MODULE 4 military objects and spare individuals and

The Actors in the International Legal System cultural sights); right to conclude treaties
1. Subjects of International Law - having a legal 12. States are the only actor that can create
personality under international law international law. All other actors derive their rights
2. Legal personality – having rights, powers and/or and obligations from States.
obligations; having legal capacity in the creation of 13. Requirements for Statehood (Montevideo Criteria)
rights and/or obligations a. Permanent Population
3. Active vs Passive legal personality – subject of b. Defined Territory
regulation (“regulating”) /object of regulation c. Government
(“regulated”) d. Sovereignty
4. Actors in the International Legal System e. Statehood is important as only states can
a. States create international law
b. International Organizations 14. Issue of Recognition:
c. Individuals a. Declaratory View – creation of states is a
d. Group of Individuals matter of law and fulfillment of a legal criteria
e. Territories Other than States (relevant criterion - effectiveness)
5. Principle Features of International Legal b. Constitutive View – recognition of other
Personality states is a precondition for statehood (not
a. Capacity to bring claims with respect to favored and has many pitfalls; fulfillment of
breaches of international law Montevideo criteria is enough)
b. Capacity to conclude treaties 15. Contemporary international law is based on the
c. Enjoyment of privileges and immunities from declaratory approach.
the exercise of national jurisdiction 16. Article 3, Montevideo Convention: the political
6. Non-State Actors derive their legal personality from existence of the State is independent of recognition
States. Therefore, States can limit rights and by other states
obligations possessed by NSA. State Government
7. Rights and obligations depend upon the needs of the Legal entity under Representative of the
community, as determined by the State. international law state that is entitled to act
8. Individuals – possess rights and obligations on the State’s behalf
bestowed upon them by the State (by virtue of Actual effects of lack of A decision not to
treaties, international agreements) recognition of a state are recognize a government
a. Rights: human rights law, trade law, laws of of greater legal that claims to represent a
armed conflict importance than those territorial entity is not the
b. Obligation: international criminal law (ex. relating to lack of same as denying that the
war crimes, genocide, crime of aggression, recognition of a entity in question qualifies
crime against humanity) government for statehood
9. BEFORE GOING TO INTERNATIONAL COURT, an 17. Acquisition of New Territory
individual must: a. Cession – purchase of territory from
a. Exhaust Domestic Remedies another State; state that acquires the
b. Principle of Subsidiarity (principle in IL) - territory cannot obtain more rights to the
what individuals can accomplish by their territory than those possessed by the ceding
own initiative and efforts should not be taken state; acquiring state must respect potential
from them by a higher authority rights of third states
10. International Organizations – DEFINITION: b. Accretion – wherein a new land is gradually
established by a treaty or other instrument governed created naturally (in IL, can pertain to all and
by international law; possessing its own international any body of water that can actually form new
legal personality lands or island); MUST BE RESULT OF
a. Rights and Obligations: conclude NATURAL FORCES; accepted as new
agreements; immunity from jurisdiction by territory if it does not infringe upon the rights
national courts of other states/states have given their
11. Group of Individuals consent
a. Peoples – generally recognized to possess c. Occupation – terra nullius; obtaining title to
right to self-determination; right to secede to territory that has never been subject of any
mother state State; acquired when the state
b. Indigenous Groups – right to full enjoyment demonstrates that it exercises effective
as a collective/individuals of all human rights control over the territory and that it has the
and fundamental freedoms; enjoy or free intention of obtaining title
from any kind of discrimination d. Prescription – obtaining title to territory
c. Insurgent Groups and National Liberation previously under the sovereignty of another
Movements – Additional Protocol 1 of 1977 state; through implied consent on the part of
Geneva Convention (should only target the State whose rights are being displaced
by the acquiring State
18. Right to Self-Determination – all people have the
right to freely determine their political status and
pursue their economic, social, and cultural
development
a. Internal Self-Determination: Autonomy –
within the framework of an existing state
b. External Self-Determination: Secession –
arises in the most extreme cases
c. External Self Determination
i. Colonial Peoples – people governed
as part of a colonial empire
ii. Alien subjugation – people subject
to alien subjugation, domination,
exploitation
iii. No meaningful autonomy – people
denied any meaningful exercise of
its right to self-determination within
the state
19. Illegality in the Creation of a State – potentially
emerging state was created in flagrant violation of
basic norms of international law
a. Bangladesh – India invaded Pakistan
b. Turkish Republic of Northern Cyprus –
Turkey invaded and attacked Cyprus
c. Kosovo – NATO launched aerial strikes
against Yugoslavia
20. When Statehood can be denied:
a. Ex Injuria Jus Non Oritur (Law does not
arise from injustice) – statehood to have
been denied to entities that would otherwise
seem to fulfill the formal criteria on the basis
of the principle that legal rights cannot arise
from wrongful conduct
b. Its creation violates the local
population’s right of self-determination
c. Territorial entity created through the
unlawful use of force
21. State Succession – replacement of one state by
another in the responsibility for the international
relations of territory
a. Tabula Rasa Approach – population of the
succeeding territory ceases to be protected
by human rights conventions until the
emerging state decides to become a party
i. XPN: territorial treaties; boundary
treaties
ii. UTI POSSIDETIS JURIS – claimed to be discovered. A title that is inchoate
geographical boundaries created by
treaties remain in force regardless
of whether or not the boundaries
coincide with ethnic, tribal, religious
or political affiliations
b. Continuity Approach - protection continues
notwithstanding change in government of
the State party, including dismemberment in
more than one State or State succession
22. Extinction – state may cease to exist if it
disintegrates and subsequently splits into a range of
new states; it may alter its legal status after its own
free will and dissolve itself
Island of Palmas (Netherlands vs US)
Regardless of whether a claim to title is based in
occupation or prescription, it must rest on the effective
possession of the territory.
