading company, it divests enjoy immunity from its civil and administrative
itself, so far as concerns the transactions of that jurisdiction, except in the case of:
company, of its sovereign character, and takes that of a
(a) A real action relating to private immovable property
private citizen. Instead of communicating to the
situated in the territory of the receiving State, unless he
company its privileges and its prerogatives, it descends
holds it on behalf of the sending State for the purposes of
to a level with those with whom it associates itself, and
the mission;
takes the character which belongs to its associates, and
to the business which is to be transacted." (b) An action relating to succession in which the
diplomatic agent is involved as executor, administrator,
A line should be drawn in defining the outer limits of
heir or legatee as a private person and not on behalf of the
the act of state concept, and that repudiations by a
sending State;
foreign sovereign of its commercial debts should not be
considered to be acts of state beyond legal question in (c) An action relating to any professional or commercial
our courts. activity exercised by the diplomatic agent in the receiving
State outside his official functions.
The major underpinning of the act of state doctrine is
the policy of foreclosing court adjudications involving 2.A diplomatic agent is not obliged to give evidence as a
the legality of acts of foreign states on their own soil witness.
that might embarrass the Executive Branch of our
Government in the conduct of our foreign relations. we 3.No measures of execution may be taken in respect of a
are in no sense compelled to recognize as an act of state diplomatic agent except in the cases coming under
the purely commercial conduct of foreign governments subparagraphs (a), (b) and (c) of paragraph 1 of this article,
in order to avoid embarrassing conflicts with the and provided that the measures concerned can be taken
Executive Branch. On the contrary, for the reasons to without infringing the inviolability of his person or of his
which we now turn, we fear that embarrassment and residence.
conflict would more likely ensue if we were to require
that the repudiation of a foreign government's debts 4.The immunity of a diplomatic agent from the jurisdiction
arising from its operation of a purely commercial of the receiving State does not exempt him from the
business be recognized as an act of state and jurisdiction of the sending State.
immunized from question in our courts.
THE “ARA LIBERTAD” (ARGENTINA v.
Repudiation of a commercial debt cannot, consistent GHANA) International Tribunal for the Law of the
with this restrictive approach to sovereign immunity, be Sea, 15 December 2012
treated as an act of state; for if it were, foreign
governments, by merely repudiating the debt before or FACTS: Argentina filed with the tribunal a request for
after its adjudication, would enjoy an immunity which the prescription of provisional measures under ART
our Government would not extend them under 290 (5) of the Convention in a dispute concerning the
prevailing sovereign immunity principles in this “detention by Ghana...of the warship ‘ARA Fragata
country. This would undermine the policy supporting Libertad;’”
the restrictive view of immunity, which is to assure
those engaging in commercial transactions with foreign Argentina, requested the arbitral tribunal to declare that
sovereignties that their rights will be determined in the the Republic of Ghana, by detaining the warship Ara
courts whenever possible. Fragata Libertad, keeping it detained, not allowing it to
refuel and adopting several judicial measures against

138
it: 1) violates the international obligation of respecting
the immunities from jurisdiction and execution enjoyed
by such vessel pursuant to ART 32 of UNCLOS and
ART 3 of the 1926 Convention for the Unification of
2019, EH 402) Jerusalem, 1961
refuel and adopting several judicial measures against it: State whose flag it flies; and in accordance with general
1) violates the international obligation of respecting the international law, a warship enjoys immunity, including
immunities from jurisdiction and execution enjoyed by in internal waters. The actions taken by Ganian
such vessel pursuant to ART 32 of UNCLOS and ART authorities that prevent the ARA Libertad a warship
3 of the 1926 Convention for the Unification of Certain belonging to the Argentine Navy, from discharging its
Rules concerning the Immunity of State-owned mission and duties affect the immunity enjoyed by this
Vessels, as well as customary international law on this warship under general international law.
regard; 2) prevents the exercise of the right to sail out
of the waters subject to the jurisdiction of the coastal Ghana shall forthwith and unconditionally release the
State and the right of freedom of navigation enjoyed by frigate ARA Libertad, shall ensure that the frigate ARA
said vessel and crew, ART 18 of UNCLOS. Libertad, its Commander and crew are able to leave the
port of Tema and the maritime areas under the
Argentina contends that the forced detention prevents it jurisdiction of Ghana, and shall ensure that the frigate
from exercising its right to leave Ghana’s jurisdictional ARA Libertad is resupplied to that end.
waters, in accordance with the right of innocent passage
(ART 18(1)(b) of the Convention, “the definition of 6.5 DIPLOMATIC IMMUNITIES AND PROTECTION
innocent passage includes not only the right to proceed Purpose of Diplomatic Law:
to internal waters, but also the right to proceed from
internal waters), and violates Argentina’s right to 1. To strike a balance between the legitimate
benefit from the immunity attached to its warship. It concerns of the sending state and the state in
alleges that ART 32 of the Convention confirms a well- which the representatives and the diplomatic
established rule of general international law, that mission are based.
“under customary international law, as it is recognized 2. Not to benefit the state representative in his or her
and enshrined in the Convention, the immunity of personal capacity but the state he or she represents
warships is a special and autonomous type of immunity  Diplomatic relations is always based on mutual
which provides for the complete immunity of these consent
ships.”  Presence of diplomatic mission of a foreign state
is based on the consent of the host state and the
Ghana argues that ART 32 of the Convention refers to latter is always free to revoke its consent without
the immunity of warships in teh territorial sea and does having to offer any justification
NOT refer to any such immunity then in internal waters
and that “it was understood that the regime of ports and ART 2, Vienna Convention on Diplomatic Relations
internal waters was excluded..” That the coastal enjoys
full territorial sovereignty over internal waters, and that The establishment of diplomatic relations between States,
any foreign vessel located in internal waters is subject and of permanent diplomatic missions, takes place by
to the legislative, administrative, judicial, and mutual consent.
jurisdictional powers of the coastal State.
ART 4, VCDR
ISSUE: Is a warship subject to immunities?
1.The sending State must make certain that the agrément of
RULING: In accordance with ART 29 of the the receiving State has been given for the person it
Convention, “warship” means a ship belonging to the proposes to accredit as head of the mission to that State.
armed forces of a State bearing the external marks 2.The receiving State is not obliged to give reasons to the
distinguishing such ships of its nationality, under the sending State for a refusal of agrément.
command of an officer duly commissioned by the
government of the State and whose name appears in the ART 9(1), VCDR
appropriate service list or its equivalent, and manned by
a crew which is under regular armed forces discipline. 1.The receiving State may at any time and without having
to explain its decision, notify the sending State that the
A warship is an expression of the sovereignty of the head of the mission or any member of the diplomatic staff
State
Eunicewhose flag it| based
Soriano Baliong flies;onand
Atty. in accordance
Pandi’s with
syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 139
general international law, a warship enjoys immunity,
including in internal waters. The actions taken by
Ganian authorities that prevent the ARA Libertad a
warship belonging to the Argentine Navy, from
2019, EH 402) Jerusalem, 1961
of the mission is persona non grata or that any other (c) Estate, succession or inheritance duties levied by the
member of the staff of the mission is not acceptable. In any receiving State, subject to the provisions of paragraph 4 of
such case, the sending State shall, as appropriate, either article 39;
recall the person concerned or terminate his functions with
the mission. A person may be declared non grata or not (d) Dues and taxes on private income having its source in
acceptable before arriving in the territory of the receiving the receiving State and capital taxes on investments made
State. in commercial undertakings in the receiving State;
2.If the sending State refuses or fails within a reasonable (e) Charges levied for specific services rendered;
period to carry out its obligations under paragraph 1 of this
article, the receiving State may refuse to recognize the (f) Registration, court or record fees, mortgage dues and
person concerned as a member of the mission. stamp duty, with respect to immovable property, subject to
the provisions of article 23.
6.2.3. IMMUNITY AND PROTECTION OF
DIPLOMATIC AGENTS ART 35, VCDR
ART 29—39, VCDR contains the relevant rules The receiving State shall exempt diplomatic agents from
concerning the protection and immunities of diplomatic all personal services, from all public service of any kind
staff. whatsoever, and from military obligations such as those
connected with requisitioning, military contributions and
ART 29, VCDR. billeting.
The person of a diplomatic agent shall be inviolable. He ART 37, VCDR

