PIL Bernas Reviewer

Chapter 7: Territory: Land, Air, Outer Space

Territory in International Law

- Area over which a state has a effective control

- Includes land, maritime areas, airspace, and outer space.

Modes of Acquisition of sovereignty over territory

Traditional Modes of Acquisition:

1. Discovery and occupation
2. Prescription
3. Cession
4. Conquest and subjugation
5. Accretion
1. Discovery and occupation

Occupation – acquisition of terra nullius

- requires effective control

*terra nullius – territory which prior to occupation belonged to no state,

which may have been abandoned by a prior occupant.

“Territories inhabited by tribes or peoples having a social and political

organization were not regarded as terra nullius. It shows that in the case of
such territories the acquisition of sovereignty was not generally considered
as effected unilaterally through “occupation” of terra nullius by original title
but through agreements concluded with local rulers”

– Western Sahara case

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Discovery of terra nullius, moreover, is not enough to establish sovereignty
(Las Palmas Case)

2. Prescription
- Requires effective control
- Required length of effective control is longer than in occupation.
- Might be negated by a demonstrated lack of acquiescence by the prior
occupant.

3. Cession
- Acquisition of territory through treaty
- Ex. Treaty of Paris
- A treaty of cession which is imposed by a conqueror is invalid. Thus,
there may be a situation where what prevails is merely a de facto
regime.

4. Conquest
- Taking possession of a territory through armed force.
- For acquisition of conquered territory, it was necessary that the war had
ended either by treaty or by indication that all resistance had been
abandoned.
- Conqueror must have intention of acquiring the territory and not just of
occupying it temporarily.
- Today, conquest of territory is proscribed by international law.

5. Accretion and Avulsion

- Accretion – gradual increase of territory by the action of nature
- Avulsion – sudden change resulting for instance from the action of
volcano
- Can also lead to sovereignty over territory

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- Sovereignty by operation of nature

Is contiguity a mode of acquisition?

Contiguity – state of bordering or being in direct contact with something

- Las Palmas case argued against contiguity as a basis for sovereignty “It
is impossible to show a rule of positive international law to the effect that
islands situated outside the territorial waters should belong to a state
from the fact that its territory forms part of terra firma.”

Airspace

- each state has exclusive jurisdiction over the air space above its
territory. Therefore, consent for transit must be obtained from the
subjacent nation.

Outer Space

- sovereignty over air space extends only until where outer space begins
- where is that? No definite answer to that question.
- Outer space and celestial bodies are not susceptible to appropriation by
any state.

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Chapter 8: Territory: Law of the sea

Importance of the sea:

- Medium of communication
- Contain vast natural resources

Doctrine of the open seas

- Considers the high seas as res communis(accessible to all)

- Recognized as permissible the delineation of maritime belt(territorial sea)
- by littoral states as an indivisible part of its domain

Convention on the Law of the Sea of 1982 (LOS)

- prevailing law on maritime domain

Territorial Sea

- a belt of sea outwards from the baseline and up to 12 nautical miles

beyond.
 Baselines: Normal or straight
- the lower-water line along the coast as marked on large scale charts
officially recognized by the coastal State
2 ways of drawing the baseline:
1. “Normal” baseline
1. follows the curvatures of the coast and therefore would
normally not consist of straight lines
2. “Straight” baseline
2. Drawn connecting selected points on the coast without
appreciable departure from the general shape of the coast.
 Fisheries Case upholding the “straight baseline method” eventually
became part of convention law.

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  Article 47 of the CLOS allows the use of the “straight baseline
method” for archipelagic states with certain limitations.

 Sovereignty over Territorial Sea

Innocent passage

 Passage that is not prejudicial to the peace, good order or security

of the coastal state.

Internal waters

- All waters landards from the baseline of the territory.

- Same in extent as sovereignty over land
- Not subject to right of innocent passage
- Coastal state may regulate access to its ports.(Nicaragua v US)

Archipelagic waters

- “Where the establishment of a straight baseline in accordance with the

method set forth in Art. 7 has the effect of enclosing as internal waters
areas which had not previously been considered as such, a right of
innocent passage, as provided in this Convention shall exist in those
waters”. –this internal water is referred to as archipelagic waters.
- “an archipelagic state may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious passage of
foreign ships and aircraft through or over its archipelagic waters and the
adjacent territorial sea”.

Bays

- Waters of a bay are considered internal waters of a coastal state

- Rule on bays is found in Art. 10 of the 1982 LOS

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- Historic bays are bays treated by the coastal state as internal waters on
the basis of historic rights acknowledged by other states.

