Public International Law BERNAS REVIEWER

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PIL Reviewer Bernas
International Relations (Ateneo de Davao University)
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CHAPTER 1 THE NATURE OF INTERNATIONAL LAW Customary law—what are regarded as generally
accepted principles of law are in fact an expression
What is International Law? of what traditionally was call natural law
 A body of rules and principles of action which are binding upon Some Dissenters International law—a combination of politics,
civilized states in their relation to one another morality and self-interest hidden under the
 A law which deals with the conduct of the states and of international smokescreen of legal language
organizations and with their relations inter se, as well as with some of Pragmatic Theory International law is law because it is seen as such by
their relations with persons, whether natural or juridical states and other subjects of international law
Scope of International Law

a. Regulation of space expeditions Public International Law v. Private International Law
b. Division of the ocean floor
c. Protection of human rights Public International Law Private International Law
d. Management of international financial system Referred to as International Law Referred to as Conflict of Laws
e. Regulation of the environment Governs the relationship between and Domestic law which deals with cases
f. Preservation of peace among states and also their relations where foreign law intrudes in the
with international organizations and domestic sphere where there are
Is International Law a Law? individual persons questions of the applicability of
 Henkin: It is probably the case that almost all nations observe all foreign law or the role of foreign
principles of international law and almost all of their obligations courts
almost all of the time
 Brierly: The ultimate explanation of the binding force of all law is that
man, whether he is a single individual or whether he is associated with CHAPTER 2 SOURCES OF INTERNATIONAL LAW
other men in a state, is constrained, in so far as he is reasonable
being, to believe that order and not chaos is the governing principle of What Sources are
the world in which he lives Domestic Laws—found in statute books and in collections of court decisions
Some Theories about International Law Classifications of Sources
1. Formal sources—various processes by which rules come into existence
Command Theory Austin: Law consists of commands originating from a a. Legislation
sovereign and backed up by threats of sanction if b. Treaty making
disobeyed c. Judicial decision making
d. Practice of states
International law is not law because it does not 2. Material sources—identify what the obligations are
come from a command of a sovereign a. State practice d. Judicial decisions
Consensual Theory International law derives its binding force from the b. UN Resolutions e. Writings of jurists
consent of states c. Treaties
Treaties—expression of consent Art. 38(1) of the Statute of the International Court of Justice
1. International conventions—establishing rules expressly recognized by
Custom—voluntary adherence to common practices, contesting states
is seen as expression of consent 2. International custom—evidence of a general practice accepted as law
Natural Law Theory Law is derived by reason from the nature of man 3. General principles of law recognized by civilized nations
4. Subsidiary means for determination of rules of law
International law—application of natural reason to a. Judicial decisions
the nature of the state-person b. Teachings of the most highly qualified publicists
叶清蓮 & DSP Public International Law P a g e |1

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Restatement of Foreign Relations Law of the US the law of nations as they result from: usages of civilized people,
1. Customary Law laws of humanity & public conscience
2. International agreement
3. General principles common to the major legal system 2. Psychological or subjective factor—why they behave the way they
do
Sources of International Law
1. Custom 4. Generally recognized principles of law Treaties
2. Treaties 5. Judicial decisions  Determine the rights and duties of states just as individual rights are
3. International agreements 6. Teachings of highly qualified publicists determined by contracts
 Binding force comes from the voluntary decision of sovereign states to
Custom or Customary Law obligate themselves to a mode of behavior
 A general and consistent practice of states followed by them from a
sense of legal obligation Treaties and Custom
 Elements:  If the treaty is intended to be declaratory of customary law, it may be
1. Material factor—how state behaves seen as evidence of customary law
o Elements of Practice of sates or usus  Adherence to treaties can be indicative also of adherence to practice
a. Duration—may be either short or long; not the most as opinio juris
important element  If treaty comes later than a particular custom, treaty should prevail
 If a later treaty is contrary to a customary rile that has the status of
b. Consistency—continuity and repetition jus cogens, custom will prevail
 The later custom, being the expression of a later will, should prevail
c. Generality of the practice of states—uniformity and  A treaty is void if, at the time of its conclusion, it conflicts with a
generality of practice need not be complete but it must preemptory norm of general international law
be substantial  Preemptory norm of general international law = a norm accepted and
recognized by the international community of States as a whole as a
Opinio Juris—belief that a certain form of behavior is obligatory norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law
Dissenting states: subsequent contrary practice having the same character
o Dissenting states are bound by custom unless they had
consistently objected to it while the custom was merely in the General Principles of Law Recognized by Civilized Nations
process of formation  This has reference to principles of municipal law common to the legal
o It is also possible that after a practice has been accepted as systems of the world
law, contrary practice might arise
Judicial Decisions
Evidence of state practice and opinio juris  Decisions of the court have no binding force except between the
a. Treaties parties and in respect of that particular case
b. Diplomatic correspondence  Decisions do not constitute stare decisis
c. Statements of national leaders and political advisers  Decisions of the ICJ are not only regarded as highly persuasive in
d. Conduct of states international circles but they have also contributed to the formulation
of principles that have become international law
Instant Custom
o A spontaneous activity of a great number of states supporting Teachings of Highly Qualified Writers and “Publicists”
a specific line of action  Publicists = institutions which write on international law
a. The International Commission
The Martens Clause b. The Institut de Droit International
Until a complete code of laws of war has been issued, inhabitants c. International Law Association
& belligerents are protected under the rule on the principles of d. Restatement of Foreign Relations Law of the US
e. Annual publication of the Hague Academy of International Law

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Equity Functions of Treaties

 When accepted, is an instrument whereby conventional or customary a. Sources of international law
law may be supplemented or modified in order to achieve justice b. Charter of international organizations
 Where 2 parties have assumed an identical or a reciprocal obligation, c. Used to transfer territory, regulate commercial relations, settle
one party which is engaged in a continuing non-performance of that disputes, protect human rights, guarantee investments
obligation should not be permitted to take advantage of a similar non-
performance of that obligation by the other party Different Kinds of Treaties
 The Court’s recognition of equity as part of international law is in no
way restricted by the special power conferred upon it to decide a case Multilateral Treaties Open to all states of the world; Create the norms
ex aequo et bono, if the parties agree thereto which are the basis for a general rule of law
 Kinds of Equity:
1. Intra legem—within the law; the law is adapted to the facts of the case Can either be Codification Treaties or ―Law Making
2. Praeter legem—beyond the law; used to fill the gaps within the law Treaties‖, or both
3. Contra legem—against the law; refusal to apply the law which is seen Treaties that create Operate through the organs of the different states
as unjust Collaborative 1. Universal scope
Mechanism 2. Regional
Other Supplementary Evidence Bilateral Treaties In the nature of contractual agreements which create
1. UN Resolutions—generally considered merely recommendatory but if shared expectations such as trade agreements of
they are supported by all the states, they are an expression of opinio various forms; ―Contract Treaties‖
juris communis
2. Soft Law—―Non-treaty Agreements‖; international agreements not The Making of Treaties
concluded as treaties and therefore not covered by the Vienna 1. Negotiation—foreign ministries, diplomatic conferences
Convention on the Law of Treaties 2. Power to negotiate
o Administrative Rules—guide the practice of states in relation 3. Authentication of text—signing of the document; so that states will know
to international organizations the contents & avoid misunderstanding
4. Consent to be bound:
a. Signature e. Approval
CHAPTER 3 THE LAW OF TREATIES b. Exchange of Instruments f. Accession
c. Ratification g. Other means if so agreed
Various names of Treaties d. Acceptance
a. Conventions c. Covenants e. Protocols g. Modus vivendi 5. Accession to a treaty—states which did not participate in the initial
b. Pacts d. Charters f. Concordat negotiation may express their consent to be bound
6. Reservations—unilateral statement, however phrased or named, made by
1969 Vienna Convention on the Law of Treaties a State, when signing, ratifying, accepting, approving or acceding to a
 Governs treaties between states treaty, whereby it purports to exclude or to modify the legal effect of
 Entered into force in January 1980 certain provisions of the treaty in their application to the State
7. Entry into force of treaties—date agreed or once consent given (but
Definition of Treaties provisional application can also apply)
 An international agreement concluded between States in written form 8. Application of treaties
and governed by international law, whether embodied in a single o PACTA SUNT SERVANTA—every treaty in force is BINDING upon the
instrument or in 2 or more related instruments and whatever its parties and must be PERFORMED by them in GOOD FAITH
particular designation o A party may NOT INVOKE INTERNAL LAW as justification for its
 Even oral agreement can be binding, however, only written failure to perform a treaty
agreements that are new, come under the provisions of the Vienna o It is binding upon each party in respect of its entire territory unless a
Convention different intention appears in the treaty or is otherwise established
 Characteristics to make it binding: Nuclear Test Case: 9. Interpretation of Treaties
1. Commitment was very specific Australia v. France, a. Objective approach—interpretation according to the ordinary
2. There was a clear intent to be bound New Zealand v. meaning of the words
France
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b. Teleological approach—interpretation according to the telos or Succession to Treaties

purpose of the treaty Clean Slate Rule: newly independent state is not bound to maintain in
c. Subjective approach—honors special meaning given by the parties force or to become a party to any treaty by reason only of the fact that at
the date of the succession of states, the treaty was in force in respect of
Invalidity of Treaties the territory to which the succession of state relates
1. Error—relates to a fact or situation which was assumed by that State to
exist at the time when the treaty was concluded and formed
2. Fraud—State has been induced to conclude a treaty CHAPTER 4 INTERNATIONAL LAW AND MUNICIPAL LAW
3. Corruption of a Representative of a State
4. Coercion of a Representative of a State Dualism v. Monism
5. Coercion of a State by the threat or use of force
6. Violation of jus cogens—treaty is void if, at the time of its conclusion, Municipal Law International Law
it conflicts with a preemptory norm of general international law Dualist or As to Product of local Treaties and custom
Pluralist Theory source custom or of grown among states
Amendment and Modification of Treaties legislation
 Amendment—formal revision done with the participation, at least in its *when As to Regulates relations Regulates relations
initial stage, by all the parties to the treaty international and relations between individual between states
 Modification—involves only some parties municipal law are they persons under the
in conflict, regulate state
Termination of Treaties Municipal law As to their Law of sovereign Law between
 Terminated or suspended according to the terms of the treaty or with must prevail substance over individuals sovereign states
the consent of the parties Monism or Two theories:
1. Material Breach Monistic Theory A. Municipal law subsumes and is superior to
a. Repudiation of the treaty not sanctioned by the present international law
Convention *International and B. International law is superior to Domestic Law
b. Violation of a provision essential to the accomplishment of the Municipal laws (supported by Kelsen)
object or purpose of the treaty belong to only
2. Supervening Impossibility of Performance one system of law
o Results from the permanent disappearance or destruction of
an object indispensable for the execution of the treaty Municipal Law in International Law
3. Rebus sic stantibus  Follows the dualist tradition and blocks domestic law from entry into
o Resulted in a radical transformation of the extent of the the international arena
obligations imposed by it, may, under certain conditions,  A state which has violated a provision of international law cannot
afford the party affected a ground for invoking the justify itself by recourse to its domestic law
termination or suspension of the treaty  A state which has entered into an international agreement must
modify its law to make it conform to the agreement
Procedure for the Termination of Treaties
1. Notify other parties of ground and measure proposed International Law in Domestic Law
2. If no objection, carry out the measure proposed  How does international law become part of domestic law for dualists?
3. If there is an objection, follow Art. 33 1. Doctrine of Transformation
o It must be expressly and specifically transformed into
Authority to Terminate domestic law through the appropriate constitutional
 Belongs to the one who has authority to enter into the treaty machinery such as an act of Congress or Parliament
 In the Philippines, authority to conclude treaties is shared between the o Treaties do not become part of the law of a state unless it is
Senate and the President consented to by the state
2. Doctrine of Incorporation
o They become part of the law of the land

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 Philippines adheres to the dualist theory and at the same time adopts Commencement of their Existence
the incorporation theory and thereby makes international law part of  State, as a person of international law, should possess the following
domestic law qualifications: (Montevideo Convention of 1933 on Rights and Duties of
 International law can be used by Philippine courts to settle domestic States)
disputes 1. Permanent population—PEOPLEa community of persons
 Art. 2, Sec. 2 of the Constitution: only customary law and treaties sufficient in number and capable of maintain the permanent
which have become part of customary law become part of Philippine existence of the community and held together by a common bond
law by incorporation of law
Conflict between International Law and Domestic Law: International Rule 2. Defined territory—an entity may satisfy this requirement even if
 Before an international tribunal, a state may not plead its own law as its boundaries have not been finally settled, if one or more of its
an excuse for failure to comply with international law boundaries are disputed, or if some of its territory is claimed by
 Exception: Art. 46 of Vienna Convention = in cases where the another state
constitutional violation was manifest and concerned a rule of its  An entity does not necessarily cease to be a state even if all its
internal law of fundamental importance territory has been occupied by a foreign power or if it has
 Manifest = objectively evident to any State conducting itself in the otherwise lost control of its territory temporarily
matter in accordance with normal practice and in good faith
3. Government—that institution or aggregate of institutions by which
Conflict between International Law and Domestic Law: Municipal Rule an independent society makes and carries out those rules of action
 Domestic courts are bound to apply the local law which are necessary to enable men to live in a social state
 Should a conflict arise between an international agreement and the  It is the National Government that has legal personality and it is
Constitution, the treaty would not be valid and operative as domestic such that is internationally responsible for the actions of other
law agencies and instrumentalities of the state
 Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the  Temporary absence of government does not terminate the
Supreme Court to declare a treaty unconstitutional; however, even if existence of a state
declared unconstitutional, the treaty will not lose its character as an
international law 4. Capacity to enter into relations with other States—
SOVEREIGNTYindependence from outside control
CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW  Principle of Self-determination—sovereignty as an element of a state