shall not be liable to any form of arrest or detention. The
receiving State shall treat him with due respect and shall 1.The members of the family of a diplomatic agent
take all appropriate steps to prevent any attack on his forming part of his household shall, if they are not
person, freedom or dignity. nationals of the receiving State, enjoy the privileges and
immunities specified in articles 29 to 36.
ART 30, VCDR.
2.Members of the administrative and technical staff of the
1.The private residence of a diplomatic agent shall enjoy mission, together with members of their families forming
the same inviolability and protection as the premises of the part of their respective households, shall, if they are not
mission. nationals of or permanently resident in the receiving State,
enjoy the privileges and immunities specified in articles 29
2.His papers, correspondence and, except as provided in to 35, except that the immunity from civil and
paragraph 3 of article 31, his property, shall likewise enjoy administrative jurisdiction of the receiving State specified
inviolability. in paragraph 1 of article 31 shall not extend to acts
performed outside the course of their duties. They shall
ART 34, VCDR also enjoy the privileges specified in article 36, paragraph
1, in respect of articles imported at the time of first
A diplomatic agent shall be exempt from all dues and installation.
taxes, personal or real, national, regional or municipal,
except: 3.Members of the service staff of the mission who are not
nationals of or permanently resident in the receiving State
(a) Indirect taxes of a kind which are normally shall enjoy immunity in respect of acts performed in the
incorporated in the price of goods or services; course of their duties, exemption from dues and taxes on
(b) Dues and taxes on private immovable property situated the emoluments they receive by reason of their
in the territory of the receiving State, unless he holds it on employment and the exemption contained in article 33.
behalf of the sending State for the purposes of the mission;
4.Private servants of members of the mission shall, if they
are not nationals of or permanently resident in the
receiving State, be exempt from dues and taxes on the
2019, EH 402) Jerusalem, 1961
emoluments they receive by reason of their employment. maintained, "involves, inter alia, more than 25 years of
In other respects, they may enjoy privileges and continual interference by the United States in the
immunities only to the extent admitted by the receiving interna1 affairs of Iran, the shameless exploitation of
State. However, the receiving State must exercise its our country, and numerous crimes perpetrated against
jurisdiction over those persons in such a manner as not to the Iranian people, contrary to and in conflict with al1
interfere unduly with the performance of the functions of international and humanitarian norms". In the first of
the mission. the two letters he indeed singled out amongst the
ART 32, VCDR. "crimes" which he attributed to the United States an
alleged complicity on the part of the Central
1.The immunity from jurisdiction of diplomatic agents and Intelligence Agency in the coup d'état of 1953 and in
of persons enjoying immunity under article 37 may be the restoration of the Shah to the throne of Iran.
waived by the sending State.
Invoking these alleged crimes of the United States, the
2.Waiver must always be express. Iranian Foreign Minister took the position that the
United States' Application could not be examined by
3.The initiation of proceedings by a diplomatic agent or by the Court divorced from its proper context, which he
a person enjoying immunity from jurisdiction under article insisted was "the whole political dossier of the relations
37 shall preclude him from invoking immunity from between Iran and the United States over the last 25
jurisdiction in respect of any counterclaim directly years.”
connected with the principal claim.
ISSUE: Are the attacks imputable to Iran, despite the
4.Waiver of immunity from jurisdiction in respect of civil fact that there is no sufficient link between the militants
or administrative proceedings shall not be held to imply and any competent organ of the State?
waiver of immunity in respect of the execution of the
judgement, for which a separate waiver shall be necessary. RULING: [61] The fact that the attacks cannot be
considered in itself imputable to the Iranian State does
UNITED STATES DIPLOMATIC AND not mean that Iran, is, in consequence, free of any
CONSULAR STAFF ( ), 1980, ICJ responsibility in regard to those attacks; for its own
conduct was in conflict with its international
FACTS: United States alleges that owing to events in obligations. BY a number of provisions of the Vienna
Iran, it has been unable to have access to its diplomatic Conventions of 1961, an 1963, Iran was placed under
and consular representatives, premises and archives in the most categorical obligations, as a receiving State to
Iran; in consequence it has been unable to furnish take appropriate steps to ensure the protection of the
detailed factual evidence. United States Embassy and Consulates, their staffs,
their archives, their means of communication, and the
The first of these phases, cover the armed attack in the freedom of movement of the members of their staffs.
United States Embassy by militants on November
1979, and the seizure of Consulates at Tabriz and [62] The premises of a diplomatic mission is inviolable.
Shiraz; during the course of a demonstration, the US Under ART 22 of the 1961 Convention, “The receiving
Embassy compound in Tehran was overrun by a strong State is under a special duty to take all appropriate
armed group of several hundred people. In the course steps to protect the premises of the mission against any
of the attack, diplomatic and consular personnel were intrusion or damage and to prevent any disturbance of
seized as hostages, and detained in the Embassy the peace of the mission or impairment of its dignity.”
compound. This operation continued for three hours
without any body of police, any military unit or Iranian The person of a diplomatic agent is inviolable and he is
official intervening to try to stop or impede it. not to be liable to any form of arrest or detention. ART
29 provides, “The receiving State shall treat him with
Also, Iran’s Iran's Minister for Foreign Affairs referred due respect and shall take all appropriate steps to
to the present case as only "a marginal and secondary prevent any attack on his person, freedom, or dignity.”
aspect of an overall problem". This problem, he
Under ART 24, the receiving State is also
maintained, "involves, inter alia, more than 25 years of obliged to protect the inviolability of archives and
continual interference by the United States in the documents of a diplomatic mission, “inviolable at any
interna1 affairs of Iran, the shameless exploitation of time and wherever they may be.” ART 25, “accord full
our country, and numerous crimes perpetrated against facilities for the performance of the functions of the
the Iranian people, contrary to and in conflict with al1 mission,” ART 26, “ensure to all members of the
2019, EH 402) Jerusalem, 1961
obliged to protect the inviolability of archives and by the State of both the take-over of the Embassy and
documents of a diplomatic mission, “inviolable at any Consulates and the detention of the staff as hostages.
time and wherever they may be.” ART 25, “accord full The true significance of this was only reinforced when,
facilities for the performance of the functions of the next day,, he expressly forbade members of the
mission,” ART 26, “ensure to all members of the Revolutionary Council and all responsible officials to
mission freedom of movement and travel in its meet the representatives sent by President Carter to try
territory,” ART 27, “permit and protect free and obtain release of the hostages and evacuation of the
communication on the part of the mission for all Embassy.
official purposes.” Analagous provisions are also in
the 1963 Convention regarding privileges and [72] Seal of government approval was finally
immunities of consular missions and their staffs [ART set when a decree issued on 17 November 1970, by the
31(3), ART 40, 33, 38, 34, 35). Thus, obligations of Ayatollah began with the assertion that the American
the Iranian Government here in question are not merely Embassy was “a centre of espionage and conspiracy,”
contractual obligations, but also obligations under and that “those people who hatched plots against our
general international law. Islamic movement in that place do not enjoy
international diplomatic respect.” He went on
[63] Iranian government failed to take any expressly to declare that the premises and the hostages
“appropriate steps” to protect the premises, staff and would remain as they were until the US handed over
archives against attack or to stop it before it reached its the former Shah for trial and returned his property to
completion. They also failed to protect the US Iran.
Consulates at Tabriz and Shiraz.
[74] The approval given, the decision to
[66] Despite repeated and urgent calls for help, perpetuate them, translated continuing occupation of
they took no apparent steps either to prevent the the Embassy and detention of the hostages into acts of
militants from invading the Embassy or to persuade or the State.
to compel them to withdraw. Furthermore, after the
militants had forced an entry into the premises of the ISSUE: Will the alleged criminal acts of the US in Iran
Embassy, the Iranian authorities made no effort to be regarded as continuing justification of Iran’s
compel or even persuade them to withdraw and to free conduct?
the diplomatic and consular staff.
[82] Court was not furnished with any further
[69] The second phase of the events is that the information regarding the alleged criminal activities of
occupation having taken place, and the diplomatic and the US in Iran. They are unsupported by evidence,
consular personnel having been taken hostage, the hence cannot provide a basis for this Court to forma
action required from Iran by the Vienna Conventions judicial opinion.
and by general international law is manifest. Its plain
duty was at once to make every effort and to take every [83] In any case, even if the alleged criminal
appropriate step, to bring these flagrant infringements activities of the US could be established, the Court is
of to speedy end, and to restore the Consulates to US unable to accept that they can be so regarded because
control, and re-establish the status quo and offer diplomatic law itself provides the necessary means of
reparation. defence against, or sanction for illicit activities by
members of diplomatic or consular missions.
[70] No such step was taken.
[84] It is precisely with the possibility of such
[71] In any event, expressions of approval of abuses in contemplation that Article 41, paragraph 1, of
the take-over by the Embassy by militants came the Vienna Convention on Diplomatic Relations, and
immediately from numerous Iranian authorities, Article 55, paragraph 1, of the Vienna Convention on
including religious, judicial, executive, police, and Consular Relations, provide:
broadcasting authorities. Above all, the Ayatollah
Khomeini himself, made crystal clear the endorsement "Without prejudice to their privileges and immunities,
it is the duty of al1 persons enjoying such privileges
by the State of both the take-over of the Embassy and and immunities to respect the laws and regulations of
the and the booksState.
receiving by Henriksen,
They Akehurst,
also haveand Shaw
a duty142
not to
Consulates and the detention of the staff as hostages.
The true significance of this was only reinforced when, interfere in the internal affairs of that State."
next day,, he expressly forbade members of the
Revolutionary Council and all responsible officials to [85] Thus, it is for the very purpose of
providing a remedy for such possible abuses of
2019, EH 402) Jerusalem, 1961
and immunities to respect the laws and regulations of the Court that at no time before the events of 4
the receiving State. They also have a duty not to November 1979 had the Iranian Government declared,
interfere in the internal affairs of that State." or indicated any intention to declare, any member of
the United States diplomatic or consular staff in Tehran
[85] Thus, it is for the very purpose of providing a persona non grata. The Iranian Government did not,
remedy for such possible abuses of diplomatic therefore, employ the remedies placed at its disposa1
functions that Article 9 of the 1961 Convention on by diplomatic law specifically for dealing with
Diplomatic Relations stipulates : activities of the kind of which it now complains.
"1. The receiving State rnay at any time and without
having to explain its decision, notify the sending State Atty. Pandi: There are two kinds of obligations under
international law.
that the head of the mission or any member of the
diplomatic staff of the mission is persona non grata or 1. Obligations of Conduct- there is a required act.
that any other member of the staff of the mission is not 2. Obligations of Result- has the result been met?
acceptable. In any such case, the sending State shall, as This mostly applies in international environmental
appropriate, either recall the person concerned or law.
terminate his functions with the mission. A person may
be declared non grata or not acceptable before arriving 6.5.2. PROTECTION OF DIPLOMATIC PREMISES
in the territory of the receiving State. AND PROPERTY
2. If the sending State refuses or fails within a ART 22, VCDR
reasonable period to carry out its obligations under
paragraph 1 of this Article, the receiving State rnay 1.The premises of the mission shall be inviolable. The
refuse to recognize the person concerned as a member agents of the receiving State may not enter them, except
of the mission." with the consent of the head of the mission.
[86] the principle of the inviolability of the persons of 2. The receiving State is under a special duty to take all
diplomatic agents and the premises of diplomatic appropriate steps to protect the premises of the mission
missions is one of the very foundations of this long- against any intrusion or damage and to prevent any
established régime, to the evolution of which the disturbance of the peace of the mission or impairment of
traditions of Islam made a substantial contribution. its dignity.
Even in the case of armed conflict or in the case of a
breach in diplomatic relations those provisions require 3.The premises of the mission, their furnishings and other
that both the inviolability of the members of a property thereon and the means of transport of the mission
diplomatic mission and of the premises, property and shall be immune from search, requisition, attachment or
execution.
archives of the mission must be respected by the
receiving State. Naturally, the observance of tlus ART 24, VCDR
principle does not mean - and tlus the Applicant
The archives and documents of the mission shall be
Government expressly acknowledges - that a
inviolable at any time and wherever they may be.
diplomatic agent caught in the act of comrnitting an
assault or other offence may not, on occasion, be 6.5.3. PROTECTION OF COMMUNICATION
briefly arrested by the police of the receiving State in
order to prevent the commission of the particular crime. ART 26, VCDR
But such eventualities bear no relation at al1 to what
occurred in the present case. Subject to its laws and regulations concerning zones entry
into which is prohibited or regulated for reasons of
[87] In the present case, the Iranian Government did national security, the receiving State shall ensure to all
not break off diplomatic relations with the United members of the mission freedom of movement and travel
States ; and in response to a question put to him by a in its territory.
Member of the Court, the United States Agent informed
the Court that at no time before the events of 4
November 1979 had the Iranian Government declared,
or indicated any intention to declare, any member of
the United States diplomatic or consular staff in Tehran
persona non grata. The Iranian Government did not,
2019, EH 402) Jerusalem, 1961
ART 27, VCDR 1.Without prejudice to their privileges and immunities, it is

the duty of all persons enjoying such privileges and
1.The receiving State shall permit and protect free immunities to respect the laws and regulations of the
communication on the part of the mission for all official receiving State. They also have a duty not to interfere in
purposes. In communicating with the Government and the the internal affairs of that State.
other missions and consulates of the sending State,
wherever situated, the mission may employ all appropriate 2.All official business with the receiving State entrusted to
means, including diplomatic couriers and messages in code the mission by the sending State shall be conducted with or
or cipher. However, the mission may install and use a through the Ministry for Foreign Affairs of the receiving
wireless transmitter only with the consent of the receiving State or such other ministry as may be agreed.
State.
3.The premises of the mission must not be used in any
2. The official correspondence of the mission shall be manner incompatible with the functions of the mission as
inviolable. Official correspondence means all laid down in the present Convention or by other rules of
correspondence relating to the mission and its functions. general international law or by any special agreements in
force between the sending and the receiving State.
3.The diplomatic bag shall not be opened or detained.
Remedies of a Host State if a Sending State abuses Its
4.The packages constituting the diplomatic bag must bear Rights and Privileges
visible external marks of their character
1) By declaring the representative persona non grata.
and may contain only diplomatic documents or articles It can withdraw its consent in respect of a member
intended for official use. of the mission. In which cases, the sending state
MUST recall the individual or terminate his or her
5. The diplomatic courier, who shall be provided with an functions. (ART 9, VCDR)
official document indicating his status and the number of 2) Host state may break off diplomatic relations in
packages constituting the diplomatic bag, shall be serious case of abuse.
protected by the receiving State in the performance of his
functions. He shall enjoy person inviolability and shall not 6.5.5. CONSULAR PROTECTION
be liable to any form of arrest or detention.
Consular agents
6.The sending State or the mission may designate
diplomatic couriers ad hoc. In such cases the provisions of  unlike diplomatic agents, the functions of consular
paragraph 5 of this article shall also apply, except that the agents are generally limited to offering assistance
immunities therein mentioned shall cease to apply when in relation to more technical, commercial, and/or
such a courier has delivered to the consignee the private matters to the nationals of the sending
diplomatic bag in his charge. state, including in situations where nationals in one
way or another find themselves in difficulty.
7.A diplomatic bag may be entrusted to the captain of a  Consuls play a less political role
commercial aircraft scheduled to land at an authorized port  In contrast to diplomats, consular officers only
of entry. He shall be provided with an official document enjoy immunity rationae materiae in relation to
indicating the number of packages constituting the bag but functions performed in the exercise of their official
he shall not be considered to be a diplomatic courier. The functions
mission may send one of its members to take possession of
the diplomatic bag directly and freely from the captain of ART 31, Vienna Convention on Consular Relations
the aircraft.
Atty. Pandi: What is a recall? It is a request to the
6.5.4. OBLIGATIONS OF THE SENDING STATE sending state, a wire to recall the diplomat. Failure of the
AND ABUSE OF PRIVILEGE sending state to comply implies a waiver of immunity or
consent to immunity. We resort to three remedies:
ART 41, VCDR
1) Persona non grata
2019, EH 402) Jerusalem, 1961
2) Recall [76] The United States contends, furthermore, that

3) Severance of diplomatic ties rights of consular notification and access under the
It is a self-contained regime because it can stand on its Vienna Convention are rights of States, and not of
own. It 1) foresees abuses, 2) it provides remedies of individuals, even though these rights may benefit
abuses, individuals by permitting States to offer them consular
assistance. It maintains that the treatment due to
individuals under the Convention is inextricably linked
LA GRAND CASE (Germany v. United States of to and derived from the right of the State, acting
America), 27 June 2001, ICJ through its consular officer, to communicate with its
FACTS: nationals, and does not constitute a fundamental right
or a human right.
[13] Karl and Walter La Grand were German nationals
who took up permanent residence in the US but they The United States argues that the fact that Article 36 by
never acquired US citizenship. its terms recognizes the rights of individuals does not
determine the nature of those rights or the remedies
[14] In 1982, they were arrested in the US on suspicion required under the Vienna Convention for breaches of
of having been involved in an attempted armed bank that Article. It points out that Article 36 begins with the
robbery in Arizona, in the course of which the bank words "[wlith a view to facilitating the exercise of
manager was murdered and another bank employee consular functions relating to nationals of the sending
seriously injured. They were tried and convicted of State", and that this wording gives no support to the
murder and sentenced to death notion that the rights and obligations enumerated in
paragraph 1 of that Article are intended to ensure that
[15] At al1 material times, Germany as well as the nationals of the sending State have any particular
United States were parties to both the Vienna rights or treatment in the context of a criminal
Convention on Consular Relations and the Optional prosecution. The travauxs perpetoires of the Vienna
Protocol to that Convention. Article 36, paragraph 1 ( h Convention according to the United States do not
) , of the Vienna Convention provides that : reflect a consensus that Article 36 was addressing
immutable individual rights, as opposed to individual
"if he so requests, the competent rights derivative of the rights of States.
authorities of the receiving State shall,
without delay. inform the consular post RULING:
of the sending State if within its
consular district, a national of that [77] The Court notes that Article 36, paragraph 1 ( b ) ,
State is arrested or committed to prison spells out the obligations the receiving State has
or to custody pending trial or is towards the detained person and the sending State. It
detained in any other manner. Any provides that, at the request of the detained person, the
communication addressed to the receiving State must inform the consular post of the
consular post by the person arrested, in sending State of the individual's detention "without
prison, custody or detention shall be delay". It provides further that any communication by
forwarded by the said authorities the detained person addressed to the consular post of
without delay. The said authorities the sending State must be forwarded to it by authorities
shall inform the person concerned of the receiving State "without delay". Significantly,
without delay of his rights under this this subparagraph ends with the following language:
subparagraph." "The said authorities shall inform the person concerned
without delay of his rights under this subparagraph"
At the time of their conviction, the LaGrands were not (emphasis added).
informed, and had not informed the German consular
post of the LaGrand’s arrest in violation of the Vienna Moreover, under Article 36, paragraph 1 (c), the
Convention. sending State's right to provide consular assistance to
the detained person may not be exercised "if he
expressly opposes such action". The clarity of these
provisions
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, viewed
and the books in their context,
by Henriksen, Akehurst,admits of no145
and Shaw doubt.
[76] The United States contends, furthermore, that It follows, as has been held on a number of occasions,
rights of consular notification and access under the that the Court must apply these as they stand. Based on
Vienna Convention are rights of States, and not of the text of these provisions, the Court concludes that
individuals, even though these rights may benefit Article 36, paragraph 1, creates individual rights,
2019, EH 402) Jerusalem, 1961
expressly opposes such action". The clarity of these 6.4.6. IMMUNITY FOR REPRESENTATIVE ON
provisions viewed in their context, admits of no doubt. “SPECIAL MISSIONS”
It follows, as has been held on a number of occasions, Ad hoc diplomacy—as an alternative or a supplement to
that the Court must apply these as they stand. Based on the creation of more permanent diplomatic and consular
the text of these provisions, the Court concludes that relations, a state may conduct “ad-hoc” diplomacy and
Article 36, paragraph 1, creates individual rights, send state representatives on “special missions” to other
which, by virtue of Article 1 of the Optional Protocol, states.
may be invoked in this Court by the national State of
the detained person. These rights were violated in the Special mission—should be conceived as a temporary
present case. diplomatic mission with the features of a regular
diplomatic mission, but for a limited period of time.
ON CESSATION
 Immunities of a representative on a special
[46] The United States objects to the jurisdiction of the
mission derive from the consent of the forum state
Court over the fourth submission in so far as it
to the presence of the mission on its territory
concerns a request for assurances and guarantees of
non-repetition. The United States submits that its 1969 Convention on Special Missions—has entered into
"jurisdictional argument [does] not apply to jurisdiction force but has not yet been widely ratified. Its status under
to order cessation of a breach or to order reparation, international law is unclear.
but is limited to the question of assurances and
guarantees . . . [which] are conceptually distinct from
KHURTS BAT v. INVESTIGATING JUDGE OF
reparation". It contends that Germany's fourth
THE GERMAN FEDERAL COURT (2011) EWHC
submission
2029
"goes beyond any remedy that the
FACTS: Accused Khurts Bat and three other
Court can or should grant, and should be unidentified members of the Mongolian secret service
rejected. The Court's power to decide cases . . . attacked the Mongolian national Enkhbat Damiran,
does not extend to the power to order a State to kidnapped him and abducted him to the Mongolian
provide any 'guarantee intended to confer embassy in Berlin. It was pursuant to the mandate of
additional legal rights on the Applicant State . . the Mongolian Secret Service to bring Damiran, an
. The United States does not believe that it can accused on the assassination of Zorig, the Mongolian
be the role of the Court . . . to impose any Minister of the Interior. Khurts Bat was entrusted with
obligations that are additional to or that differ this mission.
in character from those to which the United
States consented when it ratified the Vienna Damiran was kept in the basement where he
Convention. was repeatedly drugged by injection. He was
subsequently taken to Ulaan Baator and he is now
[48] The Court considers that a dispute regarding the serving prison sentence.
appropriate remedies for the violation of the
Convention alleged by Germany is a dispute that arises Five and a half months later, a German warrant
out of the interpretation or application of the had been issued for Khurts Bat’s arrest. When he went
Convention and thus is within the Court's jurisdiction. to the UK as a “Mongolian Diplomat intending a seven
Where jurisdiction exists over a dispute on a particular day visit to the UK on official business,” the Border
matter, no separate basis for jurisdiction is required
by the Court to consider the remedies a party has Agency indicated that it had no details of what Bats
requested for the breach of the obligation (Factory at would do in the UK. The Support Unit referred also
Chorzow. P. C. I. J., Series A, No. 9, p. 22). to the fact that bat was not an accredited diplomat at the
Consequently, the Court has jurisdiction in the present Mongolian Embassy in London.
case with respect to the fourth submission of Germany.
Appellant was arrested on board a Russian
plane when it landed. He had clearly intended to meet