Contiguous zone

- An area of water not exceeding 24 nautical miles from the baseline

- Extends 12 nautical miles from the edge of the territorial sea
- To prevent infringement of its customs, fiscal, immigration or sanitation
authority over its territorial waters or territory and to punish such
infringement.

Exclusive economic zone or “patrimonial sea”

- An area not more than 200 nautical miles beyond the baseline.
- Coastal state has rights over the economic resources of the sea, seabed
and subsoil – but the right does not affect the right of navigation and
overflight of other states.

2 primary obligations:

1. Must ensure through proper conservation and management measures

that the living resources of the EEZ are not subjected to over-
exploitation
1. Includes duty to maintain and restore populations of
harvested fisheries at levels which produce a “maximum
sustainable yield”
2. Must promote the objective of “optimum utilization” of the living
resources
2. Should determine the allowable catch of living resources
- The delimitation of the overlapping exclusive economic zone between
adjacent states is determined by agreement

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The Continental (Archipelagic Shelf)

- Refers to:
 The seabed and subsoil of the submarine areas adjacent to the
coastal state but outside the territorial sea, to a depth of 200m, or
beyond that limit, to where the depth allows exploitation
 The seabed and subsoil of areas adjacent to island
- The coastal state has the right to explore and exploit its natural
resources
- The right does not affect the right of navigation of others
- The right does not extend to non-resource material in the shelf area such
as wrecked ship and their cargoes.

The Deep Seabed: “Common Heritage of Mankind”

- Ares of the sea-bed and the ocean floor, and their subsoil, which lie
beyond any national jurisdiction.
- May not be appropriated by any state or person
- Governed by Art 135 to 153 of the 1982 Convention

Islands

- Can have their own territorial sea, exclusive economic zone and
continental shelf.
- Artificial islands or installation are not “islands”, in the sense of Art. 121.
However, coastal states may establish safety zones around artificial
islands and prescribe safety measures around them.

The High Seas

- All parts of the sea that are not included in the territorial sea or in the
internal waters of the Sea.

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  Subject to 6 freedoms, freedom of:
1. Navigation
2. Overflight – belongs to both civilian and military
flight
3. Fishing – includes the duty to cooperate in taking
measure to ensure the conservation and
management of the living resources of the high
seas.
4. Lay submarine cables and pipelines
5. Construct artificial islands and structures
6. Of scientific research

 Hot pursuit
- Allowed by Art. 111; where there is a good reason to believe that the
foreign vessel has violated laws or regulations of the coastal state
- Pursuit must commence when the foreign vessel is within the internal
waters, the archipelagic waters, the territorial waters or the contiguous
zone of the pursuing state.
- If foreign ship is in contiguous zone; may be pursued only for violations
of the rights of the coastal state in the contiguous zone.
- Must stop as soon as the ship pursued enters the territorial waters of its
own state or of a third state.
- May be only carried out by warships or military aircraft, or any other ship
or aircraft properly marked for that purpose
- Mutatis mutandis – right of the hot pursuit shall also apply to violations
of applicable laws and regulations of the coastal state in the exclusive
economic zone or the continental shelf including the safety zones of the
shelf.

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Settlement of disputes

- Peaceful settlement of disputes is compulsory

- If a bilateral settlement fails, Art. 285 require submission of the dispute
for compulsory settlement in one of the tribunals clothed with
jurisdiction. The alternatives are the International tribunal for the Law of
the Sea, the ICJ, or an arbitral tribunal constituted under the Convention.

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Chapter 9: Jurisdiction of States

Jurisdiction

- Authority to affect legal interests.

- In correspondence to the powers of the government, it can be:
 Legislative jurisdiction – to prescribe the norms of conduct
 Executive jurisdiction – to enforce the norms prescribed
 Judicial jurisdiction – jurisdiction to adjudicate
- It is possible for more than one sovereignty to have jurisdiction over the
same subject matter
 International law limits itself to criminal rather than civil jurisdiction.
 5 principles of jurisdiction:
1. Territoriality
2. Nationality Supported in customary
3. Protective law

4. Universality - finds application in special circumstances

5. Passive personality - does not enjoy wide acceptance

The Territoriality principle

- State has absolute, BUT NOT NECESSARILY EXCLUSIVE, power to

prescribe, adjudicate and enforce rules for conduct that occurs within its
territory. Thus, it is necessary that boundaries be determined.
- To have jurisdiction, occupation is not enough, control must also be
established.
 Effects doctrine
1. A state also has jurisdiction over acts occurring outside its
territory but having effects within it. – enunciated in Lotus
case