1. On January 23, 1925, US and Netherlands referred
their dispute concerning sovereignty over the Island
of Palmas to arbitration by a sole arbitrator, Max
Huber, who was asked to determine whether the
Island of Palmas in its entirety formed a part of the
territory belonging to US or Netherlands
2. US argues that the discovery was based on the
Treaty of Munster, wherein Netherlands and Spain
are a part of.
3. US hinges her title on cession, as successor to the
rights of Spain over the Philippines and in the first
place of discovery. Spain’s inchoate title is derived
from its discovery of Palmas in the 16th century.
4. When Spain ceded the Philippines to the US under
the Treaty of Paris, the Island of Palmas was
included and therein remained intact under the
Treaty.
5. By principle of contiguity, it belongs to the power
having sovereignty over the Philippines.
6. Netherlands maintains that Spain’s discovery is not
proved. Even if Spain had a title, such had been lost.
7. They contend to have exercised their right of
sovereignty since 1648.
8. Netherlands, through East India Company, have
possessed and exercised the rights of sovereignty
out of conventions entered into with the natives and
princes of the island, establishing the suzerainty (in
which one state controls the foreign policy and
relations of a tributary state, while allowing the
tributary state to have internal autonomy) of the
Netherlands over the territories of these princes,
including Palmas.
9. Max Huber ruled in favor of the Netherlands.
10. ON DISCOVERY CONFERRING SOVEREIGNTY:
Discovery alone without any subsequent act cannot
suffice to prove sovereignty over Palmas. As there is
no sovereignty, abandonment by one State that
another may take place does not arise.
11. DISCOVERY CREATING AN INCHOATE RIGHT:
The prevailing view in the 19th century was, an
inchoate title must be completed within a reasonable
period by the effective occupation of the region
cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty.
12. ON THE PRINCIPLE OF CONTIGUITY: It cannot be
admissible as a legal method of deciding territorial
sovereignty for it will lead to arbitrary results. It is
impossible to show the existence of a rule of positive
international law to the effect that islands situated
outside territorial waters should belong to a State
from the mere fact that its territory forms the terra
firma (nearest continent or island).
13. ACT OF EFFECTIVE APPREHENSION: If the claim
of sovereignty is based on the continuous and
peaceful display of authority—the acts of East India
Company must be assimilated as acts of
Netherlands itself. It gave the Dutch East Asia
Company, although not recognized as members of
the community of
14. nations, with public powers for acquisition and
administration of colonies. Existence of Dutch rule is
proved by the fact that the Dutch flag was being
waved by the people of the island, the company also
exercised rights of suzerainty over Palmas, the
natives sent yearly presents as token of their
submission, and were obliged to give assistance in
case of distress.
15. Thus, Netherlands succeeded in establishing its
claim to sovereignty on the title of peaceful and
continuous display of State authority. It is so
open and public that is to say that it was in
conformity with usages as to exercise of
sovereignty over colonial States.
16. ACT OF EFFECTIVE APPREHENSION: By the time
a dispute had arisen, in 1906, the arbitrator found
that the establishment of Dutch authority had already
reached such a degree of development that the
importance of maintaining this state of things ought
to be considered as prevailing over an inchoate
claim, possibly based either on discovery in very
distant times and unsupported by occupation or
mere geographical position.
 state. A right to external self-
Secession of Quebec determination (statehood), on
Right to Self-Determination: Not applicable to Quebec,
since they were not under any of the following: a) Under
colonial empire, b) Subject to alien subjugation,
domination, or exploitation, c) Denied meaningful
exercise of its right to internal self-determination.
1. In 1980, Under Parti Quebecois, a referendum was
held regarding Quebec’s separation from Canada. It
resulted in 60% of voters wanting to remain in
Canada.
2. In 1982, the federal government amended the
Constitution to gain full independence from Britain so
that Britain permission will no longer be required to
amend Canadian laws, and constitutional powers.
3. In 1995, the province of Quebec experienced a
movement wherein some Quebecers wished to
unilaterally secede and split from Canada.
4. A 2nd referendum was held. 50.6% of the voters of
Quebec wanted to remain part of Canada.
5. So, the federal government submitted 3 reference
questions to the SC requesting an opinion regarding
the legality of Quebec’s separation from Canada.
6. The 3 questions were addressed to the court:
a. Can the National Assembly, legislature or
government of Quebec effect the secession
of Quebec from Canada unilaterally?
i. NO, unconstitutional on the
grounds of democracy,
constitutionalism and the rule of
law, federalism, and protection
for minorities. Due to the
complexity and importance of
these values, Quebec cannot
choose to unilaterally secede
without addressing each principle
and how their separation will
affect each principle.
b. Does international law give the National
Assembly, legislature or government of
Quebec the right to effect the secession of
Quebec from Canada unilaterally? In this
regard, is there a right to self-determination
under international law that would give the
National Assembly of Quebec the right to
effect the secession of Quebec from Canada
unilaterally?
i. NO. International law does not
permit Quebec to unilaterally
separate.
ii. In this case, the SC of Canada
made a distinction between ‘internal’
self-determination and ‘external’
self-determination. It noted that the
right to self-determination of a
people is normally fulfilled by
internal self-determination
(autonomy) wherein people may
pursue their political, economic,
social and cultural development
within the framework of an existing
 the other hand, only arises in the
most extreme of cases.
iii. In the case at bar, Quebec did not
meet any of the situations
provided under internal or
external self-determination, which
may justify it to invoke the same.