146
officials since he was carrying working papers,
emblems of his office in Mongolia, small Mongolian
gifts, and internet photographs of people he was
expecting to meet.
2019, EH 402) Jerusalem, 1961
plane when it landed. He had clearly intended to meet gives effect to the Vienna Convention on Diplomatic
officials since he was carrying working papers, Relations of 1961 (see Article 29 and Article 31 in
emblems of his office in Mongolia, small Mongolian Schedule 1). A Special Mission performs temporarily
gifts, and internet photographs of people he was those functions ordinarily taken care of by a permanent
expecting to meet. mission. The Special Mission represents the sending
State in the same way as a permanent Diplomatic
ISSUE: Is Khurts Bat entitled to inviolability of the Mission represents the State who sends it (see, for
person and immunity from suit if he was travelling on a example, the statement made by the UK representative,
Special Mission sent by Mongolia to the UK? speaking also for the French delegation, at the vote for
the adoption of Article 1(a) of the Special Missions
RULING: [22] Under rules of customary law, he is Convention at the Sixth (Legal) Committee of the
entitled to inviolability of person and immunity from General Assembly of the United Nations on 20 October
suit if he was travelling on a special mission sent by 1969 (UN Document A/C.6/SR.1128 paragraphs 25–
Mongolia to the UK with prior consent of UK. There is 26).
no treaty in force between the UK and Mongolia
governing the inviolability and immunity of persons on [27] The essential requirement for recognition of a
Special Missions. There are 38 States parties to the Special Mission is that the receiving State consents to
Convention on Special Missions of 8 December 1969 the mission, as a Special Mission. This central
which entered into force, 21 June 1985. But although requirement is reflected in Article 1(a) of the
UK signed, it has not ratified it. Mongolia is neither a Convention, which provides:—
party to the Convention nor has signed it.
“(a) A ‘Special Mission’ is a
[24] A Special Mission is a means to conduct ad temporary mission, representing the
hoc diplomacy in relation to specific international State, which is sent by one State to
business, beyond the framework of permanent another State with the consent of the
diplomatic relations that is now set out in [The Vienna latter for the purposes of dealing with
Convention on Diplomatic Relations]. As is the case for it on specific questions of performing
permanent diplomatic relations, the fundamental aspect in relation to it a specific task.” (my
of a Special Mission is the mutuality of consent of both emphasis)
the sending and the receiving States to the Special
Mission. Whilst in FCO practice there are no Article 2 provides that the consent must be
prescribed formalities, such consent would normally be “previously obtained through the diplomatic or another
demonstrated by, for example, an invitation by the agreed or mutually acceptable channel”.
receiving State and an acceptance by the sending State,
an agreed programme of meetings, an agreed agenda of [28] The consent which must be previously obtained is
business and so on. consent to a Special Mission. A State which gives such
consent recognises the special nature of the mission and
In the case of Mr Khurts Bat, the FCO did not consent the status of inviolability and immunity which
to his visit as a Special Mission, no invitation was participation in that Special Mission confers on the
issued, no meeting was arranged, no subjects of visitors. Not every official visit is a Special Mission.
business were agreed or prepared. The FCO therefore Not everyone representing their State on a visit of
did not consider that Mr Khurts Bat came to the UK on mutual interest is entitled to the inviolability and
18 September on a Special Mission.” immunity afforded to participants in a Special Mission.
[26] Under customary international law those [39] Whether or not the United Kingdom Government
accredited to a permanent Diplomatic Mission enjoy chose to consent to Mr Khurts Bat’s visit as a Special
inviolability of the person and immunity from suit. Mission was exclusively a matter for the Government
Those accredited to a permanent Diplomatic Mission and not for the court. The letter of 12 January 2011
are now afforded such inviolability and immunity by conclusively establishes that the United Kingdom did
virtue of the Diplomatic Privileges Act 1964 which not consent to the visit as a Special Mission.
gives effect to the Vienna Convention on Diplomatic [41] For that reason, it seems to me that Mr Khurts Bat
Relations of 1961 (see Article 29 and Article 31 in is not entitled to immunity on the grounds that his visit
Schedule 1). A Special Mission performs temporarily was a Special Mission.
those functions ordinarily taken care of by a permanent
mission. The Special Mission represents the sending
2019, EH 402) Jerusalem, 1961
[41] For that reason, it seems to me that Mr Khurts Bat Every internationally wrongful act of a State entails the
is not entitled to immunity on the grounds that his visit international responsibility of that State.
was a Special Mission.
BOSNIAN GENOCIDE CASE (Bosnia and
Herzegovina v. Serbia and Montenegro) Judgment
VII (2007), ICJ Rep 43
STATE RESPONSIBILITY
Q: Why are the rules on state responsibility considered QUESTION OF RESPONSIBILITY FOR EVENTS
secondary rules? AT SREBRENICA UNDER ART III, PAR. (A) OF
THE GENOCIDE CONVENTION
Because they determine the consequences of
violating the primary rules. Primary rules are those that 378 for Court to determine whether Respondent is
define the obligations. For example, the law on treaties responsible for any acts of genocide which may be
determines if a treaty is in force, how it must be established...Court may take into account any
interpreted, but it is the rules on responsibility that deal statements made by either party that appear to bear
with the issue of whether a breach involves the upon the matters in issue...and may accord to them such
responsibility of the breaching actor and what the legal effect as may be appropriate...declaration of 15
consequences of the breach may be. June 2005 was of a political nature; clearly not intended
as an admission, which would have had a legal effect in
Atty Pandi: The rules on responsibility are codified in a complete contradiction to the submissions made by
series of Articles on Responsibility of States for respondent (statement was made following the showing
Internationally Wrongful Acts (ARSIWA) by the on television of a video-recording of murder of Bosnian
International Law Commission. What is its status? They muslims)
are still “draft” articles. It is not yet a treaty in force.
However, its provisions have long been customary The Test of Responsibility (ART 4, ARSIWA)
international law. In fact, I have yet to see a State that
questions the customary nature of these articles and 384 First, it should be ascertained whether the acts
principles. committed were perpetrated by organs of the
Respondent...if the preceding question is answered in
This is only an overview of some important provisions in the negative, it should be ascertained whether the acts
the ARSIWA: were committed by persons who, while not organs of
the Respondent, did nevertheless act on the
ART 5 v. ART 8. The most important distinction is in instructions of, or under the direction or control of,
ART 5 there is a need for a law. ART 8 requires you to the Respondent
prove control, direction, and instruction. ART 8 does not
require you to prove that there is a law, because the three 386 It is not shown that the FRY army took part in
elements provide the direct link in the absence of a law. the massacres, nor that the political leaders of the FRY
had a hand in preparing, planning or in any way
ART 6 talks about loans carrying out the massacres...it is true that there is much
evidence of direct or indirect participation by the
ART 7 talks about ultra vires acts, or acts that are in official army of the FRY, along with Bosnian Serb
excess to the authority given. armed forces, in the years prior to the events at
Srebrenica. It has however not been shown that there
ART 11 is your Tehnran hostages case. If you ratify the
was any such participation in relation to the massacres
act, you make it your own
committed at Srebrenica, neither Republika Srpska nor
7.1. THE CORE PRINCIPLES AND ELEMENTS OF the VRS were de jure organs of the FRY...under its
internal law
STATE RESPONSIBILITY
ART 1, ARSIWA 388 No doubt that the FRY was providing
substantial support, financial support to the Republika
Srpska, and that one of the forms that support took was
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and theof
payment books by Henriksen,
salaries and otherAkehurst, andto
benefits Shaw
some 148
officers
of the VRS, but this did not automatically make them
organs of FRY. Those officers were appointed to their
commands by the President of the Republika Srpska,
2019, EH 402) Jerusalem, 1961
Srpska, and that one of the forms that support took was 395 acts of genocide at Srebrenica cannot be
payment of salaries and other benefits to some officers attributed to Respondent as having been committed by
of the VRS, but this did not automatically make them its organs, or by persons or entities wholly dependent
organs of FRY. Those officers were appointed to their upon it
commands by the President of the Republika Srpska,
IN the absence of evidence to the contrary, those Question of Attribution of the Srebrenica Genocide to
officers must be taken to have received their oders from the Respondent on the Basis of Direction or Control
Srpska or the VRS, not FRY. (ART 8, ARSIWA)
“State organ” as used in CIL, and in ART 4 of 397 this is different from the question whether the
ILC articles, applies to one or other of the individual or persons...had the status of organs of the Respondent
collective entities which make up the organization of under its internal law; nor however, and despite some
the State and act on its behalf appearance to the contrary, is it the same as the
question whether those persons should be equated with
389 The act of an organ placed by a State at the State organs de facto, even though not enjoying that
disposal of another public authority shall not be status under internal law. The latter question
considered an act of that State if the organ was acting depends...on whether those persons were in a
on behalf of the public authority at whose disposal it relationship of such COMPLETE DEPENDENCE on
had been placed the State, so that all their actions performed in such
capacity would be attributable to the State for purposes
392 for purposes of state responsibility, be equated of international responsibility
with State organs even if that status does not follow
from internal law, provided that in fact the persons, 398 a completely separate issue: whether, in the
groups or entities act in “complete dependence” on the specific circumstances surrounding the events at
State, of which they are ultimately merely the Srebrenica, the perpetrators of genocide were acting on
instrument...look beyond legal status alone...reality of the Respondent’s INSTRUCTIONS, or under its
the relationship between the person taking action, and DIRECTION or CONTROL. An affirmative
the State to which he is closely attached as to appear to answer...would in no way imply that the perpetrators
be nothing more than its agent should be characterized as organs of the FRY, or
equated with such organs...(but rather) whether FRY
393 However, to equate persons or entities with organs, originated the genocide by issuing instructions
State organs when they do not have that status under to the perpetrators or exercising direction or control,
internal law must be exceptional, for it requires proof
of a particularly great degree of State control...a 399 For this conduct to give rise to legal
relationship...described as COMPLETE responsibility...it would in principle have to be proved
DEPENDENCE. that the State had EFFECTIVE CONTROL of the
military or paramilitary operations in the course of
394 At the relevant time, July 1995, neither Srpska which the alleged violations were committed (para.
nor the VRS could be regarded as mere instruments 115, NICARAGUA)
through which the FRY was acting, and as lacking any
real autonomy...differences over strategic options 400 not necessary to show that the persons who
emerged at the time between Yugoslav authorities and performed the acts...were in a relationship of
Bosnian Serb leaders; at the very least, these are COMPLETE DEPENDENCE on the respondent State,
evidence that the latter had some qualified, but real, has to be proved that they acted in accordance with that
margin of independence. Nor, notwithstanding the very State’s instructions or under its EFFECTIVE
important support given by Respondent to the Srpska, CONTROL. It must however be shown that
without which it could not have conducted its crucial or this..control was exercised, or that the State’s
most significant military and paramilitary activities did instruction were given, in respect of each operation in
this signify a total dependence of the Srpska upon which the alleged violations occurred, not generally
Respondent. in respect of the overall actions taken by persons
395 acts of genocide at Srebrenica cannot be 401 Applicant...contended that the crime of
attributed to Respondent as having been committed by genocide has a particular nature...it may be composed
its organs, or by persons or entities wholly dependent of a considerable number of specific acts separate, to a
upon it greater or lesser extent, in time and space...this
particular nature would justify...assessing the effective
2019, EH 402) Jerusalem, 1961
401 Applicant...contended that the crime of of the conflict