STATES is related but not identical to this principleby virtue of this, people
freely determine their political status and freely pursue their
Subjects of International Law—entities endowed with rights and obligations in economic, social and cultural development
the international order and possessing the capacity to take certain kinds of
action on the international plane Levels of claim to Self-determination
 Those with international personality 1. Establishment of New State—the claim by a group within an
established state to break away and form an new entity
Objects of International Law—those who indirectly have rights under or are 2. Does not involve Establishment of New State—simply involves claims
beneficiaries of international law through subjects of international law a. To be free from external coercion
b. To overthrow effective rulers and establish a new government—the
States—predominant actors; a community of persons more or less numerous, assertion of the right of revolution
permanently occupying a definite portion of territory, independent of external c. Of people within an entity to be given autonomy
control, and possession an organized government to which the great body of  International law has not recognized a right of secession from a
inhabitants render habitual obedience legitimately existing state
Recognition of States—the act of acknowledging the capacity of an entity to

exercise rights belonging to statehood

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Can an entity claim to be a state before it is recognized by other states? o Responsibility for the public debt of the predecessor, and rights and
Declaratory Theory Constitutive Theory obligations under its contracts remain with the predecessor state but
Recognition is merely ―declaratory‖ of Recognition ―constitutes‖ a state is subject to certain exceptions
the existence of the state
Its being a state depends upon its It is what makes a state a state and 4. Succession to treaties
possession of the required elements confers legal personality on the entity a. Moving Treaty Rule / Moving Boundaries Rule—when part of the
and not upon recognition territory of a state becomes territory of another state, the
States may decide to recognize an international agreements of the predecessor state cease to have
entity as a state even if it does not effect in respect of the territory
have all the elements of a state o Relief from treaty obligation is rebus sic stantibus
b. When a state is absorbed by another state, international agreements
Recognition of Government—act of acknowledging the capacity of an entity to of the absorbed states are terminated
exercise powers of government of a state c. Clean Slate Theory—when part of a state becomes a new state, the
 If a change in government in an existing state comes about through new state does not succeed to the international agreements to which
ordinary constitutional procedure = recognition by others comes as a the predecessor state was a party unless, expressly or impliedly, it
matter of course accepts such agreements
d. Uti possidetis Rule—pre-existing boundary and other territorial
Consequence of Recognition or Non-Recognition agreements continue to be binding notwithstanding
 A government, once recognized, gains increased prestige and stability
a. Doors of funding agencies are opened Fundamental Rights of States
b. Loans are facilitated 1. Independence—capacity of a state to provide for its own well-being
c. Access to foreign courts and immunity from suit are gained and development free from the domination of other states
d. Military and financial assistance also come within reach o Right to exercise within its portion of the globe, to the exclusion of
 Absence of formal recognition bars an entity from all these benefits others, the functions of a state
or, at least, access to them may be suspended o Restrictions upon a state’s liberty either from customary law or from
 Admission of a government to the UN does not mean recognition by all treaties do not deprive a state of independence
members but only to the extent of the activities of the organization o There is duty not to interfere in the internal affairs of other states
 Recognition of a regime is terminated when another regime is o Rights flowing from independence:
recognized a. Jurisdiction over its territory and permanent population
b. Right to self-defense
Succession of States c. Right of legation
 Views on Succession 2. Equality—equality of legal rights irrespective of size or power of the
A. The new state succeeds to no rights or obligations of the state
predecessor state but begins with a tabula rasa o Within the General Assembly, the doctrine means one state, one
B. Successor state assumes all obligations and enjoys all the rights of vote
the predecessor
3. Peaceful Co-Existence—mutual respect for each other’s territorial
Issues on Succession of States integrity and sovereignty, mutual non-aggression, non-interference in
1. Succession to territory—when a state succeeds another state with each other’s affairs and the principle of equality
particular territory, the capacities, rights and duties of the
predecessor state with respect to that territory terminate and are Some Incomplete Subjects
assumed by the successor state 1. Protectorates—dependent states which have control over their
2. Succession to state property—this is subject to agreement between internal affairs but whose external affairs are controlled by another
predecessor and successor states state; referred to as
3. Succession to contracts—this is subject to agreement between the a. Autonomous states
states concerned b. Vassal states
c. Semi-sovereign
d. Dependent sates

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The United Nations: Structure and Powers

2. Federal state—a union of previously autonomous entities  Came into being on Oct. 24, 1945
o The central organ will have personality in international law but the  A universal organization charged with peacekeeping responsibilities,
extent of international personality of the component entities can be development of friendly relations among nations, achievement of
a problem international cooperation in solving international problems of an
economic, social, cultural and humanitarian character, and the
3. Mandated and Trust Territories—territories placed by the League of promotion of human rights and fundamental freedoms for all human
nations under one or other of the victorious allies of WWI beings without discrimination
o After WWII, this was replaced by trusteeship system  UN is enjoined against intervening in matters which are essentially
within the domestic jurisdiction of any state
4. Taiwan—a non-state territory which de jure is part of China  International Constitutional Supremacy Clause—in the hierarchy of
international organizations, the UN occupies a position of preeminence
5. The Sovereign Order of Malta—the Italian Court of Cassation in 1935 so if there is a conflict with other international agreement, obligations
recognized its international personality under the UN Charter shall prevail
 Principal organs of UN:
6. The Holy See and Vatican City—recognized under Lateran Treaty; it 1. General Assembly—it has plenary power in the sense that it may
has no permanent population discuss any question or any matters within the scope of the
Charter
o GA distinguishes between
CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW a. Important questions—decided by 2/3 majority of the
members voting and present
INTERNATIONAL ORGANIZATIONS b. Other questions—decided by the majority
 An organization that is set up by treaty among 2 or more states which
have international personality 2. Security Council—has primary responsibility for the maintenance
 Constituent instruments of international organizations are multilateral of international peace and security
treaties, to which the well-established rules of treaty interpretation o There are 15 member states, 5 permanent and the others are
apply elected for 2 year terms in accordance with equitable
 Non-governmental organizations (NGO)—set up by private persons geographic representation
 Although international organizations have personality in international o Distinguishes between
law, their powers and privileges are by no means like those of states a. Procedural matters
since it is limited by the constitutional instrument that created them b. All other matters—requires 9 affirmative votes, including
the concurring votes of the permanent members
Advisory Opinion on the Use of Nuclear Weapons o The Charter does not specify what matters are procedural,
International organizations—governed by the Principle of Specialtythey hence, decision on whether a matter is procedural or not
are invested by the States which create them with powers, the limits of requires the concurrence of the permanent members
which are a function of the common interests whose promotion those o Abstention = veto
States entrust to them.
Powers conferred on international organizations—normally the subject of 3. Economic and Social Council (ECOSOC)—has 54 members elected
an express statement in their constituent instruments but in order to for 3 year terms
achieve their objectives, they possess subsidiary powers which are not
expressly provided for in the basic instruments which govern their 4. Trusteeship Council—supervises non-self governing territories
activities. o The Council suspended operations after Palau became
independent on Oct. 1, 1994
Immunities—based on the need for the effective exercise of their functions and
not from sovereignty 5. International Court of Justice (ICJ)—principal judicial organ of
 These immunities come from the conventional instrument creating the UN
them

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6. Secretariat—comprises a Secretary General and such staff as the  Common Article 3—for armed conflict not of an international
Organization may require character
o Secretary General—elected to a 5 year term by General  Prohibited acts under Article 3:
Assembly upon the recommendation of the Security Council, a. Violence to life and person, in particular, murder of all kinds,
subject to veto power mutilation, cruel treatment and torture
b. Taking of hostages
 Other Agencies: c. Outrages upon personal dignity, in particular, humiliating and
1. United Nations Educational, Scientific and Cultural Organizations degrading treatment
(UNESCO) d. Passing of sentences and the carrying out of executions without
2. International Civil Aviation Organization (ICAO) previous judgment pronounced
3. World Health Organization (WHO)
4. Food and Agricultural Organization (FAO) NATIONAL LIBERATION MOVEMENTS
5. World Bank  Organized groups fighting in behalf of a whole people for freedom from
6. International Monetary Fund (IMF) colonial powers
 Characteristics:
Regional Organizations—they are neither organs nor subsidiary organs of UN a. They can be based within the territory which they are seeking to
 They are autonomous international organizations having an liberate or they might find a base in a friendly country
institutional affiliation with UN by concluding agreements with UN b. Their goal is self-determination—to free themselves from colonial
 Created by international agreements for the purpose of dealing with domination, or a racist regime or foreign occupation
regional problems in general or with specific matters be they c. There is the ultimate goal of controlling a definite territory
economic, military or political d. They must have an organization capable of coming into contract
with other international organizations
ASEAN—established on Aug. 8, 1967 in Bangkok, Thailand with the signing of
the Bangkok Declaration by the 5 original member countries: Indonesia, INDIVIDUALS
Malaysia, Philippines, Singapore and Thailand  Possess limited rights and obligations (deriving from customary
 Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995; international law) in international law
Laos and Myanmar on July 23, 1997; Cambodia in 1999.  Obligations of individuals are those arising from the regulation of
 3 main objectives: armed conflicts
a. Promote economic, social and cultural development of the region  When individual rights are violated, however, individuals still have to
through cooperative programs rely on the enforcement power of states; but some treaties have
b. Safeguard the political and economic stability of the region against provided for the right of individuals to petition international bodies
big power rivalry alleging that a contracting state has violated some of their human
c. Serve as a forum for the resolution of intra-regional differences rights
INSURGENTS
 Protocol II—first and only international agreement exclusively CHAPTER 7 TERRITORY: LAND, AIR, OUTER SPACE
regulating the conduct of parties in a non-international armed conflict
 Requirements for Material Field of Application: Territory in International Law—an area over which a state has effective
a. Armed dissidents must be under responsible command control
b. They must exercise such control over a part of its territory as to  Exact boundaries might be uncertain but there should be a definitive
enable them to carry out sustained and converted military core over which sovereignty is exercised
operations and to implement this Protocol  Acquisition of territory—acquisition of sovereignty over territory
 Insurgent groups which satisfy the material field of application may be  Includes land, maritime areas, airspace and outer space
regarded as ―para-statal entities possessing definite if limited form of
international personality‖
a. They are recognized as having belligerent status against the de
jure government
b. They are seen as having treaty making capacity

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Modes of Acquisition of Sovereignty over Territory In resolving island territorial disputes, the following 3 important rules
1. Discovery and Occupation must be followed:
o Occupation—acquisition of terra nulliusterritory which prior to 1. Title based on contiguity has no standing in international law
occupation belonged to no state or which may have been abandoned 2. Title by discovery is only an inchoate title
by a prior occupant 3. If another sovereign begins to exercise continuous and actual
o There is abandonment when occupant leave the territory with the sovereignty and the discoverer does not contest this claim, the claim
intention of not returning by the sovereign that exercises authority is greater than a title based
o Discovery of terra nullius is not enough to establish sovereignty; it on mere discovery
must be accompanied by effective control
EASTERN GREENLAND CASE
WESTERN SAHARA CASE HELD:
HELD: A claim to sovereignty based not upon some particular act or title such
Territories inhabited by tribes or peoples having a social and political as treaty or cession but merely upon continued display of authority,
organization were not regarded as terra nullius. involves 2 elements each of which must be shown to exist: (a) intention
and will to act as sovereign, and (b) some actual exercise or display of
The information furnished to the Court shows that at the time of such authority.
colonization, Western Sahara was inhabited by peoples which, if
nomadic, were socially and politically organized into tribes and under Another circumstance which must be taken into account is the extent to
chiefs competent to represent them. which the sovereignty is also claimed by some other Power.
THE ISLAND OF PALMAS One of the peculiar features of the present case is that up to 1931, there
HELD: was no claim by any Power other than Denmark to the sovereignty of
Contiguity—US also argued that Palmas was US’ territory because the Greenland.
island was closer to the Philippines than to Indonesia which was then
held by the Netherlands East Indies. The arbitrator said there was no 2. Prescription—requires effective control and the object is not terra
positive international law which favored the US’ approach of terra firma, nullius
where the nearest continent or island of considerable size gives title to o The required length of effective control is longer than in occupation
the land in dispute. The arbitrator held that mere proximity was not an o May be negated by a demonstrated lack of acquiescence by the prior
adequate claim to land noted that if the international community occupant
followed the proposed United States approach, it would lead to arbitrary
results. 3. Cession—acquisition of territory through treaty
o A treaty of cession which is imposed by a conqueror is invalid
Continuous and peaceful display of sovereignty—the Netherlands' primary
contention was that it held actual title because the Netherlands had 4. Conquest and Subjugation
exercised authority on the island since 1677. The arbitrator noted that o Conquest—taking possession of a territory through armed force
the US had failed to show documentation proving Spanish sovereignty on o It is necessary that the war had ended either by treaty or by
the island except those documents that specifically mentioned the indication that all resistance had been abandoned
island's discovery. Additionally, there was no evidence that Palmas was a o Now, conquest is proscribed by international law
part of the judicial or administrative organization of the Spanish o ―No territorial acquisition resulting from the use or threat of force
government of the Philippines. However, the Netherlands showed that shall be recognized as legal‖
the Dutch East India Company had negotiated treaties with the local
princes of the island since the 17th century and had exercised 5. Accretion and Avulsion—sovereignty by operation of nature
sovereignty, including a requirement of Protestantism and the denial of o Accretion—gradual increase of territory by the action of nature
other nationals on the island. The arbitrator pointed out that if Spain had o Avulsion—sudden change resulting for instance from the action of a
actually exercised authority, than there would have been conflicts volcano
between the two countries but none are provided in the evidence.

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Is Contiguity a Mode of Acquisition? Convention on the Law of the Sea of 1982 – prevailing law on maritime
 It is impossible to show a rule of positive international law to the domain
effect that islands situated outside the territorial waters should belong
to a state from the fact that its territory forms part of the terra firma Art. 2 of the 1982 Law of the Sea provides that
(Las Palmas Case) 1. Sovereignty of a coastal State extends, beyond its land territory and
internal waters and, in case of an archipelagic State, its archipelagic
Intertemporal Law waters, to an adjacent belt of sea, described as territorial sea
 Rules in effect at the time of the acquisition should be applied 2. Sovereignty extends to the air space over the territorial sea as well as
to its bed and subsoil
3. Sovereignty over the territorial sea is exercised subject to this
AIRSPACE Convention and to other rules of international law
 Each state has exclusive jurisdiction over the air space above its
territory Territorial Sea – belt of sea outwards from the baseline and up to 12 nautical
 Sovereignty over airspace extends only until where outer space begins miles beyond
 Consent for transit must be obtained from the subjacent nation o The width of this territorial belt of water is the 12-mile rule
 State Aircraft—aircraft used in military, customs and police services o However, where the application of the 12-mile rule to neighboring
 ―No state aircraft of a contracting State shall fly over the territory of littoral states would result in overlapping  the rule is that the
another State or land thereon without authorization by special dividing line is the median line equidistant from the opposite baselines
agreement or otherwise, and in accordance with the terms thereof.‖ o Equidistance rule does not apply where historic title or other special
(Art. 3[a] of Chicago Convention on International Civil Aviation) circumstances require a different measurement
 Aircraft must not only not be attacked unless there is reason to suspect
that the aircraft is a real threat but also that a warning to land or Baselines – the low-water line along the coast as marked on large scale charts
change course must be given before it is attacked (Lissitzyn) officially recognized by the coastal State
 Civilian aircraft should never be attacked
Two ways of drawing the Baseline:
1. Normal baseline – one drawn following the low-water line along the
OUTERSPACE coast as marked on large scale charts officially recognized by the
 Outer space, wherever that might be, and celestial bodies, are not coastal State
susceptible to appropriation by any state o this line follows the curvatures of the coast and therefore
 ―The Moon and other celestial bodies shall be used by all State Parties would normally not consist of straight lines
to the Treaty exclusively for peaceful purposes.‖ (1967 Treaty on the 2. Straight baseline – drawn connecting selected points on the coast
Exploration and Use of Outer Space) without appreciable departure from the general shape of the coast
o Most archipelagic states use straight baselines
o Art. 47 of the Convention on the Law of the Sea – the length
CHAPTER 8 of such baseline shall not exceed 100 nautical miles, except
TERRITORY: LAW OF THE SEA that up to 3% of the total number of baselines enclosing any
archipelago may exceed that length up to a maximum length
Importance of the Sea of 125 nautical miles
1. Medium of communication
2. Contain vast natural resources Sovereignty over Territorial Sea – same as sovereignty over its land territory
o The sea and the strait are subject to the right of innocent passage by
Grotius – elaborated the doctrine of the open seas which considers the high other states
seas as res communis accessible to all
o The doctrine recognized as permissible the delineation of a maritime Right of Innocent Passage – passage that is not prejudicial to the peace, good
belt by littoral states as an indivisible part of its domain order or security of the coastal state
o Maritime belt = territorial sea o Applies to ships, aircrafts, and submarines
叶清蓮 & DSP Public International Law P a g e | 10