Quebec does not meet the threshold
of a colonial people or oppressed
people since they were already
declared independent by Britain nor
can it be suggested that Quebecers
have been denied meaningful
access to government to pursue
their political, economic, cultural and
social development. Reason being,
that Quebecers occupy prominent
positions within the government of
Canada. The population of Quebec
is equitably represented in
legislative, executive, and judicial
institutions.
c. In the event of a conflict between domestic
and international law on the right of the
National Assembly, legislature or
government of Quebec to effect the
secession of Quebec from Canada
unilaterally, which would take precedence in
Canada?
i. By reason of the unconstitutionality
of the secession, it cannot be said
that there is a conflict between
international and domestic law.
Unilateral Declaration of Independence Kosovo
1. Kosovo, a region that is populated by Albanian
Muslims, was once a part of Yugoslavia.
2. When it was broken up into various states in the
1990s, Kosovo was absorbed by Serbia, a
predominantly Christian nation.
3. When Kosovo attempted to become independent in
1999, Serbia sent its armed forces in a campaign of
ethnic cleansing of Albanian Muslims.
4. Eventually, the North Atlantic Treaty Organization
(NATO), an intergovernmental military alliance
created to safeguard the freedom and security of the
international community, intervened in the war. But
thousands of Albanian Muslims already murdered.
5. To put an end to the armed conflict, UN Security
Council authorized the establishment of an
international civil presence in Kosovo to provide an
interim administration which will oversee the
development of a democratic institution.
6. The United Nations Administration Mission in
Kosovo (UNMIK) exercises all legislative, executive,
and judicial authority. Its principal responsibilities
were to organize and oversee provisional institutions
for democratic self-government pending a political
settlement in Kosovo.
7. Later, the Security Council intended to start a
political process to determine Kosovo’s future status.
Negotiations between Serbia and Kosovo began but
were unable to reach an agreement on Kosovo’s
status. Thus, the Special Envoy to the UN Secretary-
General, recommended that the only viable option
for Kosovo would be independence.
8. In February 2008, a newly formed Assembly of
Kosovo declared Kosovo’s independence from
Serbia and the establishment of a sovereign state.
9. The declaration was decided at a meeting where
109 of 120 members of the Assembly of Kosovo
voted to issue the declaration of Independence.
10. This was not submitted to the Special
Representative of the Secretary General and was
not published in the Official Gazette of the
Provisional Institutions of Self-Government of
Kosovo.
11. Serbia informed the Secretary-General that it had
adopted a decision stating that that declaration
represented a forceful and unilateral secession of a
part of the territory of Serbia, and did not produce
legal effects either in Serbia or in the international
legal order.
12. An emergency public meeting took place where
President of Serbia denounced the declaration of as
an unlawful act which had been declared null and
void by the National Assembly of Serbia.
13. Serbia sought to have the court's opinion on
whether this declaration was in breach of
international law.
14. The Court ruled that the adoption of the declaration
did not violate any applicable rule of international
law.
15. You can unilaterally declare; nothing is stopping you.
International law does not contain any rule that
either allows or prohibits a unilateral declaration
16. During the 18th-20th centuries, there were numerous
instances of declarations of independence which
17. When compared with Quebec Secession case, the
18. The case of Kosovo affirms the declaratory view, it
19. On the use of force: When the use of force,
sometimes resulted in the creation of a new State. In
no case, however, does it suggest that the act of
promulgating the declaration was regarded as
contrary to international law. The international law
contained no prohibition of declarations of
independence. The Court noted that international
law did not preclude Kosovo from issuing a
declaration of independence.
Kosovo people arguably have the right to external
self-determination or statehood based on the abuses
that they have suffered at the hands of the Serbian
people.
affirms the fact that the creation of a state is a
question of fact. Kosovo was subsequently
recognized, because it possesses all the elements of
statehood. Regardless of whether China, Serbia and
Latin America refuse to recognize it. Because it has
all the four elements. So, Kosovo is slowly being
recognized as a state.
therefore, is for the furtherance of the right to self-
determination, it is clearly acknowledged and
condoned by the international legal community.
BUT, if the use of force is not in furtherance of the
right to self-determination, but is intended to expand
territory then the international legal community will
not tolerate that.
 Territory AND the construction of the wall AND its
associated régime have the tendency to alter the
demographic composition of the Occupied
Legal Consequences of the Construction of a Wall in Palestinian Territory. The construction of the wall
Palestinian Territory (The Wall) and its associated régime
1. The conflict between Israel and Palestine finds its
roots in their shared occupancy of Palestine. In
1947, Palestine was divided into two areas. That
was also the time when Jerusalem was designated
as a special international zone. However, the
surrounding Arab states declared war on Israel,
leading to the Arab-Israeli War.
2. Israel won the war, but in doing so, expanded past
the borders set by Britain.