2 principles of effects doctrine:

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 1. Subjective territorial principle
o State has jurisdiction to prosecute and punish for
crime commenced within the state but completed
or consummated abroad
2. Objective territorial principle
o State has jurisdiction to prosecute and punish for
crime commenced without the state but
consummated within its territory.
 Lotus Case
 Trail smelter arbitration

The Nationality Principle

- Every state has jurisdiction over its national even when those nationals
are outside the state.
 Blackmer v United States
 Nottebohm Case
 Mejoff v Director of Prisons

The Protective Principle

- State may exercise jurisdiction over conduct outside its territory that
threatens its security as long as that conduct is generally recognized as
criminal by states in the international community.
- Ex: plots to overthrow the government, forging its currency, plot to
break its immigration regulations.
- Limitations are found in US vs Yunis: “the international community has
strictly construed the reach of this doctrine to those offenses posing a
direct, specific threat to national security”.

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The Universality Principle

- Recognizes that certain activities universally dangerous to states and

their subjects, require authority in all community members to punish
such acts wherever they may occur, even absent a link between the state
and the parties or the acts in question.
- Covers piracy, genocide, crimes against humanity, war crimes, aircraft
piracy and terrorism
 Filartiga v Pena-Irala
 Attorney General of Israel v Eichmann
 Eichmann v Attorney-General of Israel

The Passive Personality Principle

- A state may apply – particularly criminal law- to an act committed

outside its territory by a person not its national where the victim of the
act was its national
- Not been ordinarily accepted for ordinary torts or crimes, but is
increasingly accepted as applied to terrorist and other organized attacks
on a state’s nationals by reason of their nationality, or to assassination of
a state’s diplomatic representatives or other officials.
 United States v Fawaz Yunis

Conflicts of Jurisdiction

 modes:
1. The Balancing Test
1. An example would be in the Timberlane lumber co v Bank of
America wherein the court employed a tripartite analysis to
determine whether to assume jurisdiction or not: First, was
there an actual or intended effect on American foreign
commerce. Second, is the effect sufficiently large to present

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 a cognizable injury to the plaintiffs and, therefore, a civil
violation of the anti-trust laws. Third, are the interests of,
and link to, the US..including effects on American foreign
commerce sufficiently strong, vis-à-vis those of other
nations, to justify an assertion of extraordinary authority.
2. International Comity
2. Even when a state has basis for exercising jurisdiction, it will
refrain from doing so if its exercise will be unreasonable.
3. Unreasonableness is determined by evaluation various
factors, such as the link of the activity to the territory of the
regulating state, the connection, such as nationality,
residence or economic activity, between the regulating state
and the person principally responsible for the activity to be
regulated, the character of the activity to be regulated, the
existence of justified expectations that might be protected or
hurt by the regulation, the likelihood of conflict with
regulation by another state.
3. Forum non conveniens
4. If in the whole circumstances of the case it be discovered
that there is a real unfairness to one of the suitors in
permitting the choice of a forum which is not the natural or
proper forum, either on the ground of convenience of trial or
the residence or domicile of parties or of its being the locus
contractus or locus solutionis.
5. Application is discretionary with the court
6. Court needs to weigh private interest factors and public
interest factors.

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Extradition

- Surrender of an individual by the state within whose territory he is found

to the state under whose laws he is alleged to have committed a crime or
to have been convicted of a crime.
- Ex. X committed a crime in country A, but he is found in country B. he
may be extradited or surrendered by country B to country A for the
crimes he committed in country A.
- Governed by a treaty – may cover specific crimes only or all offenses
considered criminal by both states.
 Principles that govern extradition:
1. No state is obliged to extradite UNLESS there is TREATY
2. Differences in the legal system can be an obstacle to
interpretation of what the crime is
3. Religious and political offenses are not extraditable.
 US v Alvarez-Machain
 Secretary of Justice vs Hon. Ralph C. Lantion

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Chapter 10: Immunity from Jurisdiction

Immunity from jurisdiction

- GR: jurisdiction of a state WITHIN its territory is COMPLETE and

ABSOLUTE
2 Categories of Exception:
1. Sovereign immunity – covers both head of state and the state.
2. Immunity of representatives of states or diplomatic and consular
immunities