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o Coastal states have the unilateral right to verify the innocent Two Primary Obligations of Coastal States:
character of passage, and it may take the necessary steps to prevent 1. They must ensure through proper conservation and management
passage that it determines to be not innocent measures that the living sources of the EEZ are not subjected to over
exploitation
Internal Waters – all waters landwards from the baseline of the territory 2. They must promote the objective of ―optimum utilization‖ of the
o Coastal states may regulate access to its ports (Nicaragua case) living sources
Archipelagic Waters The Continental (Archipelagic) Shelf – refers to the

o An archipelagic state may designate sea lanes and air routes a. Seabed and subsoil of the submarine areas adjacent to the coastal
thereabove, suitable for the continuous and expeditious passage of state but outside the territorial sea, to a depth of 200 meters or,
foreign ships and aircraft through or over its archipelagic waters and beyond that limit, to where the depth allows exploitation
the adjacent territorial sea b. Seabed and subsoil of areas adjacent to islands
o The concept of the archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines, and The Deep Seabed: “Common Heritage of Mankind”
removes straits connecting these waters with the economic zone or o These are areas of the seabed and ocean floor, and their subsoil, which
high sea from the rights of foreign vessels to transit passage for lie beyond any national jurisdiction
international navigation o These are the common heritage of mankind and may not be
appropriated by any state or person
Bays – well-marked indentation whose penetration is in such proportion to the
width of its mouth as to contain land-locked waters and constitute more than a Islands – naturally formed area of land, surrounded by water, which is above
mere curvature of the coast water at high tide
o Considered as internal waters of a coastal state o Artificial islands or installations are not ―islands‖
o Indentation shall not be regarded as bay unless its area is as large as, o Important due to the possibility of exploiting oil and gas resources
or larger than, that of the semi-circle whose diameter is a line drawn around them
across the mouth of that indentation o Islands can have their own territorial sea, exclusive economic zone and
continental shelf
Historic Bays – treated by the costal state as internal waters on the basis of o Rocks which cannot sustain human habitation or economic life shall
historic rights acknowledge by other states have no exclusive economic zone or continental shelf, but can have a
territorial sea
Contiguous Zone – an area of water not exceeding 24 nautical miles from the
baseline The High Seas – all parts of the sea that are not included in the territorial sea
o It extends 12 nautical miles from the edge of the territorial sea or in the internal waters of a state
o Coastal state exercises authority over that area to the extent o The flag state has exclusive jurisdiction over its ships on the high seas
necessary to prevent infringement of its customs, fiscal, immigration to the extent not limited by agreement
or sanitation authority over its territorial waters or territory and to
punish such infringement Six Freedoms which High Seas are subject to:
o However, the power of control given to the littoral state does not a. Navigation
change the nature of the waters b. Overflight – belongs to both civilian and military aircraft
o Beyond the territorial sea, the waters are high sea and are not subject c. Fishing – includes the duty to cooperate in taking measures to ensure
to the sovereignty of the coastal state the conservation and management of the living resources of the high
seas
Exclusive Economic Zone or “Patrimonial Sea” – an area extending not more d. Lay submarine cables and pipelines
than 200 nautical miles beyond the baseline e. Construct artificial islands and structures
o Coastal state has rights over the economic sources of the sea, seabed f. Scientific research
and subsoil – but the right does not affect the right of navigation and
overflight of other states
o The delimitation of the overlapping EEZ between adjacent states is
determined by agreement

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Hot Pursuit Effects Doctrine

o Art. 111 allows hot pursuit of a foreign vessel where there is good o State also has jurisdiction over acts occurring outside its territory but
reason to believe that the ship has violated laws or regulations of a having effects within it
coastal state 1. Subjective Territorial Principle – a state has jurisdiction to prosecute
o This must commence when the foreign vessel is within the internal and punish for crime commenced within the state but completed or
waters, archipelagic waters, territorial waters, exclusive economic consummated abroad
zone, continental shelf or the contiguous zone of the pursuing state 2. Objective Territorial Principle – state has jurisdiction to prosecute and
o Hot pursuit must stop as soon as the ship pursued enters the territorial punish for crime commenced without the state but consummate within
waters of its own state or of a third state its territory
o May be carried out only by warships or military aircraft, or any other
ships or aircraft properly marked for that purpose Jurisdiction over Foreign Vessels in Philippine Territory – we follow the
English Rule
Settlement of Disputes 1. French Rule – crimes committed abroad a foreign merchant vessel
o Peaceful settlement is compulsory should not be prosecuted in the courts of the country within whose
territorial jurisdiction they were committed unless their commission
affects the peace and security of the territory
CHAPTER 9 2. English Rule – crimes perpetrated under such circumstances are in
JURISDICTION OF THE STATES general triable in the courts of the country within whose territory they
were committed
Jurisdiction – authority to affect legal interests
o The scope of a state’s jurisdiction over a person, thing or event NATIONALITY PRINCIPLE
depends on the interest of the state in affecting the subject in o This is generally supported in customary law
question o Every state has jurisdiction over its nationals even when those
o Corresponding to the powers of the government, jurisdiction can be: nationals are outside the state
1. Legislative jurisdiction – prescribe norms of conduct
2. Executive jurisdiction – enforce the norms prescribed Effective Nationality Link – used to determine which 2 states of which a
3. Judicial jurisdiction – adjudicate person is a national will be recognized as having the right to give diplomatic
o International law limits itself to criminal rather than civil jurisdiction protection to the holder of dual nationality
o Civil jurisdiction is subject for private international law or conflicts of
law Corporations – state has jurisdiction over corporations organized under its
o Jurisdiction may also be acquired by treaty laws
o However, there are 5 popular principles on jurisdiction
Maritime vessels – state has jurisdiction over vessels flying its flag
TERRITORIALITY PRINCIPLE o Same applies to aircraft and spacecraft
o This is generally supported in customary law
o Fundamental source of jurisdiction is sovereignty over territory Stateless Persons – persons who have no nationality
o It is necessary that boundaries be determined a. De jure stateless – persons who have lost their nationality, if they had
o To have jurisdiction, occupation is not enough; control must also be one, and have not acquired a new one
established (Las Palmas Case) b. De factor stateless – persons who have a nationality but to whom
protection is denied by their state when out of the State
Boundary – separating the land areas of two states is determined by the acts of
the states expressing their consent to its location PROTECTIVE PRINCIPLE
o When the boundary between 2 states is a navigable river  its o This is generally supported in customary law
location is the middle of the channel of navigation o State may exercise jurisdiction over conduct outside its territory
o When boundary between 2 states is a non-navigable river or lake  that threatens its security as long as that conduct is generally
its location is the middle of the river or lake recognized as criminal by states in the international community
o However, this is strictly construed to those offenses posing a direct,
specific threat to national security

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Examples of acts covered by Protective Principle: b. Is the effect sufficiently large to present a cognizable injury to the
a. Plots to overthrow the government plaintiffs, and, therefore, a violation of the anti-trust law?
b. Forging its currency c. Are the interests of the state sufficiently strong, vis-à-vis those of
c. Plot to break its immigration regulations other nations, to justify an assertion of extraordinary authority
UNIVERSALITY PRINCIPLE 2. International Comity – state will refrain from exercising its jurisdiction is
o This recognizes that certain activities, universally dangerous to states it is unreasonable
and their subjects, require authority in all community members to o Factors to consider in determining unreasonableness:
punish such acts wherever they may occur, even absent a link between a. Link or connection of the activity to the territory of the regulating
the state and the parties or the acts in question state
b. Character of the activity to be regulated
Examples of acts covered by Universality Principle: c. Existence of justified expectations that might be protected or hurt
a. Piracy – any illegal act of violence or depredation committed for by the regulation
private ends on the high seas or outside the territorial control of any d. Likelihood of conflict with regulation by another state
state 3. Forum non conveniens – application is discretionary with the court
b. Genocide – acts committed with intent to destroy, in whole or in part, o If in the whole circumstances of the case it be discovered that there is
a national, ethical, racial or religious group real unfairness to one of the suitors in permitting the choice of a
c. Crimes against humanity – acts committed as part of a widespread or forum which is not the natural or proper forum, either on the ground
systematic attack directed against any civilian population of convenience of trial or the residence or domicile of parties or of its
1. Attack directed against any civilian population being the locus contractus or locus solutionis
2. Extermination – internal infliction of conditions of life
3. Enslavement EXTRADITION – the surrender of an individual by the state within whose
4. Deportation or forcible transfer of population territory he is found to the state under whose laws he is alleged to have
5. Torture committed a crime or to have been convicted of a crime
6. Forced pregnancy o This is a process that is governed by a treaty
7. Persecution o Legal right to demand extradition and the correlative duty to surrender a
8. Crime of Apartheid fugitive exist only when created by treaty
9. Enforced disappearance of persons o Procedure for extradition is normally through diplomatic channels
d. War crimes – grave breaches of the Geneva Convention of 12 August
1949, namely, any of the following acts against persons or property Principles governing Extradition
protected under the provisions of the relevant Geneva Convention 1. No state is obliged to extradite unless there is a treaty
e. Aircraft piracy 2. Differences in legal system can be an obstacle to interpretation of what
f. Terrorism the crime is
3. Religious and political offenses are not extraditable
PASSIVE PERSONALITY PRINCIPLE
o This does not enjoy wide acceptance Bail in Extradition Cases
o State may apply law, criminal law, to an act committed outside its o Bail may be granted to a possible extraditee only upon a clear and
territory by a person not its national where the victim of the act was convincing showing that
its national 1. He will not be a flight risk or a danger to the community
o Not accepted for ordinary torts or crimes but is increasingly accepted 2. There exist special, humanitarian and compelling circumstances
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
CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction

1. Balancing Test – if the answer is yes to all the following questions, then
the court will assume jurisdiction
a. Was there an actual or intended effect on a state’s foreign commerce?

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CHAPTER 10:
IMMUNITY FROM JURISDICTION B. State Immunity
- The State may not be sued without its consent.
* GR: Jurisdiction of a state within its territory is complete and absolute. - Based on the principle of equality and independence of states: par in parem
* Exceptions: non habet imperium.
1.) Sovereign immunity - With the gradual expansion of state involvement in commerce, the principle
2.) Diplomatic/consular immunity of state immunity has evolved to one of restrictive state immunity: only acts
jure imperii (governmental acts) and not acts jure gestionis (trading and
A. Immunity of Head of State commercial acts) are immune.
- Applies to both the Head of State and to the State itself
The Schooner Exchange v. MacFaddon
Mighell v. Sultan of Johore States enjoy absolute immunity. Despite the absolute territorial jurisdiction of
The Sultan of Johore was sued for bread of a promise to marry in a British states, one sovereign, being bound to not degrade the dignity of his nation by
court. Despite the fact that it was a private suit, it was dismissed upon placing himself within the jurisdiction of another, can be supposed to enter
verification that the Sultan was a sitting foreign sovereign. into foreign territory in the confidence that the immunities belonging to his
independent sovereign station, though not expressly stipulated, are reserved by
Pinochet Case: Regina v. Bartle and the Commissioner of Police (House of implication and will be extended to him.
Lords, 1999)
General Augusto Pinochet led a military coup that overthrew the Chilean Dralle v. Republic of Czechoslovakia
President Allende. According to a national truth and reconciliation mission, at It can no longer be said that by international law, acta gestionis are exempt
least 3,196 people were killed or forcibly disappeared during his dictatorship. municipal jurisdiction. The classic doctrine of immunity arose at a time when
British authorities detained Pinochet on an arrest warrant issued by Spanish there was no justification for any distinction between private transactions and
Magistrate Baltasar Garzon under the charges of genocide, terrorism, and acts of sovereignty. Today, States engage in commercial activities and enter
torture. into competition with their own nationals as well as foreigners.
In affirming that Pinochet did not enjoy immunity from prosecution as a former USA v. Hon. V.M. Ruiz (Philippines)
head of state and could thus be extradited, the House of Lords explained: The traditional rule of State immunity is a necessary consequence of the
a.) Senator Pinochet as a former head of state enjoys immunity principles of independence and equality of States. However, the rules of
rationae materiae in relation to acts done by him in relation to his International Law are constantly developing and evolving. Because state
official function as such. activities have multiplied, it has become necessary to distinguish them
between sovereign and governmental acts, and private, commercial and
b.) However, organization of state torture is not an act committed in proprietary acts.
his official function. The commission of a crime which is an
international crime against humanity and jus cogens cannot be a state The result is that State immunity now extends only to acts jure imperii. A state
function. The principle of individual responsibility for international may be said to have descended to the level of an individual and can thus be
criminal conduct has become an accepted part of international law. deemed to have tacitly given its consent to be sued only when it enters into
business contracts. But this does not apply where the contract relates to the
c.) The notion of continued immunity for ex-heads of state is exercise of its sovereign functions.
inconsistent with the provisions of the Torture Convention which
provides that the international crime of torture can only be committed In this case, repairs of base facilities are an integral part of the naval base
by an official or someone in official capacity. Since the immunity devoted to the defense of both the US and the Philippines, which is a function
applies also to officials who carried out the functions of the state, if of the government not utilized nor dedicated to commercial or business
torture is treated as official business sufficient to justify the immunity, purposes.
then no party would be held liable and the structure of universal
jurisdiction over torture committed by officials is rendered abortive. US v. Hon. Luis Reyes (Philippines)
d.) Thus, Senator Pinochet was not acting in any capacity which gives A claim of immunity by an American official was rejected when shown to have
rise to immunity rationae materiae since authorized and organized been committed outside the scope of her authority as well as contrary to law.
torture are contrary to international law.