3. Millions of Palestinians were forcibly pushed out of
their territory and forced to immigrate to the Arab
states surrounding Jerusalem.
4. In 1967, there was the Six-Day War, with Israel
winning once again. Israel occupied the entirety of
Palestine and ruled over the Palestinians.
5. Over the years, Jewish families illegally settled in
Palestinian Territory for various reasons. Armed
forces from Israel serve as their protection and
escort.
6. Decades of violence and terrorism later (First and
Second Intifada), in 2000, Israel builds a wall in the
West Bank.
7. The construction of the wall resulted to the creation
of enclaves on the Occupied Palestinian territory,
wherein Palestinians would reside in areas
completely surrounded by the foreign occupants.
8. Now, the UN General Assembly asks of the legal
consequences arising from the construction of
the wall being built by Israel, the occupying
Power, in the Occupied Palestinian Territory,
including in and around East Jerusalem, considering
the rules and principles of international law, including
the 4th Geneva Convention of 1949, and relevant
Security Council and General Assembly resolutions?
9. ICJ states that Israel is obliged to (5 THINGS):
a. Comply with the international obligations it
has breached by the construction of the wall.
b. Respect the right of the Palestinian people
to self-determination and its obligations
under international humanitarian law and
international human rights law.
c. Ensure freedom of access to the Holy
Places that came under its control following
the Six-Day War.
d. Put an end to the violation of its international
obligations flowing from the construction of
the wall.
e. To make reparation for the damage caused
to all the natural or legal persons concerned.
Since the obligations violated by Israel are of an erga
omnes (towards all) character, all States are under an
obligation not to recognize the illegal situation resulting
from the construction of the wall. They are also under an
obligation not to render aid or assistance in maintaining
the situation created by such construction.
10. Right to Self-Determination: With the
establishment of Jewish settlements in Palestinian
 created a “fait accompli” on the ground that could
well become permanent, and hence tantamount to a
de facto annexation.
11. ICJ ruled that it is illegal to acquire any territory
resulting from the threat or use of force, as
enshrined by the UNGA Resolution 2625 (XXV).
a. "Every State has the duty to refrain from any
forcible action which deprives peoples of
their right to self-determination."
12. The principle as to the use of force is customary
international law
13. Article 1 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR) and the
International Covenant on Civil and Political Rights
(ICCPR) also reaffirms the right of all peoples to self-
determination.
14. The construction of the wall and its associated
régime, by contributing to the demographic changes
contravene Article 49, Paragraph 6, of the 4 th
Geneva Convention and the Security Council
resolutions previously cited.
a. “The Occupying Power shall not deport or
transfer parts of its own civilian population
into the territory it occupies.”
15. The construction of the wall severely impedes the
exercise by the Palestinian people of its right to self-
determination and is therefore a breach of Israel’s
obligation to respect that right.
16. Necessity: While Israel had both the right and duty
to protect the life of its citizens, the ICJ was not
convinced that the construction of the wall along the
route chosen was the sole means available to
safeguard the interests of Israel against that peril.
Nor was the measure proportionate.
17. Cessation of Unlawful Conduct: Because Israel
had violated its international obligations, ICJ
concluded that it must put an end to the violations
arising from it by ceasing the construction of the wall
and dismantling those parts of that structure situated
within Occupied Palestinian Territory. Moreover,
Israel must repeal or render ineffective all legislative
and regulatory acts adopted with a view to the
construction of the wall and establishment of its
associated régime.
18. International Armed Conflict: Israel, for its part,
has argued that the wall’s sole purpose is to enable
it effectively to combat terrorist attacks launched
from the West Bank. However, Israel does not claim
that the attacks against it are imputable to a foreign
State. Therefore, Israel cannot invoke its right to
self-defense under Article 51 of the UN Charter. This
is because Article 51 of the Charter recognizes the
existence of an inherent right of self-defence only in
the case of armed attack by one State against
another State.
Vinuya vs Romulo
1. During the Second World War, the Japanese
government established the “common women”
system in its occupied countries where women were
repeatedly raped, beaten, and abused by Japanese
soldiers.
2. Petitioners here are members of MALAYA LOLAS,
an organization established for the purpose of
providing aid to the victims of rape by Japanese
military forces in the Philippines.
3. Since 1998, they have approached the Executive
Department requesting assistance in filling a claim
against the Japanese officials and military officers.
4. However, they were declined as the individual claims
for compensation had already been fully satisfied by
Japan's compliance with the Peace Treaty between
PH and Japan. Japan had already responded
through a series of public apologies and the creation
of the Asian Women’s Fund.
5. Vinuya: The general waiver of claims made by the
PH government in the Treaty of Peace with Japan is
void. It failed to espouse the complaints of the
comfort women against Japan. So, the PH govt is in
breach of its legal obligation not to afford impunity
for crimes against humanity.
6. Romulo: All claims of the Philippines and its
nationals relative to the war were dealt with in the
San Francisco Peace Treaty of 1951 and the
bilateral Reparations Agreement of 1956. The
apologies made by Japan have been satisfactory
and Japan had addressed the individual claims of
the women.
7. Issue: Whether or not the Executive Department
committed grave abuse of discretion in not
espousing petitioners' claims for official apology and
reparations
8. The Executive Department has the exclusive
prerogative to determine whether to espouse the
claims against Japan.
9. In this case, they have already decided that it is to
the best interest of the country to waive all claims of
its nationals for reparations against Japan in the
Treaty of Peace of 1951. The wisdom of such
decision is not for the courts to question.