genocide has a particular nature...it may be composed
of a considerable number of specific acts separate, to a 413 Applicant has not proved that instructions were
greater or lesser extent, in time and space...this issued by the federal authorities in Belgrade, or by any
particular nature would justify...assessing the effective other organ of the FRY, to commit the massacres, still
control...not in relation to each of these specific acts, less that any such instructions were given with the
but in relation to the whole body of operations. Court specific intent (dolus specialis) characterizing the crime
is...of the view that the particular characteristics of of genocide, which would have to be present in order
genocide do not justify the Court in departing from the for the Respondent to be held responsible on this
criterion elaborated in the judgment in the Nicaragua a basis...to kill the adult male population of the Muslim
case. The rules for attributing alleged community in Srebrenica was taken by some members
internationally wrongful conduct to a State do not of the VRS main staff, but without instructions from or
vary with the nature of the wrongful act in question effective control by the FRY
in the absence of a clearly expressed les specialis.
As for the killings committed by the Scorpions
402 Applicant..questions validity of paramilitary militias...even if it were accepted that they
applying...critetion in Nicaragua...drawn attention to were an element of the genocide committed in the
the judgment of the ICTY appeals chamber in Tadic Srebrenica area...it has not been proved that they took
case...(which) held that the appropriate criterion, place either on the instructions or under the control of
applicable...to the characterization of the armed conflict organs of the FRY
in Bosnia and Herzegovina as international, and to
imputing the acts committed by Bosnian Serbs to the Complicity to the Crime of Genocide (ART 16,
FRY under the law of State responsibility, was that of ARSIWA)
the OVERALL CONTROL exercised over the Bosnian 420 Whether organs of the respondent State, or
Serbs by the FRY...without there being any need to persons acting on its instructions or under its direction
prove that each operation during which the acts were or effective control, furnished “aid or assistance” in the
committed in breach of international law was carried commission of the genocide in Srebrenica
out on the FRY’s instructions, or under its effective
control 421 conduct of an organ or a person furnishing aid
or assistance to a perpetrator of the crime of genocide
403 Court observes that ICTY was not called upon cannot be treated as complicity in genocide unless at
in the Tadic case, to rule on questions of State the least that organ or person acted knowingly...was
responsibility...its jurisdiction is criminal and extends aware of the specific intent (dolus specialis) of the
over persons only... principal perpetrator). If the condition is not fulfilled,
404 OVERALL CONTROL test is employed to that is sufficient to exclude categorization as
complicity.
determine whether or not an armed conflict is
international, which was the sole question which the 422 Undoubtedly, the quite substantial aid of a
Appeals Chamber was called upon to decide, it may political, military and financial nature provided by the
well be that the test is applicable and suitable FRY to Srpska and the VRS, beginning long before the
405 Logic does not require the same test to be tragic events of Srebrenica, continued during those
events. There is thus little doubt that the atrocities in
adopted: the degree and nature of a State’s involvement Srebrenica were committed, at least in part, with the
in an armed conflict on another State’s territory (which resources which the perpetrators of those acts possessed
is required for the conflict to be characterized as as a result of the general policy of aid and assistance
international) can very well, and without logical pursued towards them by the FRY.
inconsistency, differe from the degree and nature of
involvement required to give rise to that State’s 423 Not conclusively established that at the crucial
responsibility for a specific act committed in the course time, the FRY supplied aid to the perpetrators of the
genocide in full awareness that the aid supplied would
of the conflict be used to commit genocide
413 Applicant has not proved that instructions were 424 international responsibility...is not engaged for
issued by the federal authorities in Belgrade, or by any acts of complicity in genocide
other organ of the FRY, to commit the massacres, still
2019, EH 402) Jerusalem, 1961
be used to commit genocide reasonably at its disposal, they would not have sufficed
to prevent the commission of genocide. As well as
424 international responsibility...is not engaged for being generally difficult to prove, this is irrelevant to
acts of complicity in genocide the breach of the obligation of conduct in question, the
more so since the possibility remains that the combined
Question of Responsibility for Breach of the efforts of several States, each complying with its
Obligations to Prevent and Punish Genocide obligation to prevent, might have achieved the result —
429 The content of the duty to prevent varies from averting the commission of genocide — which the
one instrument to another, according to the wording of efforts of only one State were insufficient to produce.
the relevant provisions, and depending on the nature of 431 a State’s obligation to prevent, and the
the acts to be prevented corresponding duty to act, arise at the instant that the
430 Secondly, it is clear that the obligation in State learns of, or should normally have learned of, the
question is one of conduct and not one of result, in the existence of a serious risk that genocide will be
sense that a State cannot be under an obligation to committed
succeed, whatever the circumstances, in preventing the 432 violation of obligation to prevent results from
commission of genocide: the obligation of States mere failure to adopt and implement suitable measures
parties is rather to employ all means reasonably to prevent genocide from being committed. While
available to them, so as to prevent genocide so far as complicity results from commission, violation of the
possible. A State does not incur responsibility simply obligation to prevent results from omission; this is
because the desired result is not achieved; merely the reflection of the notion that the ban on
responsibility is however incurred if the State genocide and the other acts listed in ART III, including
manifestly failed to take all measures to prevent complicity, places States under a negative obligation,
genocide which were within its power, and which the obligation not to commit the prohibited acts, while
might have contributed to preventing the genocide. the duty to prevent places States under positive
In this area the notion of “DUE DILIGENCE”, which obligations, to do their best to ensure that such acts do
calls for an assessment in concreto, is of critical not occur.
importance.
438 The FRY leadership, and President Miloševic´
Various parameters operate when assessing above all, were fully aware of the climate of deep-
whether a State has duly discharged the obligation seated hatred which reigned between the Bosnian Serbs
concerned. The first, which varies greatly from one and the Muslims in the Srebrenica region. As the Court
State to another, is clearly the capacity to influence
has noted in paragraph 423 above, it has not been
effectively the action of persons likely to commit, or shown that the decision to eliminate physically the
already committing, genocide. This capacity itself whole of the adult male population of the Muslim
depends, among other things, on the geographical community of Srebrenica was brought to the attention
distance of the State concerned from the scene of the of the Belgrade authorities. Nevertheless, given all the
events, and on the strength of the political links, as well international concern about what looked likely to
as links of all other kinds, between the authorities of happen at Srebrenica, given Miloševic´’s own
that State and the main actors in the events. The State’s observations to Mladic´, which made it clear that the
capacity to influence must also be assessed by legal dangers were known and that these dangers seemed to
criteria, since it is clear that every State may only act be of an order that could suggest intent to commit
within the limits permitted by international law; seen genocide, unless brought under control, it must have
thus, a State’s capacity to influence may vary been clear that there was a serious risk of genocide in
depending on its particular legal position vis-à-vis the Srebrenica. Yet the Respondent has not shown that it
situations and persons facing the danger, or the reality, took any initiative to prevent what happened, or any
of genocide. On the other hand, it is irrelevant whether action on its part to avert the atrocities which were
the State whose responsibility is in issue claims, or committed. It must therefore be concluded that the
even proves, that even if it had employed all means organs of the Respondent did nothing to prevent the
reasonably at its disposal, they would not have Srebrenica massacres, claiming that they were
powerless to doby Henriksen,
so, whichAkehurst,
hardlyand Shaw with
tallies 151 their
sufficed to prevent the commission of genocide. As
well as being generally difficult to prove, this is known influence over the VRS. As indicated above, for
irrelevant to the breach of the obligation of conduct in a State to be held responsible for breaching its
question, the more so since the possibility remains that obligation of prevention, it does not need to be proven
2019, EH 402) Jerusalem, 1961
Srebrenica massacres, claiming that they were CORFU CHANNEL CASE

powerless to do so, which hardly tallies with their (UK v. ALBANIA)
known influence over the VRS. As indicated above, for
a State to be held responsible for breaching its FACTS: Oct. 22, 1946- 2 British cruisers passed
obligation of prevention, it does not need to be proven through the Corfu Strait (regarded by Albania as safe)
that the State concerned definitely had the power to which is in Albanian waters. They suffered damage and
prevent the genocide; it is sufficient that it had the serious loss of life.
means to do so and that it manifestly refrained from UK aggrieved, asked the help of the Security
using them. Council which recommended the case to court.
Contention of UK: Albania connived with the
Two elements of State responsibility: Yugoslavia in laying the mines and assuming that they
did not connive, still it is impossible for Albania not to
1) Conduct must be a breach of an international have knowledge of the mines. Albania did not notify us
obligation on the existence of the mines, contrary to the Hague
2) Conduct must be attributable to a state (ART 2, Convention VIII of 1907 in accordance with general
ARSIWA) principles of IL and humanity.
Contention of Albania: We did not have knowledge
In the Tehran Hostages case, the ICJ referred to these two of the mines. There is no evidence that the mines which
elements in reverse order: caused the accidents were laid by Albania. Those mines
were just placed on Nov. 13 so it could not have been
UNITED STATES DIPLOMATIC AND owned by Albania. Britain violated Special Agreement
CONSULAR STAFF IF TEHRAN concluded on March 25 1948 because UK violated its
1980, ICJ sovereignty by passing through the Corfu Strait without
its authorization.
[56] The principal facts material for the Court's
decision on the merits of the present case have been set Issue: WON Albania is responsible for the explosions.
out earlier in this Judgment. Those facts have to be
looked at by the Court from two points of view. First, it Ruling: YES. Albania is responsible because the facts
must determine how far, legally, the acts in question lead to the conclusion that it had knowledge
may be regarded as imputable
to the Iranian State. Secondly, it must consider their The courts sought help from experts and it was found
compatibility or incompatibility with the obligations of out that it was improbable for Albania not to know or
Iran under treaties in force or not to be aware of the mines that were laid. The process
under any other rules of international law that may be must have taken time and also the area where the mines
applicable. can be located can easily be seen by normal lookout of
the Albanian coast.
7.2. ATTRIBUTION OF CONDUCT
A state is solely internationally responsible for its own The court considers Albania’s obligation based on its
acts. A general obligation of due diligence was implied in knowledge.
the Corfu Channel Case, where the ICJ states that a state
may not “allow knowingly its territory to be used for acts Page 22: The obligations incumbent upon the Albanian
contrary to the rights of other States.” authorities consisted in notifying, for the benefit of
shipping in general, the existence of a minefield in
Albanian territorial waters and in warning the
approaching British warships of the imminent danger to
which the minefield exposed them. Such obligations
are based, not on the Hague Convention of 1907, No.
VTII, which is applicable in time of war, but on certain
general and well-recognized principles, namely :
elementary
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, considerations
and the books of humanity,
by Henriksen, Akehurst, and Shaweven
152more
exacting in peace than in war ; the principle of the
freedom of maritime communication ; and every State's
obligation not to allow knowingly its territory to be
used for acts contrary to the rights of other States. In
2019, EH 402) Jerusalem, 1961
elementary considerations of humanity, even more construction of these mills prior to notifying the CARU
exacting in peace than in war ; the principle of the of such undertakings.
freedom of maritime communication ; and every State's
obligation not to allow knowingly its territory to be ISSUE/s: Whether Uruguay complied with its
used for acts contrary to the rights of other States. In procedural obligations under the 1975 Statute in issuing
fact, Albania neither notified the existence of the authorizations for the construction of the CMB mill as
minefield, nor warned the British warships of the well as for the construction and commissioning of the
danger they were approaching. But Albania's obligation Orion?
to notify shipping of the existence of mines in her
waters depends on her having obtained knowledge of RULING: The Court considers that the procedural
that fact in sufficient time before October 22nd ; and obligations of informing, notifying and negotiating
the duty of the Albanian coastal authorities to warn the constitute an appropriate means, accepted by the
British ships depends on the time' that elapsed between Parties, of achieving the objective which they
the moment that these ships were reported and the themselves set. These obligations are all the more vital
moment of the first explosion. In fact, Albania neither when a SHARED RESOURCE is at issue, as in the case
notified the existence of the minefield nor warned the of the River Uruguay which can only be protected
British warships of the danger. through close and continuous cooperation between the
riparian States.
This due diligence principle is even more prominent in
international environmental law where it is translated into [89] The Court observes that like any international
a state’s obligation to use all means “to avoid activities organization, CARU is entitled to exercise powers
which take place in its territory, or in any area under its assigned to it by the 1975 Statute. International
jurisdiction, causing significant damage to the environment organizations, are governed by the PRINCIPLE OF
of another state. SPECIALTY, they are invested by the States which
create them with powers, the limits of which are a
function of the common interests whose promotion
PULP MILLS IN THE RIVER URUGUAY
those States entrust to them.
(ARGENTINA v. URUGUAY)
2010, ICJ
[91] That is why CARU cannot be reduced to merely
FACTS: Argentina alleged that Urugay breached its
an optional mechanism. CARU oprates at all levels of
obligations under the Statute of the River Uruguay, due
utilization of the river.
to the “authorization, construction, and commissioning
of two pulp mills on the River Uruguay,” with
[97] The PRINCIPLE OF PREVENTION as a
particular reference to the “effects of such activities on
customary rule, has its origins in due diligence that is
the quality of the waters of the Uruguay and on the
required of a State. It is “every State’s obligation not
areas affected by the river.”
to allow knowingly is territory to be used for acts
The Statute sets up the Administrative
contrary to the rights of other States.” (Corfu
Commission of the River Uruguay (CARU) to carry out
Channel) A State is thus obliged to use all the means at
the treaty’s purpose of establishing “joint machinery
its disposal in order to avoid activities which take place
necessary for the optimum and rational utilization of
in its territory, or in any area under its jurisdiction,
the River Uruguay in strict observance of the rights and
causing significant damage to the environment of
obligations arising from treaties and other international
another State. This Court has established that this
agreements in force for each of the parties.”
obligation “is now part of the corpus of international
The first mill was the one by the CMB
law relating to the environment” (Legality of the Threat
company. This was yet to be built; environmental
or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
assessment papers were requested by CARU, but
Reports 1996 (I), p. 242, para. 29).
Argentina opposed its construction. The second
industrial project is at the root of the dispute, a pulp
[103] with regard to the River Uruguay, which
mill called Orion by the Botnia company. On both
constitutes a shared resource, “significant damage to
occasions, Uruguay granted permits for the
construction of these mills prior to notifying the CARU
the other party” (Article 7, first
ofEunice
such Soriano
undertakings.
Baliong | based on Atty. Pandi’s syllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 153