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Unauthorized acts of government officials or officers are not acts of the State, the Philippines and by the proper court of Makati City, Philippines. In addition,
and an action against the latter is not a suit against the State within the rule of the Ambassador and Minister Counsellor may be sued in their personal capacity
immunity of the State from suit. The doctrine of state immunity cannot be for tortious acts done with malice and bad faith.
used as an instrument to perpetrate an injustice.
The trial court denied the Motion to Dismiss, which the CA affirmed.
Holy See v. Eriberto Rosario, Jr. (Philippines)
The mere entering into a contract by a foreign state with a private party Petitioner questions the ruling of the CA that the former had waived its
cannot be the ultimate test of whether the activity or transaction is immunity from suit based on the agreement.
―commercial‖.
The SC ruled in favor of the petitioner:
One must also question: (a.) whether the foreign state is engaged in the a.) The rules of IL are neither unyielding not impervious to change.
activity in the regular course of business; and (b.) if not, whether the nature of The increasing need of sovereign states to enter into purely
the particular transaction or act is in pursuit of a sovereign activity or an commercial activities brought about a new concept of immunity. The
incident thereof. If the answer to (b.) is yes, and especially if it is not restrictive theory holds that immunity of the sovereign is recognized
undertaken for profit or gain, then the act is jure imperii. only with regard to public acts but not with regard to private acts.
In this case, petitioner has denied having bought and sold lands in the ordinary b.) The mere entering into a contract by a foreign state with a private
course of a real estate business. Instead, he claimed that the acquisition of Lot party cannot be construed as the ultimate test of whether or not it is
5-A was for the site of its mission or the Apostolic Nunciature of the an act jure imperii or jure gestionis. If the foreign state is not engaged
Philippines. Respondent failed to dispute such claim. regularly in a business or commercial activity, as in this case, the
particular act or transaction must be then tested by its nature. If it is
* How to claim State immunity? in pursuit of a sovereign activity or an incident thereof, then it is an
- In PIL, a State must request the Foreign Office of the state where it is sued to act jure imperii.
convey to the court that it is entitled to immunity.
- In the Philippines, the foreign government or international organization must c.) The existence alone of a provision in the contract stating that any
first secure an executive endorsement (in whatever form) of its claim of legal action arising out of the agreement shall be settled according to
sovereign or diplomatic immunity. the laws of the Philippines and by a specified court of the Philippines is
not necessarily a waiver of state immunity from suit. It is merely
Republic of Indonesia v. Vinzon (2003) meant to apply where: (a.) the sovereign party elects to sue in the
Petitioner, Republic of Indonesia entered into a Maintenance Agreement with local courts; or (b.) otherwise waives its immunity by any subsequent
respondent, James Vinzon of Vinzon Trade and Services, to maintain specified act. The applicability of Philippine laws include the principle
equipment (aircons, generator sets, electrical facilities, water heaters, water recognizing sovereign immunity.
motor pumps) at the Embassy Main and Annex buildings and that the Wisma
Duta. d.) Submission by a foreign state to local jurisdiction must be clear and
unequivocal, given explicitly or by necessary implication. There is not
Chief of Administration, Minister Counselor Azhari Kasim allegedly found such waiver in this case.
Vinzon’s work unsatisfactory and not in compliance with the agreed standards.
Thus, the Embassy terminated the agreement. e.) The establishment of a diplomatic mission is a sovereign function.
It encompasses its maintenance and upkeep. Hence, the state may
Respondent alleges that the termination was arbitrary and unlawful. Vinzon enter into contracts with private entities to maintain the premises,
filed a complaint in the RTC Makati. Petitioner filed a Motion to Dismiss based furnishings and equipment of the embassy and the living quarter of its
on sovereign immunity from suit as well as diplomatic immunity under the agents and officials.
Vienna Convention on Diplomatic Relations, regarding the suit against
Ambassador Soeratmin and Minister Counsellor Kasim. f.) Under Article 31 of the Vienna Convention on Diplomatic Relations,
a diplomatic agent may be sued in his private capacity for (c.) an
Respondent alleged that the petitioner has expressly waived its immunity from action relating to any professional or commercial activity exercised by
suit based on a provision in the Maintenance Agreement which states that any the diplomatic agent in the receiving State outside his official
legal action arising from the agreement will be settled according to the laws of functions. Bu the acts of the Ambassador and the Minister Counsellor in

lOMoARcPSD|8507427
terminating the agreement was committed in relation to their official - Exceptions:

functions. Thus, they enjoy immunity from suit. 1.) Mission must have consent of RS to instate and use a wireless
transmitter.
C. Diplomatic and Consular Immunities 2.) Diplomatic bag may only contain diplomatic documents or articles
- Based on customary law. for official use.
- Official representatives of a state are given immunities and privileges within e.) Inviolability of the person of diplomatic agent from arrest or detention.
the territory of another state. (Art. 29)
- The immunities and privileges are personal (for diplomat’s benefit) but also f.) Inviolability of the private residence, property, papers, and correspondence
functional (to enable the diplomat to perform his functions properly). of a diplomatic agent. (Art. 30)
- The receiving state has a corresponding obligation to protect the g.) Immunity of diplomatic agent from criminal, civil, and administrative
representative and his property and office. jurisdiction of RS; immunity from giving evidence as witness; immunity from
execution of judgement. (Art. 31)
* Diplomatic Immunities (Vienna Convention on Diplomatic Relations 1961) - Exceptions:
- Diplomatic relations are purely by mutual consent. 1.) real action relation to private immovable property in the RS, unless
- An agreement by the receiving state (RS) is a prerequisite before the head of held on behalf of the SS for mission purposes
mission is sent. The RS has no obligation to explain its refusal, and may at any 2.) action relating to succession, done as a private person and not on
time and without explanation notify the sending state (SS) that a diplomatic behalf of the SS
agent is persona non grata or that a staff member is unacceptable. 3.) action relating to any professional or commercial activity done in
- The SS can either recall the person or terminate his functions with the the RS outside his official capacity
mission. h.) Express waiver of immunity from suit made by SS or impliedly by diplomatic
agent upon initiation of proceedings, but only in respect to compulsory
Article I. Who can enjoy diplomatic immunities? counterclaims. Waiver of immunity from suit is distinct from waiver of
a.) head of mission immunity from execution. (Art. 32)
b.) diplomatic agent (head of mission or member of diplomatic staff) i.) Exemption from social security provisions of the RS for services rendered for
c.) members of the mission including the diplomatic, administrative and the SS. (Art. 33)
technical, and service staff - Exception:
d.) private servant in the domestic service of a member of the mission, not 1.) private servant who is either a national or a permanent resident of
employed by the sending state the RS; and
e.) premises of the mission, irrespective of ownership 2.) not covered by the social security provision in the SS or a third
state
Article III. Functions of the diplomatic mission: j.) Tax exemption of diplomatic agents. (Art. 34)
a.) Represent the sending state in receiving state - Exceptions:
b.) protect its interests and of its nationals 1.) indirect taxes incorporated in price of goods or services
c.) negotiate with the government 2.) dues and taxes on private immovable property in RS (unless on
d.) report on developments and conditions in the receiving state behalf of SS, for mission purpose)
e.) promote friendly relations 3.) estate, inheritance, succession duties
4.) private income from within RS
5.) charges levied for services rendered
6.) registration, court or record fees, mortgage dues and stamp duty
* Rights and Privileges of the diplomatic mission: on immovable property
a.) Inviolability of mission premises and means of transport; RS has duty to k.) Free entry of articles for official use of the mission and for the personal use
protect the premises and prevent any disturbance to the mission or impairment of the diplomatic agent or his family. (Art. 36)
of its dignity. (Art. 22) - Exception:
b.) Tax Exemptions for the SS and the head of mission, not extending to those 1.) personal baggage of the diplomatic agent may be inspected in
payable under the laws of RS by persons contracting with them. (Art. 23) his/duly authorized representative’s presence if there is serious ground
c.) Inviolability of archives and documents of the mission. (Art. 24) to presume that it contains articles not exempted, or prohibited by
d.) Free communication and inviolability of official correspondence, of the import or export laws or quarantine regulations
diplomatic courier, and of the diplomatic bag. (Art. 27)

lOMoARcPSD|8507427
l.) Extension of immunity to family of diplomatic agent under Art. 29-36; k.) exercise supervision and inspection over vessels under SS flag, aircrafts
immunity of members of administrative and technical staff and their families registered in SS, and their crew
under Art. 29-35; immunity of service staff for official acts and tax exemption l.) extend assistance to such vessels and aircrafts and their crew
under Art. 33; and tax exemption of private servant for emoluments due to m.) other functions not prohibited by laws of RS
employment. (Art. 37)
- Exception: * Rights and Privileges of the consular mission:
1.) nationals of RS a.) Freedom of movement (Art. 34)
2.) permanent resident of RS (not for family of diplomatic agent) b.) Freedom of communication (Art. 35)
m.) Immunities of a diplomatic agent who is a national or permanent resident c.) Communication and contact with nationals of the SS (Art. 36)
of RS is limited to immunity from jurisdiction and inviolability in respect to d.) Personal inviolability of consular officers from arrest or detention (Art. 41)
official acts. For others, only such privileges and immunities that the RS may - Exceptions:
allow. (Art. 38) 1.) grave crime; and
n.) Privileges and immunities begin from entry into RS, or if already there, 2.) pursuant to a decision by a competent judicial authority
from notification of appointment to Ministry of Foreign Affairs of the RS. They e.) Notification of arrest, detention or prosecution (Art. 42)
cease upon leaving the RS, or on reasonable period, but shall subsist even in f.) Immunity from jurisdiction for official acts. (Art. 43)
armed conflict. (Art. 39) - Exceptions:
1.) civil actions arising from contract not entered into in official
*Obligations of diplomatic mission: capacity;
a.) To respect the laws and regulations of the RS (Art. 41) 2.) civil action by a 3rd party for damage arising from an accident in
b.) To refrain from practice for personal profit any professional or commercial the RS cause by a vehicle, vessel or aircraft
activity in the RS. (Art. 42) g.) Liability to give evidence; a consular employee can’t refuse while a
consular officer may refuse without threat of coercive measure or penalty.
* Consuls and Consular Immunities (Vienna Convention on Consular Relations (Art. 44)
1967) h.) Waiver of privilege and immunity under Art. 41, 43, and 44 by SS (Art. 45)
- Not concerned with political matters.
- Attend only to the administrative and economic issues. US v. Tehran: US Dipliomatic and Consular Staff in Iran Case ICJ (1980)
- Head of consular post must first be authorized by RS via an exequatur. Iranian students seized the US embassy in Tehran and a number of consulates in
- RS may at any time and without explanation notify the SS that a consular the outlying cities. The Iranian authorities failed to protect the embassy and
officer is a persona non grata or a staff member is unacceptable. later appeared to adopt the students’ actions. Over 50 US nationals were held
- SS can only recall or terminate his functions with the consular post. hostage for 444 days.
- RS has duty to protect the consular premises, archives and interests of the SS
and ensure the unimpeded functioning of the consular offices. Court must decide whether the initial attack by the students could be
attributed to the Iranian government and whether Iran was therefore in
* Article V. Consular Functions: violation of its international obligations.
a.) protect the interest of the SS and of its nationals in the RS
b.) further development of economic, commercial, cultural and scientific
relations and promote friendly relations between RS and SS In deciding in favor of the US, the ICJ ruled:
c.) report on development and condition of RS a.) The Iranian authorities were fully aware of their obligations under the
d.) issue passports and travel documents to nationals of SS and visa and conventions to protect the premises of the US embassy and its diplomatic and
appropriate documents for those who wish to travel to SS consular staff and were aware of the urgent need for action. They had the
e.) assist nationals means to perform their obligations but failed to do so.
f.) act as notary and civil registrar and perform administrative functions
g.) safeguard interests of nationals in cases of succession mortis causa in RS b.) The actions required of the Iranian Government by the Vienna Conventions
h.) safeguard interest of nationals who are minors or lack full capacity and by general IL is manifest. They must immediately take every effort and
i.) represent or arrange representation for nationals before the tribunals or opportunity to bring the flagrant infringements of the inviolability of the
other authorities of the RS premises, archives, and diplomatic and consular staff of the US embassy to a
j.) transmit judicial and extrajudicial documents or executing letters to take speedy end and to restore the consulates to the US control, and in general
evidence for the courts of the SS reestablish the status quo and offer reparation for damage.

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Alfred Dunhill of London, Inc. v. Cuba

c.) The Iranian Government’s decision to continue the subjection of the The issue is whether or not the failure of Cuba to return to Dunhill funds
embassy to occupation by militants and the staff to detention as hostages mistakenly paid by the latter for cigars sold to him by certain expropriated
clearly gave rise to repeated and multiple breaches of the Vienna Conventions, Cuban cigar business was an ―act of state.‖
beyond their failure to prevent the attacks.
The Court ruled in favor of Dunhill:
d.) The Iranian Government did not break of diplomatic relations with the US, a.) The concept of an act of state should not be extended to include the
not did it indicate any intention to declare any member of the US diplomatic or repudiations of a purely commercial obligation owed by a foreign sovereign or
consular staff in Tehran persona non grata. Thus, Iran failed to employ the by one of its commercial instrumentalities.
remedies placed at its disposal by diplomatic law specifically for dealing with
activities it now complains of. Kirkpatrick Co. v. Environmental Tectonics Corp.
A contract was entered into between the Nigerian Government and Kirkpatrick
D. Immunity of International Organization Co. for the construction and equipment of an aeromedical center at Kaduna Air
- The basis of their privileges and immunities is not sovereignty but necessity Force base in Nigeria.
for the effective exercise of their functions.
Environmental Tectonics, an unsuccessful bidder, found that Kirkpatrick had
E. The Act of State Doctrine bribed Nigerian officials to win the contract. It brought the matter to the
Nigerian Air Force and the US embassy in Lagos.
Underhill v. Hernandez
Through the 1982 revolution in Venezuela, Gen. Hernandez who commanded US attorney for the District of NJ charged Kirkpatrick with violations of the
the anti-administration party, assumed leadership of the government. Foreign Corrupt Practices Act of 1977 to which the latter pleaded guilty.
George Underhill, a US citizen, had constructed a waterworks system for Environmental Tectonics brought a civil action against Kirkpatrick to seek
Bolivar under a contract with the government and operated a machinery repair damages under the Racketeer Influenced and Corrupt Organizations Act.
business. Gen. Hernandez refused to grant Underhill a passport to leave the
city to coerce him to operate his waterworks and repair works for the benefit Defendant moved to dismiss the complaint on the ground of ―act of state
of the community and the revolutionary forces. doctrine.‖
Underhill files a suit in the US to recover damages for the detention, his SC ruled that the act of state doctrine is inapplicable where the validity of a
alleged confinement to his own house, and for certain alleged assaults and foreign government act is not in question, as in this case.
affronts by the soldiers of Hernadez’s army.
In denying Underhill’s plea, the US court applied the ―act of state doctrine‖:
a.) Every sovereign state is bound to respect the independence of every other CHAPTER 11
sovereign state, and the courts of one county will not sit in judgment on the STATE RESPONSIBILITY
acts of the government of another, done within its own territory.
b.) Redress of grievances due to such acts must be obtained through the means PROTECTION OF ALIENS
open to be availed of by sovereign powers as between themselves.  No State is obliged to admit aliens into its territory unless there is a treaty
requiring it
Banco Nacional de Cuba v. Sabbatino  Generally, it is difficult to deny admission to all; Hence, States impose
The act of state doctrine is not a rule of international law but of judicial legal standards for admission
restraint in domestic law, embodied by the principle of separation of powers,  Once admitted, at least under democratic regimes, aliens may not be
whereby courts refrain from making decisions in deference to the executive expelled without due process
who is the principal architect of foreign relations.  Aliens = ―nationals abroad‖
 States protect aliens within their jurisdiction in the expectation that their
own nationals will be properly treated when residing or sojourning abroad
 Forms of ill-treatment of foreign nationals:
a. Mistreatment by judicial or police authorities