Immunity of head of state

 Mighell v Sultan of Johore – sultan was sued for breach of promise

to marry in British court. Subject of the suit was private matter and
not a state matter; dismissed; absolute immunity.
 Pinochet case: no longer was a head of state but whose immunity
for official or governmental acts was recognized.
 Regina v Bartle and the Commissioner of Police

State Immunity

- State may not be sued without its consent; found in PH Constitution and
International law. Based on the principle of equality of states: par in
parem non habet imperium.
- Evolved; before reserved only for acts jure imperii(governmental acts)
but not for acts jure gestionis(trading and commercial acts)
- Extends ONLY TO JURE IMPERII
- States have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when it enters
into business contracts.
- “Unauthorized acts of government officials or officers by one whose
rights have been invaded or violated by such acts, for the protection of

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 his rights, is not a suit against the State within the rule of immunity of
the State from suit” – US vs Hon. Luis Reyes.
- Tentative guidelines in determining if the transactions constitutes acts
jure gerstionis or jure imperii – mere entering into a contract by a foreign
state with a private party cannot be the ultimate test(only commences
the inquiry); whether the foreign state is engaged in the activity in the
regular course of business; if NOT – test by its nature; if act is in pursuit
of a sovereign activity/incident – act jure imperii.
- Procedure: in PIL – state/intl agency who wishes to plead
sovereign/diplomatic immunity; request the Foreign Office of the state
where it is sued to convey to court that said defendant is entitled to
immunity; in PH – secure an executive endorsement of its claim of
sovereign/diplomatic immunity; manner of how PH foreign office conves
its endorsement to the court varies.
- Remedy for redress of grievances by the acts of a foreign sovereign: ask
his OWN government to espouse his cause through diplomatic channel
 Republic of Indonesia v Vinzon

Diplomatic and consular immunities

- Official representative of a state are given immunities and privileges

when they are within the territory of another state.
- Personal in the sense that they benefit the person
- Purpose: functional; to enable them to perform their functions properly.

Diplomatic immunities

- Diplomats are concerned with the political relations of states

- See Vienna Convention on Diplomatic Relations
- Diplomatic relations; purely by mutual consent.
- Agreement must first be obtained before the head of mission is sent to a
receiving state.

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- Receiving state is under no obligation to give reasons for refusing an
agreement
- Receiving state may notify anytime and without any explanation declare
the head of mission or any of its member of the diplomatic staff persona
non grata or that any other member of the staff of the mission is not
acceptable
- Sending state may either recall such person or terminate his functions
with the mission
- A person may be declared non grata or not acceptable BEFORE arriving in
the territory of the receiving state.

Consuls and consular immunities

- Consuls are not concerned with political matters; they attend to

administrative and economic issues such as the issuance of visas.
- Codification is found in Vienna Convention on Consular Relations, in force
in 1967.
 US Diplomatic and Consular Staff in Iran Case

Immunity of International Organizations

- See Ch 6

Acts of State Doctrine

- Arose from a series of cases in US where the issue was whether US

courts could consider the validity of acts of a foreign state alleged to be
in violation of international law.
- “Every sovereign state is BOUND TO RESPECT the independence of every
other sovereign state, and the courts of one country will not sit in
judgment on the acts of the government of another, done within its own
territory.” – Underhill vs Hernandez
- Similar to but different from the doctrine of sovereign immunity

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- As a rule NOT of international law but of judicial restraint in domestic law
whereby the courts refrain from making decisions in deference to the
executive who is the principal architect of foreign relations.
- “act of state should not be extended to include the repudiation of a
purely commercial obligation owed by a foreign sovereign or by one of its
commercial instrumentalities” – Alfred Dunhill of London, Inc. v Cuba
- “act of state doctrine does not establish an exception for cases and
controversies that may embarrass foreign governments, but merely
requires that, in the process of deciding, the acts of foreign sovereign
taken within their own jurisdiction shall be deemed valid. Doctrine has no
application to the present case because the validity of a foreign sovereign
act is NOT an issue.” – Kirkpatrick Co vs Environmental Tectonics Corp.