ISSUE/s:
 paragraph, of the 1975 Statute) may result
 Whether Uruguay complied with its procedural from impairment of navigation, the régime of
2019, EH 402) Jerusalem, 1961
the other party. (ART 7, paragraph, of the 1975 Statute) commenced a policy of armed opposition
may result from impairment of navigation, the régime Allegedly, the Unites States had been giving
of the river or the quality of its waters. support to the contras, those fighting against the
present Nicaraguan government. There are four acts
[104] in accordance with the terms of Article 7, first which Nicaragua primarily attributed to the US.
paragraph, the information which must be provided to I. THE MINING OF NICARAGUAN
CARU, at this initial stage of the procedure, has to PORTS AND WATERS
enable it to determine swiftly and on a preliminary In 1984, two Nicaraguan fishing vessels struck
basis whether the plan might cause significant damage mines in the Nicaraguan port of El Buff on the Atlantic
to the other party. For CARU, at this stage, it is a Coast. A Dutch dredger and a Panamian vessel were
question of deciding whether or not the plan falls under also damaged by mines in Corinto. A Soviet tanker
the co-operation procedure laid down by the 1975 was damaged by a mine in Puerto Sandino, and further
Statute, and not of pronouncing on its actual impact on vessels were damaged and destroyed by mines in
the river and the quality of its water Corinto. Nicaragua claims a total of 12 vessels or
fishing boats were destroyed or killed.
[106] The Court observes that, in the present case, Press reports reveal that in the US Senate, it
Uruguay did not transmit to CARU the information was announced that the Director of the CIA had
required by Article 7, first paragraph, in respect of the informed the Senate Select Committee on Intelligence
CMB (ENCE) and Orion (Botnia) mills, despite the that President Reagean had approved a CIA plan for the
requests made to it by the Commission to that effect on mining of Nicaraguan ports. At a press conference,
several occasions President Reagan when asked regarding the recent rebel
attacks on the Nicaraguan oil depot and whether it is
7.2.1. ATTRIBUTION FOR ACTS proper for CIA to be involved in such attack, responded
PERFORMED BY THE STATE AND ITS that covert actions are part of a government’s
ORGANS responsibility, to safeguard its best interests. Nicaragua
contends that this is an admission that there was mining
ART 4, ARSIWA of Nicaraguan port and oil installations in the late 1983
and 1984, and that these were acts committed not by
1.The conduct of any State organ shall be considered an members of the contras with assistance of the US
act of that State under international law, whether the organ aganecies, but are either US military personnel or
exercises legislative, executive, judicial or any other persons of nationality of unidentified Latin American
functions, whatever position it holds in the organization of countries, paid by, and acting on the direct instruction
the State, and whatever its character as an organ of the of US military and intelligence personnel.
central Government or of a territorial unit of the State. Further, Nicaragua contends that although
these US personnel, have refrained from entering
2.An organ includes any person or entity which has that
Nicaraguan territory or recognized territorial waters,
status in accordance with the internal law of the State.
they directed the operations and gave very close
logistic, intelligence, and practical support.
CASE CONCERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND II. INFRINGEMENT OF ITS AIR SPACE
AGAINST NICARAGUA BY US MILITARY AIRCRAFT
(NICARAGUA v. UNITED STATES OF AMERICA)
27 June 1986, ICJ This claim refers to overflights by aircraft at high
altitude for intelligence reconnaissance purposes, or
The events of this case took place after the fall of the aircraft for supply purposes to the contras in the field,
Government of President Anastasio Somoza Debayle in and aircraft producing “sonic booms.” In addition,
Nicaragua. A new government was installed. Nicaragau complained of a US SR-71 plane in
However, former supporters of the Somoza November 1984 which flew so low over several
Government and former members of the National Nicaraguan cities, “producing loud sonic booms and
Guard formed themselves into military groups and pressure on Nicarguan Government and population.”
commenced a policy of armed opposition
Eunice Soriano Baliong
Allegedly, the| based on Atty.
Unites Pandi’s
States hadsyllabus, discussions, slides, and the books by Henriksen, Akehurst, and Shaw 154
been giving III. JOINT MILITARY MANOEUVERS
support to the contras, those fighting against the WITH HONDURAS
present Nicaraguan government. There are four acts
which Nicaragua primarily attributed to the US. Nicaragua alleges that US had on a number
2019, EH 402) Jerusalem, 1961
shattering glass windows, to exert psychological ISSUE 1: Are the mining inicidents attributable to the
pressure on Nicarguan Government and population.” US?
III. JOINT MILITARY MANOEUVERS RULING: [83] President Reagan’s comment can, in its
WITH HONDURAS context, be treated as an admission that US had
something to do with the Corinto attack, but not
Nicaragua alleges that US had on a number occasions necessarily that US personnel were directly involved.
carried out military manoeuvres jointly with Honduras [86] On the basis of evidence, and of press reports
on Honduran territory near the Honduras/Nicaragua quoting US administration sources, a mother shup was
frontier, alleging that the military equipment flown to supplied by the CIA. Speedboats, guns, and
Honduras for the joint exercises were turned over to the ammunition were supplied by the US administration,
contras. The move was said to intimidate the and the actual attacks were carried out by UCLAs.
Government of Nicaragua into accepting the political Helicopters piloted by Nicaraguans and others piloted
demands of the US government. American warships by US nationals were also involved on some occasions.
even patrolled the waters of Nicaragua’s coasts. According to one report, pilots were US civilians under
contract with CIA. Although it is not proved that any
IV. ACTIVITIES OF THE CONTRA US military personnel took a direct part in the
FORCE AND THE US operations, agents of the US participated in the
planning, direction, support , and execution. The
Nicaragua alleges that the US conceived, created, execution was the task of the UCLAs, while US
and organized a mercenary army, the contra force. nationals participated in the planning, direction, and
Nicaragua dates the beginning of the activity shortly support. The imputability to the US of these attacks,
after March 1981 when it was said that the US appears therefore to the Court to be established.
President authorized the CIA to undertake “covert
activities” directed against Nicaragua. ISSUE 2: Is there infringement by the US of the
According to the affidavit of Commander Nicaraguan airspace?
Chamorro, even prior to 1981, there were Nicaraguan
anti-government forces prior to that date mainly [88] With regard to the overflights for intelligence
composed of ex-National Guardsmen who fled to reconnaissance...in the course of a Security Council
Honduras when the Somoza government fell and had debate in 1982, the US representative admitted that the
been conducting raids on Nicaraguan border positions US government undertook “overflights to safeguard our
ever since. own security and that of other States...threatened by the
Nicaragua alleged that the CIA, after the Sandinista Government...these overflights, [were]
president’s declaration in 1981, conducted military and conducted by unarmed, high-flying planes, for the
paramilitary activities against Nicaragua with these express purpose of verifying reports of Nicaraguan
existing armed bands consisting of raids on civilian intervention.” Press reports also confirm the use of
settlements, local militia outposts, and army patrols. sonic booms at that period.
It was also alleged that CIA merged other political
opposition groups with an armed opposition force, [91] Also, the photographs attacked to the Background
giving birth to the FDN. Paper are evidence of these sporadic overflights. Court
Nicaragua also claims that even if the operations on therefore sees no reason to doubt the assertion of
Nicaraguan territory were carried out by the contras Nicaragua that such flights have continued.
alone, and the US trainers remained on the other side of [91] As to the incidents on “sonic booms”, the Court
the frontier, the US government had devised the finds that these are to some extent, matters of public
strategy and directed the tactics of the contra force. knowledge.
[91] As to overflights for supply purposes, it appears by
ISSUE 1-5: FIRST ELEMENT OF STATE evidence that these were carried out generally, by the
RESPONSIBILITY. Is there an act attributable to the contras themselves, though using aircraft supplied to
State under international law? them by the US.
[91]andThe
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, Court
the books finds that
by Henriksen, the and
Akehurst, onlyShaw
violation
155 of
ISSUE 1: Are the mining inicidents attributable to the Nicaraguan airspace imputable to the US on the basis
US? of evidence are the high-altitude reconnaissance flights,
and the low-altitude complained of causing “sonic
RULING: [83] President Reagan’s comment can, in its booms.”
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[91] The Court finds that the only violation of contras' dependence on aid. Yet despite the heavy
Nicaraguan airspace imputable to the US on the basis subsidies and other support provided to them by the
of evidence are the high-altitude reconnaissance flights, United States, there is no clear evidence of the United
and the low-altitude complained of causing “sonic States having actually exercised such a degree of
booms.” control in al1 fields as to justify treating the contras as
acting on its behalf.
ISSUE 3: Are the military manoeuvres attributable to [110] It may be noted that after 1 October 1984 such
the US? aid was no longer authorized by US legislation, yet,
according to Nicaragua's own case, and according to
RULING: [92] As evidence of these manoeuvres press reports, contra activity has continued. In sum, the
having taken place, Nicaragua has offered newspaper evidence available to the Court indicates that the
reports; since there was no secrecy about the holding of various forms of assistance provided to the contras by
the manoeuvres, the Court considers that it may treat the United States have been crucial to the pursuit of
the matter as one of public knowledge, and as such, their activities, but is insufficient to demonstrate their
sufficiently established. complete dependence on United States aid. On the
other hand, it indicates that in the initial years of United
ISSUE 4: Whether the relationship of the contras to the States assistance the contra force was so dependent.
US was so much one of dependence on the one side and However, whether the United States Government at any
control on the other that it would be right to equate the stage devised the strategy and directed the tactics of the
contras, for legal purposes, with an organ of the US contras depends on the extent to which the United
government? States made use of the potential for control inherent in
that dependence. The Court already indicated that it has
RULING: [94] The court is unable to find that the US insufficient evidence to reach a finding on this point. It
created an armed opposition in Nicaragua. However, is afortiori unable to determine that the contra force
according to press articles, the size of the contra force may be equated for legal purposes with the forces of
increased dramatically once US financial and other the United States. This conclusion, however, does not
assistance became available. of course suffice to resolve the entire question of the
[96] The General Appropriations Act of the US responsibility incurred by the United States through its
included a provision, “for the purpose...of supporting assistance to the contras.
directly or indirectly, military or paramilitary
operations in Nicaragua by any nation, group, ISSUE 5: Are the acts of the contras, attributable to the
organization, movement, or individual.” The act US?
provided for $14million for that purpose.
[99] The most direct evidence was the disclosure of a [115] United States participation, even if preponderant
former CIA officer of plans which were subsequently or decisive, in the financing, organizing, training,
published in the Washington Post and the plans supplying and equipping of the contras, the selection of
provided that the operations under CIA were intended its military or paramilitary targets, and the planning of
to: “build popular support..for an opposition front that the whole of its operation, is still insufficient in itself,
would be nationalistic, anti-Cuban, and anti-Somoza; on the basis of the evidence in the possession of the
and support the opposition front through formation and Court, for the purpose of attributing to the United
training of action teams...” States the acts committed by the contras in the course
[109] Here it is relevant to note that in May 1983 the of their military or paramilitary operations in
assessment of the Intelligence Committee, in the Report Nicaragua. Al1 the forms of United States participation
referred to in paragraph 95 above, was that the contras mentioned above, and even the general control by the
"constitute[d] an independent force" and that the "only respondent State over a force with a high degree of
element of control that could be exercised by the dependency on it, would not in themselves mean,
United States" was "cessation of aid". Paradoxically without further evidence, that the United States directed
this assessment serves to underline, a contrario, the or enforced the perpetration of the acts contrary to
potential for control inherent in the degree of the human rights and humanitarian law alleged by the
contras' dependence
Eunice Soriano on aid.
Baliong | based YetPandi’s
on Atty. despite the discussions,
syllabus, heavy applicant
slides, State.bySuch
and the books acts could
Henriksen, well
Akehurst, beShaw
and committed
156 by
subsidies and other support provided to them by the members of the contras without the control of the
United States, there is no clear evidence of the United United States. For this conduct to give rise to legal
States having actually exercised such a degree of responsibility of the United States, it would in principle
control in al1 fields as to justify treating the contras as have to be proved that that State had EFFECTIVE
2019, EH 402) Jerusalem, 1961
applicant State. Such acts could well be committed by 7.2.2. ACTS PERFORMED BY STATE
members of the contras without the control of the ORGANS EXERCISING
United States. For this conduct to give rise to legal GOVERNMENTAL AUTHORITY
responsibility of the United States, it would in principle
have to be proved that that State had EFFECTIVE ART 5, ARSIWA. Conduct of persons or entities
CONTROL of the military or paramilitary operations exercising elements of governmental authority. The
in the course of which the alleged violations were conduct of a person or entity which is not an organ of
committed. the State under ART 4 but which is empowered by the
law of the State to exercise elements of governmental
[116] The Court does not consider that the assistance authority shall be considered an act of the State under
given by the United States to the contras warrants the international law, provided the person or entity is
conclusion that these forces are subject to the United acting in that capacity in the particular instance.
States to such an extent that any acts they have
committed are imputable to that State. It takes the view 7.2.3. ATTRIBUTION FOR ACTS BY ORGANS ON
that the contras remain responsible for their acts, and “LOAN” FROM ANOTHER STATE
that the United States is not responsible for the acts of
the contras, but for its own conduct vis-à-vis ART 6, ARSIWA. Conduct of organs placed at the disposal
Nicaragua, including conduct related to the acts of the of a State by another State. The conduct of an organ
contras. What the Court has to investigate is not the placed at the disposal of a State by another State shall
cornplaints relating to alleged violations of be considered an act of the former State under
humanitarian law by the contras, regarded by international law if the organ is acting in the exercise of
Nicaragua as imputable to the United States, but rather elements of the governmental authority of the State at
unlawful acts for which the United States may be whose disposal it is placed.
responsible directly in connection with the activities of
the contras. JALOUD v. NETHERLANDS, 20 November 2014,
ECHR
ISSUE 6: SECOND ELEMENT OF STATE
RESPONSIBILITY. Was there a breach by the US of FACTS: AT 2:12 am in April 2004, an unknown car
an international obligation in its connection with the approaching a vehicle checkpoint in a town in Iraq.
activities of the contras? From inside the car, shots were fired at personnel
guarding the checkpoint all of them members of the
RULING: [239-245] by its support of the contras, to Iraqi Civil Defence Corps (ICDC). The guards
coerce Nicaragua in respect of matters in which each returned fire. No one was hit and the car drove off.
State is permitted to decide freely, and that the Netherlands service personnel were called to the spot.
intention of the contras themselves Fifteen minutes later, MErcededs car approached at
was to overthrow the present: Government of speed. It hit one of several barrels set out in the middle
Nicaragua. It considers that if one State, with a view to of the road to form the checkpoint but continued to
the coercion of another State, supports and assists advance. Shots were fired at the car. Azhar Jaloud
armed bands in that State whose purpose is to who was in the front passenger seat was hit in several
overthrow its government, that amounts to an places and died.
intervention in its internal affairs, whatever the political
The driver testified that he did not notice the
objective of the State giving support.
checkpoint until it was too late to avoid hitting the two
It therefore finds that the support given by the
barrels and it was to his complete surprise that the car
United States to the military and paramilitary activities
had been fired at.
of the contras in Nicaragua, by financial support,
training, supply of weapons, intelligence and logistic IN the domestic proceedings, the public
support, constitutes a clear breach of the principle of prosecutor stated that Jaloud had been presumably hit
non-intervention. by an Iraqi bullet , that the Netherlands servicemen
who also fired at the vehicle was entitled to claim self-
defence, and that for that reason, no Netherlands
service personnel
and the books by had been designated
Henriksen, suspects.
Akehurst, and Shaw 157
Counsel for the applicant countered that there