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b. Unlawful expropriation of property

c. Denial of justice or denial of due process of law – failure to prosecute Neer Claim
those who attack foreign nationals Facts:
 Diplomatic protection – the instrument used for the protection of aliens Mr. Neer, a US national working in Mexico, was shot to death. It was
o Injury to a national abroad = injury to the individual’s State of claimed that the Mexican government had been negligent in their
nationality investigation of the murder.
o The interest of the State is in the redress of the injury to itself and not
of the injury to the individual Held:
o Individuals are at the mercy of their own State Treatment of an alien, in order to constitute an international
delinquency should amount to an outrage, bad faith, willful neglect of
Corporations and Shareholders duty, or to an insufficiency of governmental action so far short of
 The doctrine of ―effective link‖ international standards that every reasonable and impartial man would
readily recognize its insufficiency.
Barcelona Traction Case
Facts: Denial of Justice
The claim arose out of the adjudication of bankruptcy in Space of  Harvard Draft Convention on the Responsibility of States for Damages
Barcelona Traction, a company incorporated in Canada. The claim’s object o Art. 9. Denial of Justice exists when there is
was to seek reparation for damage suffered by its shareholders, Belgian a. Denial
nationals, as a result of acts committed contrary to international law. b. Unwarranted delay or obstruction of access to courts
c. Gross deficiency in the administration of judicial or remedial process
Held: d. Failure to provide those guarantees which are generally considered
The Court found that Belgium lack jus standi to exercise diplomatic indispensable to the proper administration of justice
protection of shareholders in a Canadian company with respect to e. Manifestly unjust judgment – but error of a national court which does
measures taken against that company in Spain. not produce manifest injustice is not denial of justice
The breach, if any, was committed against the company, hence, only the Enforcement Regimes
company could take action. Whenever a shareholder’s interests are harmed  Who can resolve issues of violations of the rights of aliens when appealed
by an act done to the company, it is to the latter that he has to look to to by States in conflict?
institute appropriate action. 1. International Court of Justice
2. Ad-hoc tribunals established for the purpose
As to who should have the right to protect the corporation, it is the State a. US-Iran Claims Tribunal b. UN Compensation Settlements
of Nationality of the corporation, in this case, Canada. 3. Lump-sum Settlements (Claims Settlement Agreements)
a. US-Cambodia b. US-Vietnam
Standard for the Protection of Aliens
 Under the Roman Law: DOCTRINE OF STATE RESPONSIBILITY
1. Jus gentium – applicable to both citizens and aliens  When an injury has been inflicted, there is need to determine whether the
2. Jus civile – applicable only to Roman citizens State can be held responsible for it
 In modern times  Internationally wrongful act – committed when a State violates a customary
1. National treatment or Equality of treatment – aliens are treated in the rule of international law or a treaty obligation
same manner as nationals  What needs to be understood?
o Bright side: aliens would enjoy the same benefits as local nationals 1. Elements of an Internationally wrongful act
o Dark side: if the State is tyrannical and its municipal laws are harsh 2. Attributability of the wrongful act to the State
and violative of human rights, then aliens would likewise be subject to 3. Enforcement of the obligation that arises from the wrongful act
such laws
2. Minimum International Standard – however harsh the municipal laws
might be, aliens should be protected by certain minimum standards of INTERNATIONALLY WRONGFUL ACT
humane protection  No State can escape this responsibility when once it has committed an act
which satisfies the requirements of an ―internationally wrongful act‖

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 Elements of Internationally wrongful act: This responsibility does not find its justification in general principles, those
Subjective – act must be attributable not to the persons or agencies who
1. regulating the judicial organization of the State. The act of an official is
performed it, but to the State itself only judicially established as an act of State if such an act lies within the
2. Objective – act constitutes a breach of an international obligation of the official’s sphere of competence.
State
 What determines the wrongful character of the act is international law and The act of an official operating beyond this competence is not an act of
not internal law State. It should not in principle, therefore, affect the responsibility of the
State.
ATTRIBUTION TO THE STATE In order to be able to admit this so-called objective responsibility of the
1. Acts of State Organs State for acts committed by its officials or organs outside their
a. Acts of any State organ whether the organ exercises legislative, competence, they must have acted at least to all appearances as
executive, judicial or any other functions, whatever position it holds, competent officials or organs, or they must have used powers or methods
and whatever its character appropriate to their official capacity.
o Organ – includes any person or body which has that status in
accordance with the international law of the State Applying to the present case, the officers in question consistently
b. Conduct of an entity which is not an organ of the State but which is conducted themselves as officers in the brigade of the Villista general; in
empowered to exercise elements of governmental authority provided this capacity they began exacting the remittance of certain sums of money
the entity was acting in that capacity in the case in question and when Caire refused, they finally shot him.
c. Conduct of an organ placed at the disposal of a State by another State
acting in the exercise of elements of governmental authority of the Under these circumstances, there remains no doubt that, even if they are
State at whose disposal it had been placed to be regarded as having acted outside their competence, the officers have
d. Conduct of a State organ or of an entity empowered to exercise involved the responsibility of the State.
elements of governmental authority, such organ or entity having acted
in that capacity, exceeding its authority or contravening instructions
concerning its exercise CORFU CHANNEL (previous case)
NICARAGUA v. US
CAIRE CLAIM Facts:
Facts: Nicaragua alleges that the mining of Nicaraguan ports or waters was
Caire, a French national, was killed in Mexico by Mexican soldiers after carried out by US military personnel. The President of US authorized a US
they had demanded money from him. Government agency to lay mines in Nicaraguan ports, either in Nicaraguan
internal waters or in its territorial sea, by persons in the pay and acting of
Issue: the instructions of such agency. US did not issue any public and official
w/n Mexico is responsible for actions of individual military personnel acting warning to international shipping of the existence and location of the
without orders or against the wishes of their commanding officers mines; and that personal and material injury was caused by the explosion
of the mines. The imputability to US of these attacks appear therefore to
Held: the Court to be established.
Objective responsibility of the States – responsibility for the acts of the
officials or organs of a State, which may devolve upon it even in the Nicaragua complains also of infringement of its air space by US military
absence of any ―fault‖ on its own personnel. The Court finds that only violations of Nicaraguan air space
imputable to US on the basis of the high altitude reconnaissance flights and
It tends to impute to the State, in international affairs, the responsibility low altitude flights causing ―sonic booms.‖
for all the acts committed by its officials or organs which constitute
offenses from the point of view of the law of nations, whether the official Nicaragua also alleges that US conceived, created and organized a
or organ in question has acted within or exceeded the limits of his mercenary army, the contra force. The Court is not able to satisfy itself
competence. that US created the contra force but holds it largely financed, trained,
equipped, armed and organized the FDN, one element of the force.

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Held:
Issue: Even assuming that the ―hut tax‖ was the effective cause of the native
w/n the contras is equated as an organ of US or is acting on behalf of US rebellion, it was in itself a fiscal measure to which British Government was
perfectly entitled to exercise.
Held:
The Court considers that the evidence available to it is insufficient to It is well established principle of international law that no government can
demonstrate the toal dependence of the contras on US aid. A partial be held responsible for the act of rebellious bodies of men committed in
dependency may be inferred from the fact that the leaders were selected violation of its authority, where it is itself guilty of no breach of good
by US. There is no clear evidence that US actually exercised such a degree faith, or of no negligence in suppressing insurrection.
of control as to justify treating the contras as acting on its behalf.
2. Acts of other Persons SHORT v. IRAN

a. Conduct of a person or group of persons acting on the instructions of, Facts:
or under the direction or control of, that State in carrying out the Claimant is an American national employed by an American Company in
conduct Iran. 3 days before the Islamic Revolutionary Government took office,
b. Conduct of a person or group of persons exercising elements of the claimant was evacuated from Iran on company orders. The claimant sought
governmental authority in the absence or default of the official compensation for salary and other losses resulting from his alleged
authorities and in circumstances such as to call for the exercise of expulsion contrary to international law.
those elements of authority
Held:
US v. IRAN (previous case) Where a revolution leads to the establishment of a new government, the
State is held responsible for the acts of the overthrown government insofar
3. Acts of Revolutionaries as the latter maintained control of the situation.
a. Conduct of an insurrectional movement, which becomes the new
government of a State Claimant relies only on the acts committed by revolutionaries and is unable
b. Conduct of a movement, insurrectional or other, which succeeds in to identify any agent of the revolutionary movements whose actions
establishing a new State in part of the territory of a pre-existing State compelled him to leave Iran. The acts of supporters of a revolution as
or in a territory under its administration opposed to its agents cannot be attributed to the government.
HOME MISSIONARY SOCIETY CLAIM (US v. BRITAIN) Claimant relies on the declarations made by the leader of the Revolution.
Facts: While these statements are of anti-foreign and in particular anti-American
The collection of a tax newly imposed by Great Britain on the natives of sentiments, these does not amount to an authorization to revolutionaries
Sierra Leone known as the ―hut tax‖ was the signal for a serious and to act in such a way that the Claimant should be forced to leave Iran.
widespread revolt in the Ronietta district.
In the course of rebellion, all US’ Missions were attacked, and either PRELIMINARY OBJECTIONS
destroyed or damaged, and some of the missionaries were murdered.  Claim of denial of justice may be lost due to failure to answer some
preliminary objections
US contends that British Government is responsible for the revolt since it a. Lack of nationality link
wholly failed to take proper steps for the maintenance of order and the b. Failure to exhaust national remedies
protection of life and property, and that the loss of life and damage to o Purpose: to protect international courts from being swamped with
property is the result of such neglect. cases which are better handled locally
o Application: cases founded on diplomatic protection or on injury to
Issue: aliens
w/n the revolt is attributable to the British Government

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REPARATION EXPROPRIATION OF ALIEN PROPERTY

1. Obligation to make full reparation for the injury caused by the  Expropriation can be internally wrong if it is done contrary to the
internationally wrongful act principles of international law
2. Injury consist of any damage, whether material or moral, arising in  1962 UN General Assembly Resolution on the Sovereignty over Natural
consequence of the internationally wrongful act Resources
3. Responsible State may not rely on the provisions of its internal law as o Expropriation shall be based on grounds or reasons of public utility,
justification for failure to comply with its obligation security or the national inters which are recognized as overriding purely
individual or private interests, both domestic and foreign
CHORZOW FACTORY CASE (GERMANY v. POLAND) o In such cases, the owner shall be paid appropriate compensation in
Facts: accordance with the rules in force in the State taking such measures in
The action of Poland which the Court has judged is not an expropriation the exercise of its sovereignty and in accordance with international law
but is a seizure of property which could not be expropriated even against
compensation.
Held: CHAPTER 12
If follows that the compensation due to German Government is not INTERNATIONAL HUMAN RIGHTS LAW
necessarily limited to the value of the undertaking at the moment of
disposition, plus interest to the day of payment. Such a limitation might FROM ALIEN RIGHTS TO HUMAN RIGHTS
result in placing Germany and the interests protected by Geneva  Early concern about human rights was about specific classes of people, e.g.
Convention, in a situation more unfavourable than that in which Germany slaves, minorities, and certain nationalities
and these interests would have been if Poland had respected the said  It was not until the birth of the United Nations that human rights of all
Convention. Such a consequence would not only be unjust, but also and people became the subject of legislation
above all incompatible with the aim of the Convention that is the  Human Rights – those inalienable and fundamental rights which are
prohibition of the liquidation of property, rights and interests of German essential for life as human beings
nationals and of companies controlled by German nationals in Upper  3 generations of human rights:
Silesia. 1. Traditional civil and fundamental rights
2. Social and economic rights
The essential principle contained in the actual notion of an illegal act is 3. Right to peace, clean environment, self-determination, common
that reparation must wipe out all the consequences of the illegal act and heritage of mankind, development, minority rights
re-establish the situation would have exited if that act had not been
committed. AN EMERGING INTERNATIONAL BILL OF HUMAN RIGHTS
 The UN became the cradle for the development of the new international
Restitution in kind, or, if this is not possible, payment of a sum law on human rights
corresponding to the value which a restitution in kind would bear; the
 Key obligations assumed by the Organization and its Members:
award, if need be, of damages for loss sustained which would not be
1. Higher standards of living, full employment, and conditions for
covered by restitution in kind or payment in place of its – such are the
economic and social progress and development
principles which should serve to determine the amount of compensation
2. Solutions for international related problems
due for an act contrary to international law.
3. Universal respect for, and observance of, human rights
 These, however, do not provide for the definitions of human rights
CALVO CLAUSE REJECTED
THE COVENANT ON CIVIL AND POLITICAL RIGHTS
 A provision in a contract to the effect that ―under no condition shall the
 The following are substantive rights:
intervention of foreign diplomatic agents in any matter related to the
contract‖ be resorted to
1. Life, Liberty and Property, and Equality
 This was rejected in North American Dredging Company Claim due to the
 This, however, does not say when protected life begins, whereas the
right to seek redress is a sovereign prerogative of a State and a private
Philippines protects ―the life of the unborn from conception‖
individual has no right to waive the State’s right
 There is also no provision on the right to property