10. The Executive Department has determined that
taking up petitioners' cause would be inimical to our
country's foreign policy interests and could disrupt
our relations with Japan.
11. If the Court decides to overturn the Executive
Department's determination, it would be a breach to
the separation of powers.
12. The respondents explain that the Peace Treaty
compromised individual claims AND that
international settlements generally wipe out private
claims, thereby terminating any recourse under
domestic law except as an agreement might
otherwise provide.
13. So, a treaty of peace abolishes the subject of the
war, and after peace is concluded, neither the matter
 in dispute nor the conduct of either party, during the
war, can ever be revived, or brought into contest
again.
14. Moreover, when a claim is brought within the
international legal system, it is not the individual's
rights that are being asserted, but rather, the state's
own rights. The State, therefore, is the sole judge to decide whether its protection will be granted, to what
extent it is granted, and when will it cease.
15. The ILC’s Draft Articles on Diplomatic Protection
state that "the right of diplomatic protection belongs
to or vests in the State"; that diplomatic protection is
a "sovereign prerogative" of the State; and that it
"has the right to exercise diplomatic protection on
behalf of a national. It is under no duty or obligation
to do so.”
16. At present, there is no sufficient evidence to
establish a general international obligation for States
to exercise diplomatic protection of their own
nationals abroad.
17. Even the invocation of jus cogens norms and erga
omnes obligations will not alter this analysis.
Petitioners have not shown that the crimes
committed by the Japanese violated jus cogens
prohibitions at the time the Treaty of Peace was
signed, or that the duty to prosecute perpetrators of
international crimes is an erga omnes obligation or
has attained the status of jus cogens.
 quarrying on Mt. Riutusvaara is so substantial that it
does effectively deny to the authors the right to enjoy
their cultural rights in that region.” The HRC held that
Finland had not violated Art. 27 because the
quarrying was not substantial enough to constitute a
denial of the right to enjoy culture.
11. In deciding this, it paid particular attention to the
Lansman vs Finland following factors: that the interests of the petitioners
Doctrine, Actors in International Law: Here, the
ICCPR provides the indigenous group of the Samis a
right to culture which may be invoked in the international
legal sphere. Specifically, their right to enjoy their own
culture, to profess and practise their own religion, or to
use their own language.
1. The petitioners were Saami reindeer herders living
on traditional Saami lands in the far north of Finland.
Saami ownership of the lands in question is disputed
by the Government.
2. In 1990, the Government, through the Central
Forestry Board, issued a permit to a private
company (Arktinen Kivi Oy) authorizing the
extraction of 5000 cubic meters of anorthocite, a
valuable stone from a mountain near the Saami
community. This mountain is considered to be
sacred by the Saami and is located in traditional
reindeer herding area, which contains numerous
fences and pens for controlling the reindeer.
3. In order to extract stone, a road was built to the
quarry interfering with the pens and fences.
4. Indigenous members of the Muotkatunturi
Herdsmen's Committee, reindeer breeders of Sami
ethnic origin, asserted that the quarrying of the stone
and its transportation through their reindeer herding
territory would violate their right to enjoy their culture
under Article 27 of the International Covenant on
Civil and Political Rights (ICCPR).
5. While acknowledging that Saami reindeer herding
was an "essential component of Saami culture,”
Finland contended that the quarry had minimal
impact on reindeer herding, and Saami cultural
rights, and that any damages would be
compensated according to the law and the
conditions found in the permit.
6. It added that the Saami were consulted about the
quarry; and that the area of the quarry was small in
relationship to the full extent of the lands used by the
Saami; and that quarrying was not permitted during
the time that herding was conducted in the area, and
therefore, that the impacts of the activities were so
minor that they could not constitute a denial of the
right to culture found in Art. 27.
7. In support of this, Finland cited Lovelace, which
states that “not every interference with the right to
enjoy culture can be regarded as a denial of the
rights within the meaning of Art. 27”
8. The Human Rights Council declared the petition
admissible in 1993 and issued its views in 1994.
9. The HRC reaffirmed that economic activities, “if they
an essential element of the culture of an ethnic
community” are covered by Art. 27
10. Having said this, the HRC then redefined the issue
to be resolved as “whether the impact of the
 were considered prior to issuance of the permit; that
the authors were directly consulted; that reindeer
herding did not appear to have been adversely
affected by the quarry and; that it appeared that
Finland had taken appropriate steps to minimize the
impact of the quarry in the conditions contained in
the permit.
12. In concluding, the HRC stated that an expansion of
activities in the area may lead to violations of Art. 27
and warned that “economic activities must, in order
to comply with Art. 27, be carried out in a way that
enables the authors to continue to benefit from
reindeer husbandry.”
13. However, the Committee warned that any future
approval of large scale mining activities in the area
used for reindeer herding may constitute a violation
of a minority's right to enjoy culture.
Indonesia vs Malaysia
There are 4 modes of acquiring territory and one of them
is efectivites (acquiring a territory by virtue of a
continuous display of sovereignty and intent to act as a
sovereign with respect to a particular area) The easiest
way to acquire territories is through a title.
Both Malaysia and Indonesia in this case went on to
greater lengths in proving that they actually have a title
to both islands. But, ICJ found that neither of these 2
countries have titles to these islands. Since they haven’t
proved based on ownership through a title, which is the
primary consideration, then both states actually
attempted to prove that they exercised efectivites.