was nothing to support the suggestion that Jaloud had
been killed by an Iraqi bullet, that the number of shots
2019, EH 402) Jerusalem, 1961
defence, and that for that reason, no Netherlands under war crimes legislation. Under criminal law he
service personnel had been designated suspects. would be entitled to claim self-defence.
Counsel for the applicant countered that there SO why were Netherlands military present in Iraq???
was nothing to support the suggestion that Jaloud had
been killed by an Iraqi bullet, that the number of shots From 2003 to 2005 Netherlands troops
fired was disproportionate violence, that Lieutenant A. participated in the Stabilization Force in IRag (SFIR).
had failed to fire a warning shot, and that in accordance They were stationed in a province under the command
to ART 50 of the First Additional Protocol to the of an officer of the armed forces of the United States.
Geneva Conventions, Jaloud ought to have been This participation was governed by a memorandum of
considered a civilian in the absence of any indication to understanding between the UK and the Kingdom of
the contrary and ought therefore not to have been Netherlands. This was by request of the British that
subjected to aimed rifle fire, and that the use of lethal Netherlands units will be deployed.
force had been unnecessary.
The basis for this was the UNSC Resolution
The prosecutor’s public statement also 1483. It appeals to Member States “to assist the people
contained the following passage: of Iraq in their efforts to reform their institutions and
rebuild their country and to contribute to conditions of
“On the basis of UN Security Council stability and security...” This resolution provides basis
Resolution 1483, the special for Member States to send troops to Iraq. There was
responsibilities of the US and the UK also a distinction made between the US and the UK
as occupying powers were recognized. which are active in Iraq in the capacity as occupying
Unlike the British forces, Netherlands powers, and states which do not have that capacity.
were not to be considered as an
occupying power in Iraq: SFIR counts Thus, the SFIR consists of a coalition of
as a peacekeeping operation for the participating countries led by the US and the UK.
Netherlands...the role of the There are also Rules of Engagement (ROE) which are
Netherlands armed forces should instructions to military units setting out the
remain limited to supporting the British circumstances, conditions, degree, and modality of the
in their appointed territory in southern permitted use of force. As is the practice in peace
Iraq. The legitimisation for the use of operations, Netherlands shall take over the ROE of the
the functional force by SFIR is not to lead nation, in this case, UK. Netherlands canmake
be found in ius in bello, but in the changes to the instructions for the use of force based on
Security Council mandate.” domestic directives and considerations.
The prosecutor further argued that no violation The entire operation in Iraq is under the
of the Convention could be found since the Convention command of US CENTCOM. Iraq was divided into
did not bind Netherlands troops in Iraq: the Netherlands four sectors and UL was in charge of the south of Iraq.
had NOT exercised EFFECTIVE AUTHORITY in The Netherlands battalion was under the operational
Iraq. control of the British division.
Further, it was the contention of the Court of Netherlands argues it cannot be held liable
Appeals that Netherlands serviceman remained subject since the authority lay elsewhere: the US and UK as the
to Netherlands criminal jurisdiction wherever he might “occupying powers,” or with the UK alone as the lead
be in the world; however, UNSC Resolution 1483 nation in south-eastern Iraw holding command over
indicated that cooperating States did not have the status Netherlands contingent of the SFIR.
of occupying powers, and the armed conflict had ended
by the time of Jaloud’s death. Even assuming the ISSUE: Are the acts of the Netherlands agents
existence of an armed conflict, given the circumstances, attributable to Netherlands?
it would not be feasible to prosecute Lieutenant A. RULING:
under war crimes legislation. Under criminal law he State
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, andagent authority
the books and control
by Henriksen, Akehurst, and Shaw 158
would be entitled to claim self-defence.
[135]. .. [T]he Court has recognised the exercise of
SO why were Netherlands military present in Iraq??? extra-territorial jurisdiction by a Contracting State
when, through the consent, invitation or acquiescence
From 2003 to 2005 Netherlands troops
2019, EH 402) Jerusalem, 1961
State agent authority and control [138] Another exception to the principle that
jurisdiction under Article 1 is limited to a State’s own
[135]. .. [T]he Court has recognised the exercise of territory occurs when, as a consequence of lawful or
extra-territorial jurisdiction by a Contracting State unlawful military action, a Contracting State exercises
when, through the consent, invitation or acquiescence effective control of an area outside that national
of the Government of that territory, it exercises all or territory. The obligation to secure, in such an area, the
some of the public powers normally to be exercised by rights and freedoms set out in the Convention, derives
that Government (Banković, cited above, § 71). Thus from the fact of such control, whether it be exercised
where, in accordance with custom, treaty or other directly, through the Contracting State’s own armed
agreement, authorities of the Contracting State carry forces, or through a subordinate local administration
out executive or judicial functions on the territory of (Loizidou (preliminary objections), cited above,
another State, the Contracting State may be responsible
for breaches of the Convention thereby incurred, as Where the fact of such domination over the
long as the acts in question are attributable to it rather territory is established, it is not necessary to determine
than to the territorial State whether the Contracting State exercises detailed control
over the policies and actions of the subordinate local
[136] In addition, the Court’s case-law demonstrates administration. The fact that the local administration
that, in certain circumstances, the use of force by a survives as a result of the Contracting State’s military
State’s agents operating outside its territory may bring and other support entails that State’s responsibility for
the individual thereby brought under the control of the its policies and actions. The controlling State has the
State’s authorities into the State’s Article 1 jurisdiction. responsibility under Article 1 to secure, within the area
This principle has been applied where an individual is under its control, the entire range of substantive rights
taken into the custody of State agents abroad. For set out in the Convention and those additional Protocols
example, in Öcalan v. Turkey [GC], no. 46221/99, § 91, which it has ratified. It will be liable for any violations
ECHR 2005-IV, the Court held that ‘directly after of those rights (Cyprus v. Turkey, cited above, §§ 76-
being handed over to the Turkish officials by the 77).
Kenyan officials, the applicant was effectively under
Turkish authority and therefore within the jurisdiction [139] In determining whether effective control exists,
of that State. In Al-Saadoon and Mufdhi v. the United the Court will primarily have reference to the strength
Kingdom (dec.), no. 61498/08, §§ 86-89, 30 June 2009, of the State’s military presence in the area (see
the Court held that two Iraqi nationals detained in Loizidou (merits), cited above, §§ 16 and 56; Ilaşcu,
British-controlled military prisons in Iraq fell within the cited above, § 387). Other indicators may also be
jurisdiction of the United Kingdom, since the United relevant, such as the extent to which its military,
Kingdom exercised total and exclusive control over the economic and political support for the local
prisons and the individuals detained in them. Finally, in subordinate administration provides it with influence
Medvedyev and Others v. France [GC], no. 3394/03, § and control over the region (see Ilaşcu, cited above, §§
67, ECHR 2010-..., the Court held that the applicants 388-394)....”
were within French jurisdiction by virtue of the
exercise by French agents of full and exclusive control As applied in this case...
over a ship and its crew from the time of its
interception in international waters. The Court does not [142] Turning first to the international-law background,
consider that jurisdiction in the above cases arose the Court points out that the status of “occupying
solely from the control exercised by the Contracting power” within the meaning of Article 42 of the Hague
State over the buildings, aircraft or ship in which the Regulations, or lack of it, is not per se determinative.
individuals were held. What is decisive in such cases is Although it found that concept relevant in Al-Skeini
the exercise of physical power and control over the (cited above, § 143) and in Al-Jedda v. the United
person in question Kingdom [GC], no. 27021/08, § 77, ECHR 2011, the
Court did not need to have recourse to it in finding that
Effective control over an area the responsibility of Turkey was engaged in respect of
events in northern Cyprus (see, inter alia, Loizidou v.
Turkey
Eunice Soriano Baliong | based on Atty. Pandi’s syllabus, discussions, slides, (preliminary
and the objections),
books by Henriksen, 23 March
Akehurst, 1995,
and Shaw 159Series
[138] Another exception to the principle that A no. 310, and Cyprus v. Turkey [GC], no. 25781/94,
jurisdiction under Article 1 is limited to a State’s own ECHR 2001-IV), or that of Russia in respect of the
territory occurs when, as a consequence of lawful or situation in Moldovan territory east of the Dniester
unlawful military action, a Contracting State exercises (see, inter alia, Ilaşcu and Others v. Moldova and
2019, EH 402) Jerusalem, 1961
Turkey (preliminary objections), 23 March 1995, Series 7.2.4. RESPONSIBILITY FOR ACTS ULTRA
A no. 310, and Cyprus v. Turkey [GC], no. 25781/94, VIRES
ECHR 2001-IV), or that of Russia in respect of the Ultra vires acts—an act contrary to orders or instructions
situation in Moldovan territory east of the Dniester or in excess of authority
(see, inter alia, Ilaşcu and Others v. Moldova and
Russia [GC], no. 48787/99, ECHR 2004-VII ART 7, ARSIWA. Excess of authority or contravention
of instructions. The conduct of an organ of a State or of a
[143] the fact of executing a decision or an order given person or entity empowered to exercise elements of
by an authority of a foreign State is not in itself governmental authority shall be considered an act of the
sufficient to relieve a Contracting State of the State under international law if the organ, person, or entity
obligations which it has taken upon itself under the acts in that capacity, even if it exceeds its authority or
Convention... The respondent Party is therefore not contravens instructions.
divested of its “jurisdiction”, within the meaning of
Article 1 of the Convention, solely by dint of having
accepted the operational control of the commander of VELASQUEZ RODRIGUEZ v. HONDURAS,
MND (SE), a United Kingdom officer. The Court notes Judgment, 29 July 1988, IACtHR Series C, No. 4
that the Netherlands retained “full command” over its (1988)
military personnel, as the Ministers of Foreign Affairs FACTS: Manfredo Velasquez, a student at the
and of Defence pointed out in their letter to Parliament. National Autonomous University of Honduras was
[147] It appears from the Memorandum of violently detained without a warrant by members of the
Understanding for MND (C-S), as well as the excerpt National Office of Investigations of the Armed Forces
of the Memorandum of Understanding for MND-SE to of Honduras. Several eyewitnesses reported that he and
which the Government have afforded the Court access others were taken to cells of Public Security Forces
(see paragraph 100 above), that while the forces of Station, accused of alleged political crimes and
nations other than the “lead nations” took their day-to- subjected to harsh interrogations and cruel torture.
day orders from foreign commanders, the formulation Ruling: [153] International practice and doctrine have
of essential policy – including, within the limits agreed often categorized disappearances as a crime against
in the form of Rules of Engagement appended to the humanity, although there is no treaty in force which is
Memoranda of Understanding, the drawing up of applicable to the State Parties to the Convention and
distinct rules on the use of force – remained the which uses this terminology.
reserved domain of individual sending States
[154] The State has the right and duty to guarantee its
[149] Although Netherlands troops were stationed in an security. It is also indisputable that all societies suffer
area in south-eastern Iraq where SFIR forces were some deficiencies in their legal orders. However,
under the command of an officer from the United regardless of the seriousness of certain actions and
Kingdom, the Netherlands assumed responsibility for culpability of the perpetrators of certain crimes, the
providing security in that area, to the exclusion of other power of the State is not unlimited, nor may the State
participating States, and retained full command over its resort to any means to attain its ends.
contingent there
[155] The kidnapping of a person in an arbitrary
[151] That being so, the Court cannot find that the deprivation of liberty, an infringement of a detainee’s
Netherlands troops were placed “at the disposal” of any right to be taken without delay before a judge and to
foreign power, whether it be Iraq or the United invoke the appropriate procedures to review the legality
Kingdom or any other power, or that they were “under of the arrest, all in violation of ART 7 of the
the exclusive direction or control” of any other State Conventino which recognizes the right to personal
(compare, mutatis mutandis, Article 6 of the liberty.
International Law Commission’s Articles on State
Responsibility. [157] The practice of disappearances often involves
secret execution without trial, followed by concealment
of the body to eliminate any material evidence of the
crimeandand to ensure
the books the impunity
by Henriksen, ofand
Akehurst, those responsible.
Shaw 160
This is a flagrant violation of the right to life,
recognized in ART 4 of the Convention.
[160] This requires the Court to examine the condition