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 On the right to life, the Covenant’s Article 6(2) expresses a bias for the 7. Minorities
abolition of the death penalty and allows its imposition, in countries which  This guarantees ―ethnic, religious or linguistic minorities‖
still have death penalty, only after conviction for the most serious crimes  This is one of the few rights which was already the subject of earlier
 In Article 14, it is more restrictive in the matter of publicity of criminal treaties (Treaty of Versailles and Polish-German Upper Silesia Treaty)
proceedings ―where the interest of juvenile persons otherwise requires or  2-fold aspect for the concern for minorities:
the proceedings concern matrimonial disputes or the guardianship of 1. Fear of a secessionist movement by minorities
children 2. Genuine concern for the human rights of minorities and the desire to
 2 provisions on Right to Compensation: flourish
1. Anyone who has been a victim of unlawful arrest or detention
2. Any person who has been a victim of miscarriage of justice unless the 8. Self-determination of Peoples
non-disclosure of the unknown fact in time is wholly or partly  This covers 2 important rights:
attributable to him a. Right to freely determine their political status and freely to pursue
their economic, social and cultural development
2. Torture, ill-treatment and Prison Conditions b. Right for their own ends, to freely dispose of the natural wealth and
 Proscription on torture and other forms of ill-treatment that offend not resources without prejudice to any obligation arising out of
only against bodily integrity but also against personal dignity international cooperation
 Imprisonment in conditions seriously detrimental to a prisoner’s health  Peoples – include those ruled by colonial powers; those who form a
constitutes a violation of Articles 7 and 10(1) of the Covenant component part of a multi-national state
 2 aspects of Self-Determination:
3. Freedom of Movement a. Internal – this is the 2 important rights
 Right to travel within the country, right to leave the country, right to b. External – belongs to colonies and to those non-self governing and
return to one’s country, the right to change one’s residence and the right Trust Territories
of the aliens not to be expelled without due process
 Limitations: OPTIONAL PROTOCOL ON THE COVENANT ON CIVIL AND POLITICAL RIGHTS
a. Those provided for by law  This treaty is designed to enable private parties who are victims of human
b. Necessary to protect national security, public order, public health or rights violations
morals  Complaints may be filed only against States who have ratified the Protocol
 The separation between the right to leave and right to return to one’s
country is to make the limitation more narrow than for the right to leave THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
the country since exile is now prohibited by customary law and may even  The rights specific to this are social welfare rights
be jus cogens a. Right to work
b. Right to favorable conditions of work
4. Legal Personality, Privacy and the Family c. Right to form free trade unions
 When does one become a person? The Covenant does not say. d. Right to social security and insurance
Legal Personality Capacity to Act e. Right to special assistance for families
Whether citizens or aliens May not be available to some by f. Right to adequate standard of living
reason, for instance, infancy, minority g. Right to the highest standard of physical and mental health
or insanity h. Right to education including compulsory primary education
i. Right to the enjoyment of cultural and scientific benefits and
5. Thought, Conscience, Religion, Expression and Political Freedoms international contracts
 This includes the explicit protection of the Right of Parents in the matter
of Religion for their children DUTY TO IMPLEMENT
 Covenant prohibits ―propaganda for war‖  The Philippines is a party to the UN Charter, UNDHR, the 2 Covenants, and
to the Optional Protocol to the Covenant on Civil and Political Rights
6. Associations and Unions  Treaty commitments become part of domestic law
 Covenant is silent about the right of government employees to form unions  Those which are not self-executing provisions must be attended to by the
which is explicit in our Constitution necessary steps, in accordance with its constitutional processes and with
the provisions of present Covenants
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 Progress Realization – State is obligated to undertake a program of CHAPTER 13: PEACEFUL SETTLEMENT OF INTERNATIONAL
activities and to realize those rights which are recognized by the Economic DISPUTES
Covenant
What is international dispute?
Other Conventions on Human Rights  A disagreement on a point of law of fact, a conflict of legal views or
a. Genocide Convention interests between 2 persons
b. Convention on the Elimination of All Forms of Racial Discrimination  Must have practical effect on the relationship between the parties
c. Convention on the Elimination of All Forms of Discrimination Against
Women Peaceful methods of settling disputes:
d. Convention Against Torture and other Cruel, Inhuman or Degrading  Art. 2, par. 3 of UN Charter: ―All members shall settle their international
Treatment or Punishment disputes by peaceful means in such manner that international peace and
e. Convention on the Rights of the Child security, and justice are not endangered.
f. Convention on Migrant Workers  There is no obligation to settle disputes except in cases that might
endanger peace and security.
 But if a decision is made to settle disputes, the obligation is to settle
CUSTOMARY HUMAN RIGHTS LAW them peacefully.
 Prohibition on Torture, Genocide, Slavery and Discrimination
Key provisions in UN Charter:
 Art. 33: (disputes likely to endanger international peace and security)
INTERNATIONAL IMPLEMENTATION OF HUMAN RIGHTS LAW  Parties to any dispute shall first of all seek a solution by negotiation,
 Each country has the obligation to implement human rights law within its enquiry, mediation, conciliation, arbitration, judicial settlement,
jurisdiction properly done through municipal or regional courts resort to regional agencies or arrangements, or other peaceful means
 2 different procedures used by Human Rights Commission for responding to of their choice.
violations of human rights:  When it deems necessary, the SC shall call upon the parties to settle
a. Confidential consideration under ECOSOC Resolution 1503 their disputes by such means.
o The confidential findings of the Sub-Commission are brought to the
attention of CHR  Art. 36:
o The CHR is expected to submit its report and recommendation to the  SC may, at any stage recommend appropriate procedures or methods
ECOSOC of adjustment.
o Procedure is kept confidential, but findings invariably find their way  SC should take into consideration what has already been adopted by
into media the parties.
b. Public debate procedure under ECOSOC Resolution 1235
 SC should consider that legal disputes should generally be referred by
o This carries 2 types of activities:
the parties to the ICJ.
1. It holds annual public debates in which governments and NGOs are
given opportunity to identify specific situations which deserve
 Art. 37:
attention
2. It engages in studies and investigations of particular situations  If parties fail to settle disputes via Art. 33, they shall refer it to the
SC.
INTERNATIONAL CRIMINAL COURT  If SC deems the dispute to likely endanger international peace and
security, it shall: (a) take action under Art. 36; or (b) recommend
 Until the establishment of ICC, international crimes were prosecuted in ad
hoc criminal courts (Nuremberg and Tokyo Tribunals) appropriate terms of settlement.
 The goal of ICC is to demand individual and not collective accountability
 Art. 38:
 Its jurisdiction is limited to most serious international crimes: Genocide,
Crimes against Humanity, War crimes, and the Crime of Aggression  If all parties request, SC may make recommendations for pacific
settlement.
 Principle of Complementarity – the court of last resort

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Classifications of peaceful means of settlement:  Arbitral decisions

A. Non-judicial  Applies international law UNLESS parties specify that some other law
 Negotiation: applies.
 Preferred since States are hesitant to submit disputes to adjudicatory  Arbitral decisions may be challenged if:
bodies. a. the arbitral body exceeds its powers
 No set rules: b. there was corruption on the part of a member of the body
 An agreement to negotiate may be formalized via treaty or c. failure to state reasons for the awards OR a serious departure from
exchange of notes. fundamental rule of procedure
 May be arm’s-length or face to face. d. the undertaking to arbitrate OR the compromis is a nullity
 To be binding, parties MUST agree to it.
 Preliminary step is ―good offices‖ when a neutral 3rd party tries to  Domestic courts may refuse to give recognition to arbitral awards
bring 2 disputants together, after which disputants look for a win-win under Convention on the Recognition and Enforcement of Foreign
solution via a give-and-take process. Arbitral Awards:
a. agreement to arbitrate was not valid under applicable law
 Mediation: b. adverse party did not receive proper notice OR was not afforded
 Involves assistance of 3rd parties (approved by bother parties) who opportunity to present its case
either act as bridge between parties who don’t meet OR may sit with c. award is outside the terms of agreement to arbitrate
the disputants to chair meetings, suggest solutions, etc. d. the constitution of the tribunal OR the arbitral procedure was
contrary to the agreement or the law of the state where
 Inquiry: arbitration took place
 Fact-finding done by a designated group of individuals or institutions. e. award has not yet become binding, has been set aside or
suspended by a competent court where it was made
 Resolves disputes based on questions of fact.
f. under the law of the adverse party, the subject matter is not
capable of settlement by arbitration
 Conciliation:
g. under the law of the adverse party, recognition or enforcement
 A more formal technique whereby parties agree to refer controversies would be contrary to public policy
to a 3rd party to make findings of fact and recommendations.
 Generally, parties are not bound by the recommendations. Merely C. Judicial
clears the air.
 ICJ
 All members of the UN are ipso facto parties to the Statute of ICJ, but
B. Quasi-judicial
it does not mean acceptance of the court’s jurisdiction.
 Arbitration
 Only means that the State may accept its jurisdiction.
 Binding settlement of a dispute on the basis of law by a non-permanent
 Only states may be parties in the court.
body designated by the parties.
 General principles:
 The compromis d’arbitrage is agreed upon by the parties and sets out:
a. States cannot be compelled to submit their disputes to
(a) composition; (b) jurisdiction; (c) rules of procedure to be applied.
international adjudication unless they consent.
 States cannot be required to submit to arbitration UNLESS there is a b. States may limit their acceptance to certain types of disputes and
previous agreement. attache various conditions and reservations.
 Different from judicial settlement since parties have a greater say in
deciding the law applied, composition of tribunal, process, etc.
 Composition of the ICJ:
 Art. 2:
 3 types of arbitral agreement:
 Composed of a body of (a) independent judges, regardless of
a. Arbitration clause incorporated in a treaty
nationality, (b) with high moral character, (c) who possess
b. Treaties solely to establish methods of arbitration (i.e. Hague
qualifications required by their countries for appointment to the
Convention for Pacific Settlement of Disputes)
highest judicial offices OR are jurisconsults of recognized competence
c. Ad-hoc arbitral agreements (i.e. US-Iran claims)
in international law.
 Art. 3:
 15 members, no 2 of whom from the same State
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 If dual citizenship, nationality is based on where civil and political  Disputes are to be settled by IL and not DL.
rights are ordinarily exercised.  Court acquires jurisdiction only upon referral by both parties.
 Art. 4:  3 ways to accept ICJ’s jurisdiction:

 The Court can form chambers, composed of 3 or more judges, for a. Ad-hoc basis (one party applies unilaterally to the Court and is
dealing with particular categories of cases; or (b) particular cases, the consented to by the other party)
composition to be approved by the parties; or (c) at the request of the b. Parties adhere to a treaty which accepts jurisdiction on matters of
parties. interpretation or application of a treaty.
c. Optional system (Unilateral declaration of recognition in relation
 Art. 26: to any other state accepting the same jurisdiction in all legal
 Chamber decisions are deemed Court decisions. disputes)
 Art. 27:
 Judges of the nationality of the parties shall retain their right to sit in Aerial Incidence Case (US. vs. Bulgaria, ICJ 1959)
the case. 1. Facts:
 If a judge of the same nationality of a party is included in the Bench by  US acceded to the optional clause, thereby accepting the compulsory
the Court, the other party may choose a person to sit as judge, jurisdiction of the ICJ but subsequently made a reservation for
preferably among those nominated as candidates. ―disputes with regard to matters which are essentially within the
 If the Bench does not include a judge of the same nationality as the domestic jurisdiction of the US, as determined by the US‖ (Connally
judges, the parties may choose a judge. amendment)
 The President shall request the members of the Chamber to give place  EL Al Israel airliner was driven off course by bad weather and
as necessary. innocently passed through Bulgarian air space where it was shot down
 Several parties of the same interest are deemed one party only. by Bulgarian military planes, killing all passengers and crew, including
6 US nationals.
 Jurisdiction of the ICJ:  Investigators argue that Bulgarian military failed to adhere to
1. Contentious international civil aviation agreements involving appropriate
 Art. 36: interception and identification of intruding aircraft.
 All cases which parties refer to it and all matters specially provided for  The case was initially brought to the ICJ by Israel, where ICJ ruled that
in the UN Charter or in treaties and conventions in force. it had no jurisdiction, stating that Bulgaria’s acceptance of the
optional clause in the Statute of PCIJ did not carry over to acceptance
 Signatory states may at any time declare compulsory recognition in
of the optional clause of the ICJ.
relation to any other state accepting the same obligation, the
jurisdiction of the ICJ in all legal disputes concerning: [Optional  US continued its claim based on violation of international law and
system] injuries to US nationals.
a. interpretation of a treaty  On grounds of reciprocity and consensual basis of ICJ jurisdiction,
b. any question of international law Bulgaria contests ICJ’s jurisdiction. Bulgaria had invoked the Connelly
c. existence of any fact which, if established, would constitute a amendment exempting matters within its internal competence and
breach of international obligation contended that its airspace security and anti-craft defenses were
d. nature or extent of the reparation for breach of international within its domestic jurisdiction.
obligation  US withdrew its application, which the Court accepted as the end of
 Declarations of compulsory recognition may be made un/conditionally, the dispute.
on condition of reciprocity of several or certain states, or for a certain
time.
 Submitted to the Sec.Gen. of UN Nicaragua vs. US (ICJ, 1984)
I. Facts:
 Reciprocity enables a party to invoke a reservation to the
compulsory recognition which was not expressed in its own  In 1964, the US made a Optional Clause Declaration with a reservation
Declaration BUT was expressed in the other party’s. that ―it would remain in force for 5 years and thereafter until the
expiration of 6 months after notice was given to terminate.‖
 In case of dispute as to Court’s jurisdiction, it shall be settled by ICJ
decision.  The 1984 notification was deposited with the Sec.Gen. by the US,
stating that ―the 1946 declaration shall not apply to disputes with any
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Central American State or arising out of events in Central  Court found that Australia’s behavior cannot be assessed without first
America...this notice shall take place immediately and remain in force entering into the question of why Indonesia could not lawfully have
for 2 years.‖ concluded the 1989 treaty. The very subject matter would be a
 The ICJ initially found that Nicaragua could rely on the 1946 determination whether, having regard to the circumstances in which
declaration since it was a ―state accepting the same obligation‖ on the Indonesia entered and remained in East Timor, it could/not have
basis if its own declaration under the Statute of the PCIJ. acquired power to enter into treaties on behalf of ET relating to
 US contends that the 1984 notification should be given effect, thereby resources of its continental shelf. The court cannot make such
taking away the court’s jurisdiction over the case. determination without the consent of Indonesia.
II. Held:  W/N the behavior of Australia breaches rights erga omnes (ET’s right
 In its 1946 declaration, the US included a proviso which required a 6 to self determination), the Court cannot rule on the lawfulness of the
months’ notice prior to termination. conduct of a State when its judgment would imply an evaluation of the
 US contends that Nicaragua was not a ―state accepting the same lawfulness of the conduct of another State which is not a party to the
obligation‖ since its own declaration was of undefined duration and case. Further, the nature of the obligation is different from the rule of
thus liable to immediate termination. Thus, Nicaragua could not rely consent to jurisdiction.
the the US’ time-limit proviso under the principle of reciprocity.  Finally, the court ruled that it cannot be inferred from the sole fact
 However, the Court found the same untenable, given that the time- that a number of resolutions of the GA and the SC refer to Portugal as
limit proviso was made by the US freely and by its own choice. the administering Power of ET that they intended to establish an
 Furthermore, the notion of reciprocity is concerned with the scope and obligation on 3rd states to treat exclusively with Portugal as regards the
substance of commitments (including reservations) and not with the continental shelf of ET.
formal conditions of their creation, duration or extinction. Reciprocity
cannot be invoked to excuse departure from the terms of the State’s  Provisional Measures
own declaration.  Art. 41:
 Nicaragua can invoke the 6 months notice not on the basis of  ICJ has the power to indicate any provisional measures which ought to
reciprocity but because it is an undertaking which is an integral part of be taken to preserve the respective rights of either party
the instrument that contains it.  Pending final decision, notice of the measures suggested shall be given
to the parties and the SC.
Case concerning East Timor (Portugal vs. Australia, ICJ 1995)
I. Facts: Nicaragua vs. US
 Portugal initiated proceedings against Australia for the latter’s ―failure I. Facts:
to observe the obligation to respect the duties and powers of Portugal  Court finds it necessary to indicate provisional measures under Art. 41
as the administering power of East Timor and the right of the people of to preserve the rights claimed. Such decision in no way prejudges the
ET to self determination and related rights‖ pertaining to the Treaty of question of jurisdiction to deal with the merits of the case.
1989 for the creation of a zone of cooperation in the area between  Such measures include:
East Timor and Northern Australia. a. US should cease and refrain from any action restricting, blocking
 As basis for jurisdiction, it referred to the declarations of both states or endangering access from or to Nicaraguan ports, and in
under the optional system. particular, laying mines.
 Australia contends that the real dispute is between Portugal and b. The right to sovereignty and political independence of Nicaragua.
Indonesia and that the latter has not signed the optional clause. States should refrain from using force or threat of force against its
 The Court ruled that w/n Portugal has rightly formulated territorial integrity or political independence. States should not
complaints against Australia, the fact that the latter denied the intervene in matter within the domestic jurisdiction of a State.
same created a legal dispute. c. The governments of US and Nicaragua should ensure that no action
 Australia contends that the effect of Portugal’s application would is made to aggravate or extend the dispute.
require the Court to determine the rights and obligations of Indonesia d. Both Governments should ensure that no action is taken which
to settle the validity of the treaty between Australia and Indonesia. might prejudice the rights of the other party in respect to the
 Portugal insists that the dispute is exclusively based on the objective carrying out of whatever decision the Court may render.
conduct of Australia when the latter negotiated, concluded and e. Until final judgment, the Court will keep matters covered by this
initiated performance of its treaty with Indonesia. order continuously under review.
II. Held:
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f. Written proceedings shall first be addressed to the question of  Intervention