1. Ligitan and Sipadan are two small islands located in
the Celebes Sea off the southeastern coast of the
Malaysian state of Sabah.
2. Sovereignty over the islands has been disputed by
Indonesia and Malaysia since 1969 and intensified in
1991 when Indonesia discovered that Malaysia had
built some tourist facilities on Sipadan island.
3. Indonesia claimed that it had made a verbal
agreement with Malaysia in 1969 to discuss the
question of sovereignty over the islands. Indonesia
also relies on a series of effectivités, both Dutch
(their former colonizer) and Indonesian, which it
claims confirm its conventional title.
4. Malaysia maintained that the islands have always
been part of the territory of its state of Sabah. It
contends that it acquired sovereignty over the
islands following a series of alleged transmissions of
the title originally held by the former sovereign, the
Sultan of Sulu.
5. Malaysia claims that the title subsequently passed,
in succession, to Spain, to the US, to Great Britain
on behalf of the State of North Borneo, to the United
Kingdom of Great Britain and Northern Ireland, and
finally to Malaysia itself.
6. Allegedly, this was confirmed by a certain number of
British and Malaysian effectivités over the islands
7. Indonesia relies on a continuous presence of the
Dutch and Indonesian navies in the waters around
Ligitan and Sipadan.
8. The ICJ in this case decided that Malaysia has
the better display of sovereignty.
9. In response to Indonesia, ICJ points out that it
cannot be deduced from the report of the
commanding officer of the navies or from any other
documents on naval surveillance and patrol activities
that the naval authorities considered Ligitan and
Sipadan and the surrounding waters to be under the
sovereignty of the Netherlands or Indonesia.
10. The navy surveillance is not actually exclusive to
Indonesia. The patrolling over the Celebes Sea and
Northern Borneo Sea is actually a joint exercise
between the British Forces representing Malaysia
and the Dutch Forces representing Indonesia. The
patrolling is not actually specific to the two islands.
What they are actually guiding is the Celebes Sea
and the North Borneo Sea from pirates. They were
not actually protecting the islands but the waters
against pirates.
11. Indonesia further states that the waters around the
islands have traditionally been used by Indonesian
fishermen. However, activities by private persons
cannot be seen as effectivités if they do not take
place on the basis of official regulations or under
governmental authority.
12. On the other hand, Malaysia cites the measures
taken to regulate and control the collecting of turtle
eggs and the establishment of a bird reserve on the
islands, an activity of some economic significance in
the area at the time. This was seen by the ICJ as
seen as regulatory and administrative assertions of
authority over territory specified by name.
13. Malaysia further invokes the fact that their authorities
constructed a lighthouse on Sipadan in 1962 and
another on Ligitan in 1963. While the construction
and operation of lighthouses and navigational aids
are not normally considered manifestations of State
authority, the ICJ notes that such can be legally
relevant in the case of very small islands.
14. The ICJ concluded, on the basis of the above-
mentioned effectivités, that sovereignty over Pulau
Ligitan and Pulau Sipadan belonged to Malaysia.
 alone conferred upon the State the right to put
forward an international claim on his behalf.
16. Mr. Nottebohm’s nationality, in this case, was not
based on any genuine prior link with Liechtenstein
and the sole object of his naturalization was to
enable him to acquire the status of a neutral national
MODULE 5 in time of war.
Liechtenstein vs Guatemala
1. Mr. Friedrich Nottebohm was born in Hamburg,
Germany. He was German by birth and still German
by nationality when he applied for naturalization in
Liechtenstein in 1939. This was during a time that
Nazi Germany was on the verge of entering the
Second World War.
2. In 1905, he went to Guatemala and took up
residence there, establishing the headquarters of his
business activities in the fields of commerce,
banking, and plantations.
3. After 1905, he would continually go to Germany,
maintaining business connections and going on
holidays. He would also pay visits to his brother in
Liechtenstein from 1931 onwards. His residence, at
the time, was fixed in Guatemala.
4. In 1939, the same year that World War 2 began,
Nottebohm left Guatemala and applied for
naturalization in Liechtenstein. Such application was
done little more than a month after the start of World
War.
5. Pertinently, the Liechtenstein Law provides that
an individual will lose his former nationality as a
result of naturalization.
6. Upon approval of his application, Nottebohm
returned to Guatemala to resume managing his
business activities there.
7. So, World War 2, Guatemala eventually declared
war against Germany.
8. Despite his naturalization in Liechtenstein,
Nottebohm was treated as a German citizen by
Guatemala.
9. He was then arrested and handed over to the United
States as part of a program of cooperation between
Guatemala and the US.
10. All of Nottebohm’s property in Guatemala and the
US was also confiscated.
11. Despite his eventual release, not all of Nottebohm’s
property was returned by either government.
12. He returned to Liechtenstein and stayed there for the
remainder of his life.
13. In 1951, Liechtenstein, on Nottebohm’s behalf,
instituted proceedings against Guatemala in the ICJ
for allegedly unjust treatment and illegal confiscation
of his property.
14. Guatemala’s counterargument states that
Nottebohm did not gain Liechtenstein citizenship as
far as international law is concerned.
15. Jurisdiction Based on Nationality: On the
international plane, the grant of nationality is entitled
to recognition by other States only if it represents a
genuine connection between the individual and the
State granting its nationality. It is the bond of
nationality between a State and an individual which

17. ON LIECHTENSTEIN’S LEGAL STANDING TO
FILE A CASE ON BEHALF OF NOTTEBOHM.