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Chapter 11: State Responsibility

Protection of Aliens

- No state is obliged to admit aliens into its territory UNLESS there is a

treaty requiring it. – based on sovereignty
- However, in reality it is difficult to deny admission to all; thus, states
impose legal standards for admission.
- Once admitted, aliens cannot be expelled without due process.
- Practice of proper treatment of aliens; based on commonality of interest,
- Mistreatment of aliens is a common cause of international responsibility
1. Forms of ill-treatment of foreign nationals:
o Mistreatment by judicial/police authorities
o Unlawful expropriation of property
o Failure to prosecute those who attack foreign
nationals
o Denial of justice/denial of due process of law
- Diplomatic protection
1. Based on the traditional notion that the individual is an
inappropriate subject of international law; must have
recourse to his/her state of nationality for protection
2. Theory: injury to a national abroad is injury to the
individual’s state of nationality.
3. Nottebohm case: in case of dual nationality, an “effective
national link” with the person must exist for a state’s interst
in an individual to be recognized by other states.
- Corporations and shareholders; effective link doctrine
1. Barcelona traction case: Belgium lacked jus standi to exercise
diplomatic protection of shareholders in a Canadian company
with respect to measure taken against the company in Spain.

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 2. Barcelona traction, a company inc in Canada was bankrupt in
Spain. Its shareholders, Belgian nationals seek reparation for
the damages incurred by them due its bankruptcy on the
ground of diplomatic protection. It was ruled that the, an act
infringing only the company’s right do not involve
responsibility towards the shareholders, even if their interests
are affected. In order for the situation to be different, the act
complained of must be aimed at the direct rights of the
shareholders. The right to protect the corporation is
bestowed upon the state of nationality of the corporation,
Canada, NOT Belgium.
- Standard for the Protection of aliens
1. Doctrine of National treatment or equality of treatment
 Aliens are treated in the same manner as nationas.
 Pros: aliens enjoy same benefits as locals
 Cons: if the state is tyrannical and its municipal laws
are harsh and violative of human rights even of its own
citizens, then aliens would likewise be subject to such
harsh laws.
2. Minimum International Standard
 However harsh the municipal laws might be against a
state’s own citizens, aliens should be protected by
certain minimum standard of humane protection.
 Neer Claim: first, that the propriety of the government
acts should be put to the tests of international
standards and second, that the treatment of an alien,
in order to constitute an international delinquency
should amount to an outrage, to bad faith, to willful
neglect of duty or to an insufficiency of governmental

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 action so far short of international standards that every
reasonable and impartial man would readily recognizes
its insufficiency.
- Denial of justice exists when there is denial, unwarranted delay or
obstruction of access to courts, gross deficiency in the administration of
judicial or remedial process, failure to provide those guarantees which
are generally considered indispensable to the proper administration of
justice, or a manifestly unjust judgment. – Harvard Draft Convention on
the Responsibility of States for Damages
- Enforcement of Regimes
 ICJ, when its jurisdiction is appealed to by states in
conflict, can resolve issues of violations of the rights of
aliens.
 Ad hoc tribunals; where claims may also be settled
established for the purpose

Doctrine of State Responsibility

- First determine whether the state can be held responsible for the injury
inflicted to an alien.
- Widely accepted principles for doctrine of state responsibility to apply:

 Elements of an internationally wrongful act

 Attributability of the wrongful act to the state
 Enforcement of the obligation that arises from the
wrongful act.

Internationally wrongful act

- Elements:
 Subjective element – act must be attributable NOT to the persons
or agencies who performed it BUT TO THE STATE ITSELF

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  Objective element – a violation of an international obligation
- What determines the wrongful character of the act is international law
and not internal law.

Attribution to the State

- The acts which can be attributed to the state:

 Acts of state organs
 Acts of other persons
 Acts of revolutionaries
- Caire Claim
- Corfu channel case
- Nicaragua v US
- US v Iran
- Home missionary society claim (US v Britain)
- Short v Iran

Preliminary Objection

- Failure to answer some preliminary objections; effect – claim of denial of

justice may be lost; ground – lack of nationality link
- Failure to exhaust national remedies – applies only cases founded on
diplomatic protection or on injury to aliens.

Reparation

- Full reparation for injury caused by internationally wrongful act

- Injury may consist of any damage(material or moral- must arose in
consequence of the internationally wrongful act of a State)
- Chorzow factory case

Calvo Clause rejected

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- An attempt to limit the ability of a state to give diplomatic protection to
its nationals – later on rejected. The right to seek redress is a sovereign
prerogative of a state and a private individual has no right to waive the
state’s right.

Expropriation of Alien Property

- expropriation – taking of property by the state; tangible/intangible

- Can be an international wrong if it is done contrary to the principle of
international law.
- Expropriation “shall be based on grounds or reasons of public utility,
security or the national inters which are recognized as overriding purely
individual or private interests, both domestic and foreign.
- 1962 UN General Assembly Resolution on the Sovereignty over Natural
Resources

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