2019, EH 402) Jerusalem, 1961
of the body to eliminate any material evidence of the 165. The first obligation assumed by the States Parties
crime and to ensure the impunity of those responsible. under Article 1( 1 ) is " to respect the rights and
This is a flagrant violation of the right to life, freedoms " recognized by the Convention. The exercise
recognized in ART 4 of the Convention. of public authority has certain limits which derive from
the fact that human rights are inherent attributes of
[160] This requires the Court to examine the condition human dignity and are, therefore, superior to the power
under which a particular act, which violates one of the of the State. Thus, the protection of human rights must
rights recognized by the Convention, can be imputed to necessarily comprise the concept of the restriction of
a State party thereby establishing its international the exercise of state power.
responsibility.
166. The second obligation of the States Parties is to "
[161] Article 1(1) of the Convention provides: ensure " the free and full exercise of the rights
ART 1. Obligation to Respect Rights. recognized by the Convention to every person subject
The States Parties to this Convention to its jurisdiction. This obligation implies the duty of
undertake to respect the rights and the States Parties to organize the governmental
freedoms recognized herein and to apparatus and, in general, all the structures through
ensure to all persons subject to their which public power is exercised, so that they are
jurisdiction the free and full exercise of capable of juridically ensuring the free and full
those rights and freedoms, without any enjoyment of human rights. As a consequence of this
discrimination for reasons of race, obligation, the States must prevent, investigate and
color, sex, language, religion, political punish any violation of the rights recognized by the
or other opinion, national or social Convention and, moreover, if possible attempt to
origin, economic status, birth, or any restore the right violated and provide compensation as
other social condition." warranted for damages resulting from the violation.
[163] The Commission did not specifically allege the [172] in principle, any violation of rights recognized by
violation of Article 1( 1 ) of the Convention, but that the Convention carried out by an act of public authority
does not preclude the Court from applying it. The or by persons who use their position of authority is
precept contained therein constitutes the generic basis imputable to the State. However, this does not define
of the protection of the rights recognized by the all the circumstances in which a State is obligated to
Convention and would be applicable, in any case, by prevent, investigate and punish human rights violations,
virtue of a general principle of law, iura novit curia, on nor all the cases in which the State might be found
which international jurisprudence has repeatedly relied responsible for an infringement of those rights. An
and under which a court has the power and the duty to illegal act which violates human rights and which is
apply the juridical provisions relevant to a proceeding, initially not directly imputable to a State ( for example,
even when the parties do not expressly invoke them. because it is the act of a private person or because the
person responsible has not been identified ) can lead to
164. Article 1( 1 ) is essential in determining whether a international responsibility of the State, not because of
violation of the human rights recognized by the the act itself, but because of the lack of due diligence to
Convention can be imputed to a State Party. In effect, prevent the violation or to respond to it as required by
that article charges the States Parties with the the Convention
fundamental duty to respect and guarantee the rights
recognized in the Convention. Any impairment of those [178] In the instant case, the evidence shows a
rights which can be attributed under the rules of complete inability of the procedures of the State of
international law to the action or omission of any Honduras, which were theoretically adequate, to carry
public authority constitutes an act imputable to the out an investigation into the disappearance of Manfredo
State, which assumes responsibility in the terms Velásquez, and of the fulfillment of its duties to pay
provided by the Convention. compensation and punish those responsible, as set out
in Article 1( 1 ) of the Convention.
165. The first obligation assumed by the States Parties
under
EuniceArticle 1( 1 )| based
Soriano Baliong is " on
toAtty.
respect
Pandi’sthe rightsdiscussions,
syllabus, and [179]
slides, andAs
thethe Court
books has verified
by Henriksen, above,
Akehurst, andthe failure
Shaw 161of the
freedoms " recognized by the Convention. The exercise judicial system to act upon the writs brought before
of public authority has certain limits which derive from various tribunals in the instant case has been proven.
the fact that human rights are inherent attributes of Not one writ of habeas corpus was processed. No judge
human dignity and are, therefore, superior to the power had access to the places where Manfredo Velasquez
2019, EH 402) Jerusalem, 1961
[179] As the Court has verified above, the failure of the for the purposes of establishing whether Honduras is
judicial system to act upon the writs brought before responsible under international law for the violations of
various tribunals in the instant case has been proven. human rights perpetrated within the practice of
Not one writ of habeas corpus was processed. No judge disappearances.
had access to the places where Manfredo Velasquez
might have been detained. The criminal complaint was 184. According to the principle of the continuity of
dismissed. the State in international law, responsibility exists both
independently of changes of government over a period
[180] Nor did the organs of the Executive Branch carry of time and continuously from the time of the act that
out a serious investigation to establish the fate of creates responsibility to the time when the act is
Manfredo Velasquez. There was no investigation of declared illegal. The foregoing is also valid in the area
public allegations of a practice of disappearances nor a of human rights although, from an ethical or political
determination of whether Manfredo Velásquez had point of view, the attitude of the new government may
been a victim of that practice. The Commission's be much more respectful of those rights than that of the
requests for information were ignored to the point that government in power when the violations occurred.
the Commission had to presume, under Article 42 of its
Regulations, that the allegations were true. 185. The Court, therefore, concludes that the facts
found in this proceeding show that the State of
The offer of an investigation in accord with Resolution Honduras is responsible for the involuntary
30/83 of the Commission resulted in an investigation disappearance of Angel Manfredo Velásquez
by the Armed Forces, the same body accused of direct Rodríguez. Thus, Honduras has violated Articles 7, 5
responsibility for the disappearances. This raises grave and 4 of the Convention
questions regarding the seriousness of the investigation.
The Government often resorted to asking relatives of VIII
the victims to present conclusive proof of their INTERNATIONAL REGULATION OF THE USE OF
allegations even though those allegations, because they FORCE
involved crimes against the person, should have been
investigated on the Government's own initiative in Atty Pandi: Most scholars posit that the heart of
fulfillment of the State's duty to ensure public order. international law is ART 2(4) of the UN Charter.
This is especially true when the allegations refer to a
practice carried out within the Armed Forces, which, ART 2(4) UN CHARTER
because of its nature, is not subject to private
investigations. No proceeding was initiated to establish All Members shall refrain in their international relations
responsibility for the disappearance of Manfredo from the threat or use of force against the territorial
Velásquez and apply punishment under internal law. integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United
All of the above leads to the conclusion that the Nations.
Honduran authorities did not take effective action to
ensure respect for human rights within the jurisdiction Atty Pandi: It speaks of threats or use of force. Force
of that State as required by Article 1( 1 ) of the need not be actual as dropping bombs, it could actually
Convention. refer to certain acts, which taken together can amount to a
prohibited use of force.
183. The Court notes that the legal order of Honduras One thing is clear, that there is a prohibiton on the use of
does not authorize such acts and that internal law force. What is unclear is the phrase “the territorial
defines them as crimes. The Court also recognizes that
integrity or political independence.”
not all levels of the Government of Honduras were
necessarily aware of those acts, nor is there any Some scholars argue that it can only be use of force if
evidence that such acts were the result of official directed against TIPI. This is the restrictive interpretation.
orders. Nevertheless, those circumstances are irrelevant
for the Soriano

Eunice purposes of establishing
Baliong | based on Atty.whether Honduras
Pandi’s syllabus, is
responsible under international law for the violations of
human rights perpetrated within the practice of
disappearances.
2019, EH 402) Jerusalem, 1961
The more liberal interpretation is that any and all use of called non-enforceable measures. They are non-forcible
force, regardless of where directed is use of force. actions. If the UNSC finds they are not sufficient, then it
will authorize use of force under ART 42.
CORFU CHANNEL
Power in Tadic is coercive upon the State. Meaning it is
Remember in this case that there was no direct evidence. binding upon the state and mandatory upon other states.
Because UK needs evidence, it went to unconsented
incursions in Albania without its consent. UK justified it The contrary is also true. If other states impose economic
is not prohibited use of force because it is not directed sanctions on North Korea, and if UNSC says No the
against TIPI. But the ICJ argued otherwise, because the international community would have to obey as well.
moment you enter the territory of another without consent,
that will also constitute prohibited use of force. And ART 40, UN CHARTER
besides the evidence was not used because of the fruit of
the poisonous tree. In order to prevent an aggravation of the situation, the
Security Council may, before making the
NICARAGUA recommendations or deciding upon the measures provided
for in Article 39, call upon the parties concerned to comply
Prohibition of the use of force is found in customary and with such provisional measures as it deems necessary or
treaty law. Operation of one does not preclude the desirable. Such provisional measures shall be without
operation of another which is why they can exist prejudice to the rights, claims, or position of the parties
independently of each other. concerned. The Security Council shall duly take account of
failure to comply with such provisional measures
Was US held liable for the use of force?
Atty Pandi: This is on provisional measures that is
Yes. US committed acts directly on its own without the deemed necessary or desirable.
help of the contras such as the bombing of ports.
OIL PLATFORMS CASE
ART 39, UN CHARTER
Provisional measures are ordered by the UNSC prior to it
The Security Council shall determine the existence of any making a decision on the matter, so as not to defeat what it
threat to the peace, breach of the peace, or act of will eventually decide or order on the matter.
aggression and shall make recommendations, or decide
what measures shall be taken in accordance with Articles Determination and Reaction will take so much time as the
41 and 42, to maintain or restore international peace and UNSC is highly political. Now the situation might be
security. aggravated on the ground, so the remedy is a provisional
order
Atty Pandi: The UN body tasked to maintain security is
the UN Security Council. Now, if you take a look at ART ART 41 UN Charter
39 it provides for two powers of the Security Council.
The Security Council may decide what measures not
1) The power to determine involving the use of armed force are to be employed to
2) The power to decide give effect to its decisions, and it may call upon the
Members of the United Nations to apply such measures.
TADIC CASE These may include complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic,
1) Power to determine—whether there is a breach of radio, and other means of communication, and the
peace severance of diplomatic relations.
2) Power of reaction—what action is necessary or
justified in the particular circumstances Atty Pandi: These are the non-forcible measures short of
the use of force. These may even include diplomatic talks.
It does not mean however, that its powers are unlimited. It
still has to make reports. The UNSC is offered a wide
array of operations such as embargo, economic sanctions,
2019, EH 402) Jerusalem, 1961
But the most important power of the UN is that provided in until the Security Council has taken the measures
ART 42 of the UN CHARTER: necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of
ART 42, UN CHARTER self-defense shall be immediately reported to the Security
Council and shall not in any way affect the authority and
Should the Security Council consider that measures responsibility of the Security Council under the present
provided for in Article 41 would be inadequate or have Charter to take at any time such action as it deems
proved to be inadequate, it may take such action by air, necessary in order to maintain or restore international
sea, or land forces as may be necessary to maintain or peace and security.
restore international peace and security. Such action may
include demonstrations, blockade, and other operations by Atty Pandi: Let us dissect 51. All you need is 51 and
air, sea, or land forces of Members of the United Nations. nothing more. 51 is the exception to ART 2(4). IT
describes self-defence as inherent. You need not find it in
Atty Pandi: How many instances are there that you can CIL or treaties. IT goes with sovereignty itself. Individual
use of force? if just one State. Collective is daghan mo. And this is
1) Self-defence what happened in the Nicaragua case, USA, Honduras,
2) Authorization from the UN security council Cosnta Rica, and El Salvador.
3) Express consent. IF the State subject to the attack Next, is an armed attack against a member of the UN. AS
consents to it, and that is to curb insurgencies in its to what constitutes an armed attack is volatile under
territory. And this is related to the responsibility international law?
to protect, as some countries request it.
Does it say anything about who launched an armed attack?
CERTAIN EXPENSES ADVISORY OPINION
No. ART 51 did not indicate only States are the subject of
When the UNGA finds a violation, it can enact measures, armed attack.
such as kicking out of membership a State. IT can enact But if UNSC decides to take control, you can no longer
measures within its sphere of authority but it cannot exercise the right of self-defence.
authorize the use of force. Only the UNSC can do that.
There is also a reportorial requirement to the UNSC
Those measures of the General Assembly are NOT precisely because it can handle it, once you experience an
coercive in nature. armed attack.
How do we interpret UNSC Resolutions? 1) Armed attack
Most provide for this phrase, “to take all appropriate 2) Reportorial requirement
measures.” But there are two other elements:
There is a variance with respect of this phrase. We do not 3) Necessity
interpret them in the same way we interpret treaties. They 4) Proportionality
have a different drafting process. But, we can also refer to
the preliminary text or the records of the deliberations, use All of these must validly concur for you to exercise self-
those documents to see a pattern. What was the prevailing defence.
atmosphere within the UNSC in relation to this particular
incident. How would we know if the UNSC decides to take control?
RIGHT OF SELF-DEFENSE Phrases in resolutions such as “decides to remain seized of

the matter.”
ART 51, UN CHARTER
Can you exercise your right to self-defense against non
Nothing in the present Charter shall impair the inherent state actors?
right of individual or collective self-defense if an armed
attack occurs against a Member of the United Nations,
2019, EH 402) Jerusalem, 1961
In the Armed Activities in the Territory of Congo. ICJ ANTICIPATORY SELF-DEFENSE

seemed to suggest that you cannot launch it against a non-
state actor. Because when ART 51 was charted, they had Atty Pandi: You must make a distinction between
no non-state actors powerful enough to launch these necessity and proportionality in human rights law, and in
attacks. use of force.
Bush doctrine provides that non-state actors are more NECESSITY—show a necessity of self-defence, instant,
powerful than states, hence, it is justified. Because what is overwhelming, leaving no choice of means, and no
stopping a state from using non-state actors. moment of deliberation.
What is an armed attack? Can this apply to nuclear weapons?
Most use of force are down outside. There is no room for deliberation.
The more contentious issue is gravity. The problem was PROPORTIONALITY—was the measure taken
given in Nicaragua made a distinction between the most proportionate under the circumstances. You have to strike
grave forms of use of force, from other less grave forms. a balance between your injury. This does not require
This distinction was reiterated in the Oil Platforms Case. absolute equivalence.
US justified it as a valid exercise of self-defence. It was
just one vessel. As if saying that gravity is actually a A lot of scholars say that Necessity and Proportionality are
standard. marginal considerations. You only consider them after the
first two requisites are met.
Thus, it is on a case to case basis.
They go hand in hand. All four must go together.
How did the ICJ describe this?
IX
What US did by funding the contras is unlawful THE LAW OF ARMED CONFLICT
intervention, but it is NOT use of force because it is not in
its gravest form.
Atty Pandi: The MARTENS CLAUSE—the clause
ACCUMULATION OF EVENTS DOCTRINE found in the Hague Conventions. They cannot agree on
what to do with civilians.
Atty Pandi: There may be small attacks, but if you
combine them, they will be categorized as an attack big In the absence of everything, ask yourself: Is the act
enough to constitute an armed attack. consistent with conscience or humanity?
In the Armed Activities in the Territory of Congo, you have In IHL, Lotus doctrine does not apply. Even if not
rebel forces in the DRC attacking Uganda, and of course prohibited, if it goes against conscience, do not do it.
Uganda respondend with armed attacks. No attribution to
DRC because there is no link to rebels and DRC. Uganda This is the PRINCIPLE OF HUMANITY.
argued that the combination of those attacks would have
been a grave form of the use of force. This issue was not “In the extreme exercise of self-defence, a State may use
addressed because it is a non-state actor. nuclear weapons, provided that it is within the limits of
international humanitarian law.”
In the Oil Platforms case, it is between Iran and the US.
US argued argued that considering all the other small Martens clause only applies if there is armed conflict. In
infractions aside from Isle City, it will amount to a use of the conduct of hostilities. So it does not govern
force. ICJ did not even address the accumulation of events possession.
doctrine. ARMED CONFLICT
So as it stands, it still floats. 1) International Armed Conflict
2) Non-international Armed Conflict
2019, EH 402) Jerusalem, 1961
Atty Pandi: The Hague Conventions and the Geneva IHL exists not to prohibit armed conflict, because war is
Conventions govern your law on armed conflict. Rules on indispensable. So the duty is to regulate it, not to prevent
International humanitarian law. it.
When is there IAC? PRINCIPLE OF DISTINCTION
If it is between two high-contracting States. Atty Pandi: Who are the combatants?
When is there NIAC? Armed forces (regulars, dissidents, organized ressitance