Liechtenstein contended that they have because he
is their national and granted him naturalization and
citizenship. Therefore, in exercising diplomatic
protection, what is merely required is nationality.
a. ICJ agreed but said that while states are
granted discretion to determine how and
when to grant nationality because that’s
an exercise of sovereignty, the effect of
that nationality upon third states will be
a different issue.
b. States have prescribed requirements for
citizenship and nationality. While
Liechtenstein granted nationality to
Nottebohm, that grant of nationality may
not be binding upon third states such as
Guatemala.
US vs Fawax Yuniz
1. Fawaz Yuniz, along with several others, hijacked a
Royal Jordanian Airlines in Beirut International
Airport, Beirut, Lebanon, that was scheduled for
departure to Amman, Jordan.
2. The airplane departed from Beirut with all
passengers, including Americans, held hostage and
the pilot ordered to fly to Tunisia where a meeting of
the Arab League Conference was underway.
3. He wanted to demand to the heads of state of the
Arab nations to remove Palestinians in Lebanon.
4. Attempts to land in Tunisia and, subsequently, Syria,
were denied, so the hijackers were forced to return
to Beirut.
5. After landing and ordering the hostages to exit the
aircraft, the hijackers called an impromptu press
conference where Yuniz read a speech that was
intended to be given to delegates of the Arab
League Conference.
6. The hijackers then blew up the aircraft before
fleeing.
7. In September, 1987, Yuniz was eventually arrested
while in international waters pursuant to an arrest
warrant issued in the United States.
8. US deployed CIA and had them pretend that they
are normal citizens part of a drug cartel. This is
without the knowledge and consent of Lebanon.
They went to Lebanon for “Operation golden-rod”.
9. Pretending to be a member of the drug cartel, they
boarded Yunis to a yacht into the Mediterranean Sea
for a drug investment. He was captured there and
was flown to the USA to answer for the crime
charged.
10. US filed a case against Yunis for the hostage-taking
act. The hostage-taking act specifically provides that
the US will have jurisdiction over offenses that,
although not committed by the US but committed
outside but the hostage individuals are their own
citizens.
11. ON Passive Personality Principle: Under the
passive personality principle, a State may claim
jurisdiction to try a foreign national for offenses
committed abroad that affect its own citizens. Here,
US claims jurisdiction because some hostages in the
hijacking incident were Americans.
12. In addition to jurisdiction on the basis of the
principle of universality and the 1970 Convention
for the Suppression of Unlawful Seizure of
Aircraft, the US court relied on the passive
personality principle that it found was supported by
international law ‘at least where the state has a
particularly strong interest in the crime’.
 functions”. Mr. Habré should “be given jurisdictional
immunity”, which “is intended to survive the
cessation of his duties as President of the Republic”;
and that it could not therefore “adjudicate the
lawfulness of the proceedings and the validity of the
arrest warrant against a Head of State”.
12. Obligations Erga Omnes: The obligations defined
as “obligations erga omnes partes” are such that
each State party to the Convention has an interest in
compliance with them in any given case.
Belgium vs Senegal
1. Hissene Habré is a Chadian politician who was
President of the African nation of Chad from 1982
until he was overthrown in 1990, after 8 yrs of rule.
2. His reign was characterized by widespread human
rights abuses and atrocities. He created a secret
police force known as the Documentation and
Security Directorate (DDS), under which his
opponents were tortured and executed.
3. DDS burned the bodies of detainees with
incandescent objects, spraying gas into their eyes,
ears and nose, forced swallowing of water, and
forcing the mouths of detainees around the exhaust
pipes of running cars.
4. His government also periodically engaged in ethnic
cleansing, killing and arresting group members en
masse when it was perceived that their leaders
posed a threat to the regime.
5. Habré fled, with $11 million of public money, to
Senegal after being overthrown in 1990. He was
placed under house arrest in 2005 until his arrest in
2013. He is accused of war crimes and torture
during his eight years in power in Chad.
6. Overthrown on December 1990, Habré requested
political asylum from he has been living in Dakar
ever since.
7. In 2000, Chadian nationals, together with an
association of victims, filed a case against Habré for
the crimes he had committed during his presidency.
8. The appellate court of Senegal nullified the
proceedings on the ground that its courts lacked
jurisdiction to prosecute Habré.
a. The Senegalese Code of Criminal
Procedure did not provide for such a
universal application of its jurisdiction.
9. Later that same year, a Belgian national of Chadian
origin filed another case against Habré for, inter alia,
serious violations of international humanitarian law,
crimes of torture and the crime of genocide. More
individuals followed suit with cases of a similar
nature.
10. These complaints, however, were based on Belgian
domestic law on the punishment of serious violations
of international humanitarian law and by the UN
Convention Against Torture.
11. Belgium then requested the extradition of Habré in
order for criminal prosecution to begin. However, the
Dakar Court of Appeal ruled against the request,
holding that, as “a court of ordinary law, it could not
extend its jurisdiction to matters relating to the
investigation or prosecution of a Head of State for
acts allegedly committed in the exercise of his
13. The obligations of a State party (Senegal) to conduct
a preliminary inquiry into the facts and to submit the
case to its competent authorities for prosecution are
triggered by the presence of the alleged offender
(Habré) in its territory, regardless of the nationality of
the offender or the victims, or of the place where the
alleged offences occurred.