jurisdiction of the Court.  Art. 62:
 If a State has an interest of a legal nature which may be affected by
Case concerning legality of use of force (Yugoslavia vs. US, ICJ, 1999) the decision in the case, it may submit a request to the Court to be
I. Facts: permitted to intervene, which the Court shall decide at its discretion.
 By request of the Federal Republic of Yugoslavia against the NATO
states (Belgium, Canada, France, Germany, Italy, Netherlands,  Art. 63:
Portugal, Spain, UK, US) in relation to the bombings carried out by NA  Registrar shall inform all parties to a convention regarding cases which
8:00 AM forces. relate to its construction.
 Court recognizes that it can exercise jurisdiction only between states  Every state notified has the right to intervene, but the construction
parties to a dispute who not only have access to the Court but also given by the judgment shall be binding on the intervenor.
have accepted the jurisdiction of the Court, either in general form or
for the individual dispute concerned. El Salvador vs. Honduras (Nicaraguan Intervention, ICJ 1992)
 In requests for provisional measures, the Court need not, before I. Facts:
deciding w/n to indicate them, finally satisfy itself that it has  Nicaragua filed an application to intervene based on Art. 62:
jurisdiction on the merits of the case, yet only if the provisions a. to protect the legal rights of the Republic of Nicaragua in the Gulf
invoked by the applicant appear, prima facie, to afford a basis on the of Fonseca and the adjacent maritime areas by all legal means
the jurisdiction of the Court might be established. available
 Yugoslavia claims ICJ jurisdiction based on Art. IX of the Genocide b. to inform the Court of its legal rights which are in issue in the
Convention to which both parties are signatories. dispute
 US contends that it made a clear and unambiguous reservation that  The Court points out that there must be a legal interest that may be
―with reference to Art. IX, specific consent of the US is required in affected. Further, Rules of Court require a statement of the ―precise
each case.‖ object of intervention.‖ Court finds that the subject of intervention is
 Further, (a) reservations in the Genocide Convention are generally proper.
permitted; (b) the reservation is not contrary to its object and  El Salvador contends that for intervention to be proper, Nicaragua
purpose; (c) absence of Yugoslavia’s objection to the reservation must also show a ―valid like of jurisdiction‖ between Nicaragua and
means acceptance. the Parties.
 US adds that there no legally sufficient basis between the charges  Nicaragua however bases jurisdiction only upon the ICJ Statute and
against the US and the supposed jurisdictional basis under the GC. states that Art. 62 does not require a separate title of jurisdiction.
II. Held: II. Held:
 Court accepts US’ contentions and finds that it does not have  The Court’s decision’s binding power rests upon the agreement of both
jurisdiction to entertain the dispute between Yugoslavia and the US parties to the case to confer jurisdiction upon the Court. Normally,
alleged to fall under the provisions of the GC, and that Article therefore, no other State may involve itself in the proceedings without
manifestly does not constitute a basis of jurisdiction in the present the consent of the original parties.
case, even prima facie.  However, procedures for a 3rd state to intervened are provided in Art.
 Even under Art. 38, par. 5 of the Rules of Court which allows the 62 and 63 of the Court’s Statute. The Court’s competence in this
jurisdiction of the Court to be founded upon the consent thereto yet to matter is not derived from the consent of the parties to the case, but
be manifested or given by the other party, the fact that US has not the the consent given by them, in becoming parties to the Court’s
made such consent does not create a prima facie jurisdiction allowing statute. Thus, the Court has competence to permit intervention
the Court to indicate any provisional measure. (subject only to the requirements of object and purpose) even if both
 There is a fundamental distinction between the question of acceptance parties oppose.
by a State of the Court’s jurisdiction and the compatibility of  A state allowed to intervene does not become a party to the case. It is
particular acts with international law. not allowed to tack on a new case nor have its own claims adjudicated
 W/N States accept jurisdiction, they remain responsible for acts by the Court.
attributable to them that violate IL, including humanitarian law.  It does not acquire the rights or become subject to the obligations,
Disputes relating to the legality of such acts MUST be resolved by which attach to the status of a party. It has the right to be heard by
peaceful means chosen by the parties. the Chamber, but limited to the scope of its legal interests.

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 Obligation to comply with decisions  Art. 66:

 Art. 59:  Registrar shall:
 No binding force except as between the parties and in respect to that a. give notice of the request to all state entitled to appear before
particular case the Court
b. via special and direct communication, notify any state entitled to
 Art. 60: appear or international organization likely to furnish information
 Final without appeal. In the event of dispute as to (a) meaning or (b) on the question, within a time limit fixed by the President, that
scope of the judgment, the Court shall construe it upon request of any the Court will be prepared to receive written statements OR hear
party. at a public sitting oral statements relating to the question
 If an entitled state fails to receive notification, it may express a desire
 Art. 61: to submit a written statement or to be heard, and the court will
 Application for Revision of a judgment may be made only when based decide.
upon newly discovered fact, which must be: (a) a decisive fact; (b) at  Parties which presented shall be permitted to comment on statements
the time judgment was given, was unknown to the Court and to the made by others.
party; (c) such ignorance was not due to negligence.
 The Court must first decide whether the fact is of such character as to
lay the case open to revision, and declaring the application admissible. CHAPTER 14
 The Court may require previous compliance with the terms of THE USE OF FORCE SHORT OF WAR
judgment before it admits proceedings in revision.
 Application must be made within 6 months from discovery and within Use of Force
10 years from date of judgment.  General Principle: International law recognizes the
a. Autonomy of individual states
 Art. 94 of UN Charter: b. Their right to freedom from coercion and to the integrity of their
 If any party fails to perform any obligation under ICJ judgment, the territory
other party may have recourse to the SC, which may make Art. 2(4) of the UN Charter:
recommendations OR decide upon measures to be taken to give to the
All Members shall refrain in their international relations from the threat or use of force
judgment.
against the territorial integrity or political independence of any state, or in any other
 Such enforcement measures are subject to veto powers of the manner inconsistent with the Purposes of the United Nations.
permanent members.
 Winning state may make uses of alternative methods of enforcement,  The above text does not use the word ―war‖ because it is a technical term
such as economic or diplomatic pressure. which does not include some uses of force
o Hence, the prohibition is broader than the prohibition of war noting
that it applies to ―any other matter inconsistent with the Purposes of
2. Advisory the United Nations‖
 non-binding Corfu Channel
 non/acceptance depends on internal law of the institution
Facts:
After a British warship had been struck by mines, Britain sent additional warships to
 Art. 96 UN Charter: sweep the minefields within Albanian territory arguing the theory of intervention where
 SC and GA may make requests for advisory opinion. GA may also its objective was to secure the mines for possible fear that they should be taken away,
authorize other UN agencies to seek advisory opinion on legal questions and the theory of self-help.
arising within the scope of their activities.
Held:
The Court cannot accept these lines of defense. It can only regard the alleged right of
 Art. 65: intervention as the manifestation of policy of force which cannot find a place in
 Advisory jurisdiction in accordance with the UN Charter international law.
 On any legal matter at the request of any body authorized to do so.
The Court is also unable to accept the theory of self help as between independent States,
 Through written requests containing (a) the exact statement of the the respect for territorial sovereignty is an essential foundation for international
question and (b) all documents likely to throw light upon the question. relations.

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Nicaragua v. US
 The prohibition of the use of force is customary international law
The general rule prohibiting force established in customary law allows for certain
exceptions. The exception of the right of individual or collective self-defense is also
Nicaragua v. US established in customary law, which Art. 51 refers to an ―inherent right‖.
Consent to such resolutions is one of the forms of expression of an opinio juris with regard The Parties agree in holding that whether the response to an attack is lawful depends on
to the principle of non-use of force, regarded as a principle of customary international the observance of the criteria of necessity and the proportionality of the measures taken
law, independently of the provisions, especially those of an institutional kind, to which it in self-defense.
is subject on the treaty-law plane of the Charter
Whether self-defense be individual or collective, it can only be exercised in response to
an ―armed attack.‖ The Court does not believe that the concept of ―armed attack‖
Threat of Force
includes assistance to rebels. Furthermore, the Court finds that in customary international
 Charter prohibits not just use of force but also the threat of force law, there is no ruling permitting the exercise of collective self-defense in the absence of
 Typical form of threat of force: a request by the State which is a victim of the alleged attack, this being additional to the
o A State is given an ultimatum, a time-limit, within which to accept the requirement that the State should have declared itself to have been attacked.
demands made upon it and is told that, if it rejects the demands, war
will be declared on it or certain coercive measures will be taken Is anticipatory self-defense allowed?
 Examples of coercive measures:  2 views:
a. Naval blockade 1. States do not invoke the right because they are afraid that it might be
b. Bombardment used against them too
c. Occupation of a given territory 2. Israel launched a preemptive strike against its Arab neighbors but the
UN did not condemn the act
Legality of the Threat or Use of Nuclear Weapons  In the case of the Gulf War against Iraq, the Allied forces came on
invitation of Kuwait which was under invasion
The Charter recognizes the inherent right of individual or collective self-defense if an
 The right to use force to defend claimed territory was rejected in the
armed attack occurs. The entitlement to resort to self-defense is subject to the conditions
of necessity and proportionality. Falkland War
A further lawful use of force is envisage whereby the Security Council may take military Traditionally Allowable Coercive Measures
enforcement measures in conformity of the Charter. 1. Severance of Diplomatic Relations
o Reason: there is no obligation to maintain diplomatic relations
These apply to any use of force, regardless of the weapons employed.
o Limitation: not be resorted unless truly necessary because it might
endanger peace
o Suspension involves withdrawal of diplomatic representation but
Individual and Collective Self-Defense not of consular representation
 Exception to the prohibition of the use of force
2. Retorsion
Article 51 o Any forms of counter-measures in response to an unfriendly act
o Includes:
Measures taken by Members in the exercise of this right of self-defense shall be a. Shutting of ports to vessels of an unfriendly State
immediately reported to the Security Council and shall not in any way affect the authority b. Revocation of tariff concessions not guaranteed by treaty
and the responsibility of the Security Council to take at any time such action as it deems c. Display of naval forces near the waters of an unfriendly State
necessary in order to maintain or restore international peace and security.
3. Reprisal
o Any kind of forcible or coercive measures where by one State seeks
to exercise a deterrent effect or obtain redress or satisfaction,
directly or indirectly, for the consequences of illegal act of
another State which has refused to make amends for such illegal
acts
o This must be preceded by an unsatisfied demand for reparation

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NATO, The UN and the Use of Force: Legal Aspects

4. Embargo Bruno Simma
o A lawful measure
o Consists of: Certain points on Humanitarian Intervention
a. Seizure of vessels even in the high seas a. If the Security determines that massive violations of human rights occurring
within a country constitute a threat to the peace, and then calls for or
b. State keeps its own vessels for fear that it might find their authorizes an enforcement action to put an end to these violations, a
way in foreign territory  pacific embargo humanitarian intervention by means of military is permissible
c. Seizure of import of drugs or of oil  collective embargo b. When humanitarian crises do not transcend borders and lead to armed attacks
against other States, recourse to Art. 51 is not available
5. Boycott
Reasons for the majority legal opinion against the existence of a right of Humanitarian
o A form of reprisal which consists of suspension of trade or business Intervention:
relations with the nationals of an offending State 1. UN Charter and the corpus of modern international law do not seem to
specifically incorporate such right
6. Non-intercourse 2. State practice provides only a handful of genuine cases of humanitarian
o Suspension of all commercial intercourse with a State intervention
3. Scope for abusing such a right argues strongly against its creation
7. Pacific Blockade Whether we regard the NATO threat employed in the Kosovo crisis as an ersatz
o Naval operation carried out in time of peace whereby a State humanitarian intervention, or as a threat of collective counter-measures involving armed
prevents access to or exit from particular ports or portions of coast force, any attempt at legal justification will ultimately remain unsatisfactory
of another State
o Purpose: compel a State to yield to demands by the blockading
 Under certain strict conditions, resort to armed force may gradually
State
become justified, even absent any authorization by the Security Council
Protection of Nationals Abroad Ex Injuria Oritur Jus