movements) and their volunteers; other militias; levee en
The State and its own rebel groups, or organized rebel masse (poor people placed in a situation out of the spur of
groups, or resistance conflicts. the moment organized and fought the occupiers, the
4criterion, not required in levee en masse because theya re
But there has to be certain requisites. One, there must be placed in a situation they cannot organize themselves)
organization, and conflict must reach a certain level of
intensity. Revolving doctrine principle—a civilian transforms into
a combatant when it directly participate in the hostilities.
Organization—there has to be headquarters, chain of You lose your civilian status the moment you take-up
command, specific territory. Ability to purchase, distribute arms. But it is on-off2x. If you are combatant in battle A,
weapons.
does not mean you are still combatant in battle B. You can
Intensity—it has to be protracted. This pertains to the revolve.
conflict. So when can we say there is direct participation?
But when can we say a rebel group is a rebel group for You must cause certain degree of harm, there must be
purposes of IHL? causal link, harm must be related or because of the armed
1) Commander conflict.
2) Distinct sign If you are not affiliated and you caused harm, you are a
3) Carries arms openly—in international law, we civilian. The harm must be related to the AC.
have what we call, the combatants’ privilege
(when you are a member of the armed forces, or In IAC civilian must directly participate.
resistance group, or living en masse: ) a) immunity In NIAC, mere membership is enough to vest you with
b) prisoner-of-war status combatant status.
Benefits: you are immune from suit, when war
ceases survivors with POW status cannot be In case of doubt, favour civilian status.
tortured or killed.
Hence it is important to carry arms openly to be If you are a civilian giving food, and treating the wounded,
identified as a combatant. are you directly participating in the hostility?
4) Acts in accordance with law—to be able to benefit
from the privileges of combatant status Not really. But if your provided intelligence of a tactical
nature. It must be a contribution during the conduct of
When is there Trans-national Armed Conflict? those hostilities. It is a question of fact.
If Philippines consents that hostilities be done by the USA X

to its territory to quell insurgencies. This is trans-national THE UN SYSTEM and the 6 PRINCIPAL
armed conflict. ORGANS OF THE UNITED NATIONS
Battle-field Status in IAC

Important Historical Points About the UN:
Atty Pandi: Why is it important to determine who is a
combatant and who is a civilian? What is the objective of  It was established after the WWII
an armed conflict?
2019, EH 402) Jerusalem, 1961
 Principal bases: Subsidiary Bodies

1. Sovereign equality of states
2. Fulfilment in good faith of the obligations of  Peacebuilding Commission
the Charter  UN Compensation Commission
3. Peaceful settlement of disputes  International Criminal Tribunals for the Former
4. Prohibition on the use of force Yugoslavia and Rwanda
Six Principal Organs of the UN: Two Principal Categories of the Security Council’s Power:
1. Security Council 1. Peaceful settlement of disputes

2. General Assembly 2. Adoption of enforcement measures
3. Economic and Social Council
4. Trusteeship Council Other Functions:
5. Secretariat
6. International Court of Justice  In case of trusteeship territories, designated
strategic areas fall within the authority of the
I. THE SECURITY COUNCIL Council not the General Assembly
Primary responsibility: maintenance of international  Admission, suspension, and expulsion of member
peace and security. states is upon the recommendation of the Council
 Amendments to the UN Charter require ratification
Membership: of ALL the permanent members (in addition to the
two-thirds vote of the Assembly and ratification by
 15 members (5 are permanent members) two-thirds of UN members)
 Permanent members: USA, UK, Russia, China,  Elects judges of the International Court together
France (they are chosen on the basis of power with the Assembly
politics in 1945. They have veto power.
 Under ART 27 of the Charter, on all but II. THE GENERAL ASSEMBLY
procedural matters, decisions of the council must Primary Function: parliamentary body of the UN
be made by an affirmative vote of nine members, organisation; essentially a debating chamber, a forum for
including the concurring votes of the permanent the exchange of ideas and discussion of wide-ranging
members category of problems; meets annually
 A negative vote by any of the permanent members Membership:
is sufficient to veto any resolution of the Council,
except, procedural questions where nine  Consists of representatives of ALL member states
affirmative votes are all that is required (at present, there are 192)
 ART 4, UN Charter, membership to the UN is
Committees: open to all other peace-loving states which accept
the obligations contained in the present Charter,
 Committee on Experts on Rules of Procedure and, in the judgment of the organisation, are able
 Committee on Admission of New Members and willing to carry out these obligations
 Committe on Council  ART 5, UN Charter, membership to the UN may
be suspended by the General Assembly upon
Ad Hoc Committees: recommendation of the Security Council where the
member state concerned is the object of preventive
 Governing Council of the UN Compensation
or enforcement action by the Security Council
Commission
 ART 6, UN Charter, allows for expulsion of a
 Counter-Terrorism Committee
member by the General Assembly upon
 Sanctions committees covering particular states recommendation of the Security Council, where
under sanction the member state has persistently violated the
 Committee concerning persons and bodies Principles contained in the Charter
associated with Al-Qaida and Taliban
2019, EH 402) Jerusalem, 1961
Voting: Other functions:
 ART 18, UN Charter. Each member has one  Initiate or make studies upon a range of issues and
vote only, despite widespread disparities in make recommendations to the General Assembly,
populations and resources between states the member of the UN, and other relevant
 Decisions on important questions including the specialises agencies
admission of new members and  Prepare draft conventions for submission to the
recommendations relating to international Assembly
peace and security are to be made by a two-  Call international conferences
thirds majority of members present and voting
Membership:
Q: Can the General Assembly bind its members?
 54 members elected by the Assembly for three
Only for internal matters such as the budget. But year terms, with staggered elections, and each
in other matters it cannot. It is NOT a legislature in that member has one vote
sense, and its resolutions are purely recommendatory.
Such resolutions however, may be binding if they reflect Functional Commissions:
rules of customary international law and they are
significant as instances of state practice that may lead to 1. Statistical Commission
the formation of a new customary rule. But Assembly 2. Commission on Human Rights (came to an end in
resolutions in themselves, cannot establish binding 2006)
obligations for member states. 3. Commission on Status of Women
4. Commission on Sustainable Development
Six Main Committees: Standing Committees and Expert Bodies:
 Disarmament and International Security 1. Commission on Transnational Corporations

 Economic and Financial 2. Commission on Human Settlements
3. Committee on Natural Resources
 Social, Humanitarian, and Cultural
4. Committee on Economic, Social, and Cultural
 Special Political and Decolonisation
Rights
 Administrative and Budgetary 5. Committee on New and Renewable Sources of
 Legal Matters Energy and on Energy for Development
Ad hoc Bodies: NOTE: The ECOSOC discusses a wide range of matters,
but its powers are restricted and its recommendations are
 International Law Commission
not binding upon UN member states
 UN Commission on International Trade Law
 UN Institute for Training and Research IV. TRUSTEESHIP COUNCIL
 The Council for Namibia
 UN Relief and Works Agency Primary Obligation: established to supervise the trust
territories created after the end of WWII.
*The Human Rights Council established in 2006, is
elected and reports to the Assembly Trust territories—consist of mandated territories, areas
detached from enemy states as a result of WWII and other
III. ECONOMIC AND SOCIAL COUNCIL territories voluntarily placed under the trusteeship system
by the administering authority
Primary function: performance of activities in the
economic and social spheres, most prominently, the  The only former mandated territory which was
establishment of a wide range of economic, social, and NOT placed under the new system of granted
human rights bodies. independence was South West Africa
2019, EH 402) Jerusalem, 1961
 Palau- last remaining trust territory which gained Composition:

independence on 1 October 1994
 15 judges, elected for terms of office of nine years
V. UN SECRETARIAT by the UN General Assembly and the Security
Primary Duty: the international civil service Council
Membership: NOTE: It is assisted by a Registry, its administrative

organ, and its official languages are English and French. It
 The Secretary-General—the chief administrative is a successor to the Permanent Court of International
officer of the UN. Appointed by the General Justice.
assembly upon unanimous recommendation by the
Security Council PRINCIPLES IN THE CONDUCT OF HOSTILITIES:
(Current Secretary General: Antonio Guterres, 9th
ART 48, Additional Protocol I
Sec-Gen, 1 January 2017, Portugese
ART 52, Additional Protocol I
 Staff—appointed by ART 101, UN Charter, on the
basis of efficiency, competence, and integrity with ART 51(5)(b)
due regard “to the importance of recruiting the
staff on as wide a geographical basis as possible.” If you attack a church or hospital, there can be no
discussion on proportionality.
Functions of the UN Secretary General:
PRINICPLE OF PROPORTIONALITY
1. ART 99, UN Charter. Brings to the attention of the
Security Council any matter which he feels may “excessive in relation to the concrete and direct military
strengthen the maintenance of international peace advantage anticipated...”
and security
2. Exercises good offices to resolve or contain PRINCIPLE OF MILITARY NECESSITY
international crises. Limitation x precaution
3. Marks and influences developments in
international law The attacking entity is not the sole judge of the military
4. Acts out any function assigned to him by the other necessity. It is a post evaluation.
organs of the United Nations
Example: ARTI 35, Additional Protocol I
> Authorizing the Sec-Gen to take action
in the Congo crisis of 1960 Continuous combat function—applies non-international
>Authorizing the Sec-Gen to withdraw the armed conflict. You must have a lasting connection.
UN peacekeeping force in the Middle East
What makes you a member of an organized unit?
VI. INTERNATIONAL COURT OF JUSTICE You must satisfy the conintous combat function.. 1) lasting
connection 2) direct participation
Primary Duty: principal judicial organ of the UN.
Settles, in accordance with international law, legal disputes
submitted to it by States and gives advisory opinions on
legal disputes referred to it by authorized UN organs and
specialized agencies
Established: June 1945 by the Charter of the UN. Began

work in April 1946
Location: Peace Palace, The Hague. (of the six principal

organs, it is the only one NOT located in New York, USA)

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“It is inconceivable that the law of humanity should ever lack for a tribunal.

Where law exists, a court

3.10. TERMINATION AND WITHRDAWAL ................... 61

I  also known as general international law;

Q: But what is to stop a state from simply ignoring it is because it is

2) Another factor is REPUTATION, or the PHILIP MORRIS v. COURT OF APPEALS,

ICHONG v. HERNANDEZ, GR No. L-7995, May GONZALES v. HECHANOVA, GR No. L-21897,

In sum: binding agreements, cancelling state visits,

2.3.1. STATE PRATICE—THE OBJECTIVE

1) State practice—objective element; followed as a 1) Consistency of practice

UN Charter, could be perpetrated 2.3.2. OPINIO JURIS—THE SUBJECTIVE

on the coast of Yucatan.

so. It follows that what occurs on board a vessel on the

considerations of political expediency in the various Article 37(a).

been adjudicated in favour of that party be not argued

It must be concluded that the minelaying,

Depending on the circumstances, decisions by Belgian and Netherlands provinces of Limburg

Mr. Hudson considers that there is room to apply here 3. Context

2.8. HIERARCHY OF SOURCES QUESTIONS RELATING TO THE OBLIGATION

Issue 1: Whether being a party to the Convention is

international law authorizes the national State of the

2. Exchange of instruments in the case of multilateral treaties, the usual procedure is

On Question 3: (a) acceptance by another contracting State of a

2. When it appears from the limited number of the PROBLEMATIQUE

Legal Effects of Reservations 3. Object and purpose

LEGAL CONSEQUENCES FOR STATES OF In the absence of specific provisions, a proposed

ART 56, VCLT (i) in relations between themselves and the

unforeseen; the existence of the circumstances at the IV

Ruling: It belongs to the Netherlands. NORTH SEA CONTINENTAL SHELF CASE

Lotus Case (ICJ) Exception: If unlawful use of force is used in order to

separate from that State Examples:

the territory whch is the subject of the dispute is 4.3. INDIVIDUALS

[10] undertake to negotiate a treaty between the Polish

[77] The Court notes that Article 36, paragraph 1 ( b ) , V

[13] so it follows that if these producers concert on the

Eunice Soriano Baliong | based

(just in case you want to know) AFTER THE

Yunis contentions: Yunis argues that the district court

him on the charges of which he was convicted, that the

Basis: 2. NO. It only requires government to establish

of nations? Sick and Shipwrecked Members of Armed Forces at

 In practical terms, it is the State with physical VI

5.2. JURISDICTION TO ENFORCE Immunity—one of the ways by which a national court

5.2.1. EXTRADITION It is based on customary international law.

state together with the protections which that

JUSTICE TRINDADE’s Dissenting Opinion: EMPIRE OF IRAN (1963) 45 ILR 57

Respondent within its own sovereign authority as is the

1) Private Individual Test—classic method of ART 10, UN CJISP

2. Paragraph 1 does not apply: interests of that State;

ART 16 UN CJISP (a) the validity, interpretation or application of the

Types of Property which due to their Purpose or Use are RULING:

Verlinden, subcontracted with Interbuco, a

THE JONES v. MINISTRY OF INTERIOR OF

a case, the foreign state is entitled to claim immunity

Article 13 provides: “Everyone whose rights and

The evidence upon the trial indicated that the purpose

respondents. 6.4 IMMUNITY FROM ENFORCEMENT

refuel and adopting several judicial measures against

The person of a diplomatic agent shall be inviolable. He ART 37, VCDR

ART 27, VCDR 1.Without prejudice to their privileges and immunities, it is

2) Recall [76] The United States contends, furthermore, that

plane when it landed. He had clearly intended to meet

401 Applicant...contended that the crime of of the conflict