14. All the other States parties have a common interest
in compliance with these obligations by the State in
whose territory the alleged offender is present.
15. That common interest implies that the obligations in
question are owed by any State party to all the other
States parties to the Convention.
16. Therefore, any State party (Belgium) to the
Convention may invoke the responsibility of another
State party with a view to ascertaining the alleged
failure to comply with its obligations erga omnes
partes and bring an end to such failure.
Government of Hongkong
1. In late 1991, Munoz, as Head of the Treasury
Department of the Central Bank of the Philippines,
was instructed by its Governor to raise $700M in
order to fund the buyback of Philippine debts and the
purchase of zero coupon US Treasury Bonds.
2. Munoz recommended that the amount be obtained
through gold loans/ swaps, for which, 7 contracts of
about $100M each were to be awarded to certain
accredited parties.
3. Two of these contracts were granted to Mocatta,
London. These in turn were rolled over as they
matured, hence, totaling 5 gold loan/swap
agreements in Mocatta, London's favor.
4. Mr. Chi approached the Chief Dealer of Mocatta
about the proposed deals. There were then a series
of gold swaps and gold-backed loans between CBP
and Mocatta which resulted in the latter paying out
rebates of $1,703,304.87.
5. None of the above payments were known to CBP
and none of them ever reached CBP. Funds from
this Sundry Creditors Account were subsequently
disbursed to the benefit of Chi and Muñoz
personally.
6. These agreements are the subject of 10 criminal
cases filed against Munoz in Hong Kong
a. 3 counts of accepting an advantage as
an agent, contrary to Sec. 9(1)(a) of the
Prevention of Bribery Ordinance, Cap.
201 and
b. 7 counts of conspiracy to defraud,
contrary to the common law of HKSAR
7. Hong Kong then attempted to extradite Munoz, but
he filed a petition questioning his arrest and
subsequently applying bail.
8. Whether or not the crime of accepting an
advantage as an agent did not comply with the
double criminality rule?
9. Extradition is "the surrender by one nation to another
of an individual accused or convicted of an offense
outside of its own territory, and within the territorial
jurisdiction of the other, which, being competent to
try and to punish him, demands the surrender.”
10. PD 1069 defines the general procedure for the
extradition of persons who have committed crimes in
a foreign country, and lays down the rules to guide
the Executive Department and PH courts on the
proper implementation of the extradition treaties to
which the country is a signatory.
11. Nevertheless, the particular treaties entered into by
the PH Government with other countries primarily
govern the relationship between the parties.
12. For purposes of the extradition of Muñoz, the
HKSAR as the requesting state must establish the
following six elements, namely:
a. there must be an extradition treaty in
force between the HKSAR and PH
b. the criminal charges that are pending in
the HKSAR against the person to be
extradited
c. the crimes for which the person to be
extradited is charged are extraditable
within the terms of the treaty
13.
14.
15.
16.
17.
18.
19.
d. the individual before the court is the
same person charged in the HKSAR
e. the evidence submitted establishes
probable cause to believe that the
person to be extradited committed the
offenses charged
f. the offenses are criminal in both the
HKSAR and the Philippines (double
criminality rule). – NOT ESTABLISHED
The first five of the elements inarguably obtain
herein, as both the RTC and the CA found. To start
with, the RP-Hong Kong Agreement subsists and
has not been revoked or terminated by either
parties. Secondly, there have been 10 criminal
cases filed against Muñoz in Hong Kong. Thirdly, the
crimes of accepting an advantage as an agent and
of conspiracy to defraud were extraditable under the
terms of the RP-Hong Kong Agreement. Fourthly,
Muñoz was the very same person charged with such
offenses based on the documents relied upon by the
DOJ, and the examination and determination of
probable cause by the RTC that led to the issuance
of the order for the arrest of Muñoz. And, lastly,
there is probable cause to believe that Muñoz
committed the offenses charged.
However, it was as to the sixth element that the CA
took exception as not having been established.
Although the crime of conspiracy to defraud was
included among the offenses covered by the RP-
Hong Kong Agreement, and the RTC and the CA
have agreed that the crime was analogous to the
felony of estafa through false pretense as defined
and penalized under Art. 315(2) of RPC, it was
disputed whether or not the other crime of accepting
an advantage as an agent was also punished as a
crime in the PH.
As such, the applicability of the double criminality
rule became the issue.
Under the double criminality rule, the extraditable
offense must be criminal under the laws of both the
requesting and the requested states.
So, Munoz was unfortunately was charged under
Section 9 of the Bribery Ordinance of Hong Kong.
Section 9 covers private sector bribery. Whereas,
public sector bribery is found in Section 4 of the
same ordinance.
Munoz’s charge before Hongkong court is for
accepting an advantage as an agent, meaning for
private sector bribery under section 9.
Unfortunately, bribery cannot be committed by a
private individual in the Philippines. We don’t have
an equivalent crime, because Munoz was a public
 official and therefore there is no equivalent offense
of Section 9 on private sector bribery here in the
Philippines.
20. Since we don’t criminalize private sector bribery
here, the double criminality rule was not met.
21. Therefore, Munoz extradition is allowed for him to
respond to the seven counts of conspiracy to
defraud, because we have an equivalent offense for
that under Article 315 paragraph 2 of the RPC. He
will not be prosecuted or tried for private sector
bribery.