Antonio Cassese
 Right to defend nationals abroad is an aspect of the right to self-defense
since population is an essential element of Statehood Conditions:
 Examples of forcible rescue of nationals 1. Gross and egregious breaches of human rights involving loss of life of hundreds
a. Raid of Entebee in Uganda or thousands of innocent people, and amounting to crimes against humanity
b. US intrusion into Stanleyville to rescue American students 2. Such crimes against humanity result from anarchy in a sovereign State, proof is
necessary that the central authorities are utterly unable to put an end to those
crimes while at the same time refusing to call upon or to allow other States or
international organization to enter the territory to assist in terminating the
Humanitarian Intervention crimes
 The prohibition in Art. 2(4) is now considered jus cogens 3. Security Council is unable to take any coercive action to stop it because of
disagreement among the Permanent Members or because one or more of them
 Prevailing opinion: intervention without the authorization of the Security
exercises its veto power
Council violates international law 4. All peaceful avenues have been exhausted, notwithstanding which, no solution
can be agreed upon by the parties to the conflict
5. A group of States decides to try to halt the atrocities, with the support or at
least the non-opposition of the majority of Member State of UN
6. Armed force is exclusively used for the limited purpose of stopping the
atrocities and restoring respect for human rights
7. Use of force must be commensurate with and proportionate to the human rights
exigencies on the ground

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CHAPTER 15 CUSTOMARY and CONVENTIONAL LAW

THE LAW OF WAR  What is embodied in Hague and Geneva Conventions are customary law
o Thus, non-parties are still covered
INTERNATIONAL HUMANITARIAN LAW
 Previously known as Laws of War
a. Provides for instances when the use of armed force is justifiable – jus ad Commencement and Termination of Hostilities
bellum  Under Hague Convention III, for an armed conflict to be considered a war,
b. Regulates the conduct of armed conflict – jus in bello the hostilities should be preceded by a declaration of war or an ultimatum
 Early international law did not consider as illegal a war admittedly waged with a fixed limit
for the purpose of gaining political or other advantages over another State  While the Constitution gives to the legislature the power to declare the
Art. 2(4) of the UN Charter: existence of a state of war and to enact all measures to support the war,
the actual power to make war is lodge in the executive
All Members shall refrain in their international relations from the threat or use  The commencement of hostilities result in the severance of all normal
of force against the territorial integrity or political independence of any State, relations, including treaties, except treaties of a humanitarian character
or in any other manner inconsistent with the Purposes of the United Nations.  Nationals of a combatant State residing in enemy territory become subject
to restrictions which the enemy might impose subject to limitations found
 The above provisions outlaws war in customary or treaty law
 The paradox is that side by side with the prohibition of armed conflict is  Merchant vessels found in enemy territory are given a period of grace to
the proliferation of laws of war depart
o 3 facts which explain the paradox:  Laws of armed conflict remain in effect until the conflict is terminated, by
a. Those who resort to the use of arms do not give up until they have means of a
achieved victory a. peace treaty
b. Humanitarian considerations dictate the need for rules which curtail b. in the absence thereof, by declaration made by the combatant states
violence beyond what is necessary to achieve a State’s goal that hostilities have come to an end
c. There still remains in the hearts of the soldiery an acceptance of  Armistice – an agreement to suspend hostilities, whether local or general,
chivalry as a value does not end the conflict but only puts an end to the active fighting
 On the assumption that wars can always occur, there arose the need to
formulate laws that can humanize the conduct of war
Protocol I
 International armed conflict includes armed conflicts in which peoples are
THE HAGUE LAW fighting against
 In 1899, 26 Countries met at The Hague and promulgated Conventions and a. Colonial denomination
Declaration which adopted the principles constituting the law of armed b. Alien occupation
conflict, Law of the Hague, governing land and naval warfare c. Racist regimes
 Those engaged in such conflict receive combatant status and are entitled
to combatant rights
o Instead being treated as ordinary criminals when captured, they are
GENEVA CONVENTIONS OF 1949 treated as prisoners of war
 Essence: persons not actively engaged in warfare should be treated
humanely
o Geneva ―Red Cross‖ Conventions METHODS OF WARFARE: JUS IN BELLO
a. Wounded and Sick in the Field  Declaration of St. Petersburg:
b. Wounded, Sick and Shipwrecked at Sea o The only legitimate object which States should endeavor to accomplish
c. Prisoners of War during war is to weaken the military forces of this enemy
d. Civilians o This object would be exceeded by the employment of arms which
uselessly aggravate the sufferings of disabled men, or render their death
inevitable

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 The Hague Convention prohibits the employment of ―arms, projectiles or  Outside help for governments experiencing rebellion is legitimate provided
material calculated to cause unnecessary suffering‖ requested by the government
 There is a need to balance military necessity and humanitarian  Aid to rebels is contrary to international law
consideration
Legality of the Threat or Use of Nuclear Weapons (ICJ 1996) Common Article 3
Cardinal Principles constituting the Fabric of Humanitarian Law:  In case of armed conflict not of an international character, persons should
1. States must never make civilians the object of attack and must still be accorded a minimum humanitarian protection
consequently never use weapons that are incapable of distinguishing  Prohibited acts:
between civilian and military targets a. Violence like murder of all kinds, mutilation, cruel treatment and
2. It is prohibited to cause unnecessary suffering to combatants torture
b. Taking of hostages
c. Outrages on human dignity
INTERNATIONAL COMMISSION ON RED CROSS d. Passing of sentences and carrying out of executions without previous
Basic Rules Governing Armed Conflicts: judgment pronounced by a regular court
1. Soldier’s Rules  International Committee of the Red Cross – an impartial humanitarian body
a. Fight only enemy combatants and attack only military
objectives
b. Prisoners of war must be treated humanely and are bound to Protocol II
give only information about their identity  The first and only international agreement exclusively regulating the
c. Looting is prohibited. Respect other’s property. conduct of parties in a non-international armed conflict
2. Fundamental Rules of International Humanitarian Law Applicable to  International armed conflict – that which takes place in the territory of a
Armed Conflicts Contracting Party between its armed forces and dissident armed forces or
a. Persons hors de combat and those who do not take a direct other organized armed groups which
part in hostilities are entitled to respect for their lives and  Material Field of Application:
moral and physical integrity a. Armed dissidents must be under responsible command
b. It is forbidden to kill or injure an enemy who surrenders or is b. They must ―exercise such control over a part of its territory as to
hors de combat enable them to carry out sustained and concerted military operations
3. Non-International Armed Conflicts and to implement this Protocol
a. Obligation to distinguish between combatants and civilians
b. Prohibition of attacks against the civilian population as such or
against individual citizens INTERNATIONAL TERRORISM
c. Customary rule prohibiting the use of chemical weapons,  There is no crime terrorism in Philippines statute books but some acts are
bullets which expand or flatten easily in the human body, considered terroristic and are independently punished by the RPC
poison as means of warfare, and booby-traps
 Terrorism Act (British Law) – violent moves against person or property or
against public health and safety which have for their purpose to influence
NEUTRALITY
the government or to intimidate a section of the public or to advance a
 To adopt an attitude of impartiality towards the belligerents political, religious or ideological cause
 Such attitude must be recognized by belligerents and creates both rights  Draft of an International Convention for the Suppression of the Financing of
and duties in the neutral states Terrorism:
 Neutrals must not engage in activities which interfere with the activities of o Any person commits an offense of terrorism if he does an act intended to
the belligerents cause:
a. Death or serious bodily injury to any person
b. Serious damage to a State or Government Facility with the intent to
NON-INTERNATIONAL CONFLICTS cause extensive destruction
 Civil wars or rebellion do not violate international law  Attack on WTC on 9-11 was characterized as Crime against Humanity
 International law on armed conflict does not apply to internal conflicts through the atrocious character exhibited by the act: its magnitude,
gravity, targeting of civilians
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o The importance of this characterization is that it led to what seems to be  Resources should be made available to preserve and improve the
a development in the international law of self-defense environment
 Self-defense – legitimate response to an armed attack by a State  Rational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve
the environment
CHAPTER 16  International matters concerning the protection and improvement of the
INTERNATIONAL ENVIRONMENTAL LAW environment should be handled in a cooperative spirit by all countries on
an equal footing
ENVIRONMENTAL CONCERNS  Man and his environment must be spared the effects of nuclear weapons
and all other means of mass destructions
Sec. 16, Art. 2 of the Constitution. The State shall protect and advance
the right of the people to a balanced and healthful ecology in accord with 2. Rio Declaration
the rhythm and harmony of nature.  Human beings are at the center of concerns for sustainable development
 States have the sovereign right to exploit their own resources
 The protection of the environment is now also a concern of international  In order to achieve sustainable development, environmental protection
law shall constitute an integral part of the development process and cannot be
a. Protection of the atmosphere, the sea, land, flora and fauna considered in isolation from it
b. Preservation of the cultural heritage of mankind  The special situation and needs of developing countries shall be given
 The protection of the environment is a vital part of contemporary human special priority
rights doctrine, for it is a sine qua non for numerous human rights such as  Environmental issues are best handled with the participation of all
the right to health, and the right to life itself concerned citizens, at the relevant level
 States shall develop national law regarding liability and compensation for
WHO HAVE ENVIRONMENTAL RIGHTS? the victims of pollution and other environmental damage
 Persons capable of having rights  States shall immediately notify other States of any natural disasters or
 Minors pleading for intergenerational protection (Factoran case) other emergencies that are likely to produce sudden harmful effects on the
environment of those States
SUSTAINABLE DEVELOPMENT  Warfare is inherently destructive of sustainable development
 A concept adopted by the World Commission on Environment and
Development Some Treaties
 This encourages development in a manner and according to methods which a. Vienna Convention for the Protection of the Ozone Layer – the layer of
do not compromise the ability of future generation and other States to the atmospheric ozone above the planetary boundary layer
meet their needs b. UN Conference on Environment and Development – stabilization of
greenhouse gas concentration in the atmosphere at a level that would
EMERGING PRINCIPLES prevent dangerous anthropogenic interference with the climate system
 The following are only declarations, they do not have the force of law c. Kyoto Protocol – protection of the atmosphere
1. Stockholm Declaration d. Convention on International Trade in Endangered Species of Wild Fauna
 Man has fundamental right to freedom, equality and adequate conditions and Flora
of life, in an environment of a quality that permits a life of dignity and e. Convention on Biological Diversity
well-being, and he bears a solemn responsibility to protect and improve
the environment for present and future generations Regional Treaties
 Natural resources of the earth, including the air, water, land, flora and a. Treaty of Rome
fauna and especially representative samples of natural ecosystems, must b. North American Agreement on Environmental Cooperation
be safeguarded c. Protocol on Environmental Protection to the Antarctic Treaty
 Man has a special responsibility to safeguard and wisely manage the d. Amazon Declaration
heritage of wildlife and its habitat
 The struggle of the peoples of ill countries against pollution should be
supported
 States shall take all possible steps to prevent pollution of the seas
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CHAPTER 17 3. Principle of National Treatment

INTERNATIONAL ECONOMIC LAW o Prohibits discrimination between domestic producers and foreign
producers
What is International Economic Law? o Once foreign producers have paid the proper border charges, no
 In its broadest sense includes all international law and international additional burdens may be imposed on foreign products
agreements governing economic transactions that cross state boundaries or 4. Principle of Tariffication
that otherwise have implications for more than one state o Prohibits the use of quotas on imports or exports and the use of
o Those involving the movement of licenses on importation or exportation
a. Goods e. Technology o Purpose: to prevent the imposition of non-tariff barriers
b. Funds f. Vessels o Exception:
c. Persons g. Aircraft  GATT provides for a quantitative and temporary basis for
d. Intangibles balance of payments or infant industry reasons in favor of
 Characteristics: developing states
1. It is part of public international law
o Treaties alone make this so Exceptions to Key Principles
2. It is intertwined with municipal law 1. General exceptions
3. It requires multi-disciplinary thinking a. Public morals
4. Empirical research is very important for understanding its operation b. Public health
c. Currency protection
Important Economic Institutions d. Products of prison labor
 Objectives of the Bretton Woods Conference of 1944: e. National treasures of historic, artistic or archaeological value
1. To advance the reduction of tariffs and other trade barriers f. Protection of exhaustible natural resources
2. To create a global framework designed to minimize economic conflicts 2. Security exceptions
 International Monetary Fund 3. Regional Trade exceptions
o Function: to provide short-term financing to countries in balance of 4. Exceptions for developing nations [Tanada v. Angara]
payments difficulties
 International Bank for Reconstruction and Development [World Bank] Dispute Resolution Body
o Provide long-term capital to support growth and development  Established by the WTO agreement
 International Trade Organization (ITO)  Consists of General Council of the WTO
o Promote a liberal trading system by proscribing certain protectionist  Operates under the Understanding on Rules and Procedures Governing the
trade rules Settlement of Disputes 1994
o ITO  General Agreement on Tariff and Trade (GATT)  World Trade a. Each State has a right to establish a Panel
Organization (WTO) b. It provided for a permanent Appellate Body consisting of persons with
 WTO recognized expertise in law
o Oversees the operation of GATT and a new General Agreement on
Trade and Services Expanding Scope of International Economic Law
 Uruguay Round of 1994 expanded the scope of the multilateral trade
Key Principles of International Trade Law regime
1. Agreed Tariff Levels  It includes:
o GATT contains specified tariff levels for each State a. Intellectual property
o However, these can be re-negotiated b. Services
2. Most Favored Nation Principle c. Sanitary and physiosanitary measures
o Embodies the principle of non-discrimination d. Investment
o Any special treatment given to a product from one trading partner e. Strengthening of the rules on subsidies, countervailing duties and ati-
must be available for like products originating from or destined for dumping
other contracting partners  International Economic Law affects the sovereignty of States and their
o Tariff concessions capacity to give force to national policy objectives


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PIL Reviewer Bernas

International Relations (Ateneo de Davao University)

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Scope of International Law

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Equity Functions of Treaties

b. Teleological approach—interpretation according to the telos or Succession to Treaties

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CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW  Principle of Self-determination—sovereignty as an element of a state

Recognition of States—the act of acknowledging the capacity of an entity to

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The United Nations: Structure and Powers

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Archipelagic Waters The Continental (Archipelagic) Shelf – refers to the

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Hot Pursuit Effects Doctrine

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CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction

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terminating the agreement was committed in relation to their official - Exceptions:

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Alfred Dunhill of London, Inc. v. Cuba

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b. Unlawful expropriation of property

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2. Acts of other Persons SHORT v. IRAN

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REPARATION EXPROPRIATION OF ALIEN PROPERTY

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Classifications of peaceful means of settlement:  Arbitral decisions

 Art. 4:  3 ways to accept ICJ’s jurisdiction:

f. Written proceedings shall first be addressed to the question of  Intervention

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 Obligation to comply with decisions  Art. 66:

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NATO, The UN and the Use of Force: Legal Aspects

Protection of Nationals Abroad Ex Injuria Oritur Jus

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CHAPTER 15 CUSTOMARY and CONVENTIONAL LAW

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CHAPTER 17 3. Principle of National Treatment

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