• There is a well-developed customary law for the protection of aliens.
The instrument is
ASSIGNMENT SHEET 6
STATE RESPONSIBILITY (c/o Toledo)
-Pages 223 to 247 of Bernas-
INTRODUCTION
• In traditional international law, individuals are generally considered “objects” and not
“subjects” of international law. They possess neither international legal rights which
they could assert on their own.
• Whatever wrongs may be committed against them can be redressed only by states or
organizations with international personality.
• Hence, individuals can be objects of state v. state litigation.
1. Protection and Treatment of Aliens (Page 223 of Bernas)
• No state is obliged to admit aliens into its territory, unless there is a treaty requiring it.
This principle is an aspect of sovereignty.
• However, it is difficult to deny admission to all. Hence, what states generally do is to
impose legal standards for admission.
• Once admitted, at least under democratic regimes, aliens may not be expelled without
due process.
• From the perspective of the state of their nationality, aliens are “nationals abroad”.
Therefore, they remain important for the state of their nationality.
• The practice of the proper treatment of aliens is based on this “commonality of
interest”.
• States protect aliens within their jurisdiction in the expectation that their own nationals
will be properly treated when residing or sojourning abroad.
• Mistreatment of aliens is a common cause of international responsibility.
e.g. mistreatment by judicial or police authorities, unlawful expropriation of
property, failure to prosecute those who attack foreign nationals, or “Denial
of Justice/Due Process of Law”
used for the protection of aliens is “diplomatic protection” The theory is that, injury to
a national abroad is injury to the individual’s state of nationality.
1.1 Standard for the Protection of Aliens
• Two standards have emerged in modern times to compete for recognition as
the acceptable standard:
1. “National Treatment” or “Equality of Treatment”
• Aliens are treated in the same manner as the nationals of the state where
they reside.
• Aliens enjoy the same benefits as local nationals.
2. “Minimum International Standard”
• However harsh the municipal laws might be against a state’s own
citizens, aliens should be protected by certain minimum standards of
humane protection.
Denial of Justice - according to Harvard Draft Convention on the
Responsibility of States for Damages:
“Denial of justice exists when there is:
1. a denial
2. unwarranted delay or obstruction of access to courts
3. gross deficiency in the administration of judicial or
remedial process, 4. failure to provide those guarantees
which are generally considered indispensable to the
proper administration of justice, or a manifestly unjust
judgment
4. An error of a national court which does not produce
manifest injustice is not denial of justice.”
2. Exclusion of Aliens
• The state may also avoid liability to aliens by refusing their admission, but this is not
regarded as sound policy since it would provoke retaliation in kind and ultimately
isolate its nationals from the rest of the international community.
• Deportation refers to the removal of an alien out of the country, simply because his
presence is deemed inconsistent with the public welfare and without any punishment
 being imposed or contemplated, either under the laws of the country out of which he
is sent, or under those of the country to which he is taken.
• Exclusion refers to the denial of entry to an alien
3. International Standard of Justice - Cruz
• Doctrine of Equality of Treatment
4. Exhaustion of Local Remedies - Cruz
• Basis of Extradition:
1. The extradition of a person is required only if there is a treaty between the state
of refuge and the state of origin.
2. In the absence of a treaty – local state has every right to grant asylum to the
fugitive and to refuse to deliver him back to the latter state even, if he is a national.
• Fundamental Principles of Extradition:
1. Extradition is based on the consent of the state of asylum.
2. Principle of specialty – a fugitive who is extradited may be tried only for the
crime specified in the request for extradition and included in the list of
offenses in the extradition treaty.
3. Any person may be extradited.
4. Political and religious offenders are generally not subject to extradition
5. In the absence of a special agreement, the offense must have been
committed within the territory or against the interests of the demanding state.
6. Rule of double criminality - the act for which the extradition is sought must
be punishable in both the requesting and requested states.
• Refers to the standard of the reasonable state, that is, as referring to the ordinary
norms of official conduct observed in civilized jurisdictions.
• where the laws of state fall below the international standard of justice, it is
no defense that they are applicable not only to aliens but as well, and
equally, to the nationals of that state.
• The relations of that state with its own nationals are purely municipal;
international law is involved in its relations with the nationals of other states.
• The liability of the state for an international delinquency, its enforcement cannot
be claimed by the injured foreigner unless, he first exhausts all available local
remedies for the protection or vindication of his rights
• A state must be given an opportunity to do justice in its own regular way and
without unwarranted interference with its sovereignty by other states.
• This requirement may be dispensed with. However, if there are:
1. No remedies to exhaust, as where the laws are intrinsically
defective or there is laxity or arbitrariness in their enforcement; or
2. Where the courts are corrupt or where there is no adequate
machinery for the administration of justice, there would be NO
REMEDY AVAILABLE FROM “ACTS OF STATE” which are not subject
to judicial review.
5. Resort to Diplomatic Protection - Cruz
• If the injured foreigner has exhausted all the local remedies but without success, he
may then avail himself of the assistance of his states – but only if he has a state.
Otherwise, he will have no party to represent him, and he by himself, being a mere
individual, cannot institute his claim in his own name
• Any injury to an alien is a violation not of his own personal right but of the right of
his state to have its nationals protected but of the right of his state to have its
nationals protected whenever they are in a foreign country
• Where the injured alien is stateless, his case will be one of “Damnum Absque
Injuria” and cannot be subject of diplomatic protection.
• Damnum Absque Injuria means that “the injured person alone bears the
consequences because the law affords no remedy for damages resulting from an
act that does not amount to a legal injury or wrong.”
e.g.
• Tie of Nationality – required to exist from the time of the injury until the time the
international claim is finally settled. Once the tie is broken, the claim itself is deemed
automatically abated (removed/lessened).
If, the injured national dies while the claim is under consideration and it should
happen that his hers are not nationals of the claimant state, the claim will lapse.
6. Enforcement of Claim (Enforcement Regimes) - Cruz
• An international claim for damages may be resolved through negotiation or, if this
fails, any of the other methods of settling disputes
• In the event that the responsibility of the state is established or acknowledged, the
duty to make reparations will arise.
• Such reparation may take the forms of:
1. Restitution
2. Satisfaction
3. Compensation
6. Enforcement of Claim (Enforcement Regimes) - Page 227 of Bernas
• The International Court of Justice (ICJ), when its jurisdiction is appealed to by states
in conflict, can resolve issues of violations of the rights of aliens.
• However, claims may be also settled by ad hoc tribunals established for purpose.
e.g. 1. US-Iran Claims Tribunal (established to deal with claims of either
party arising from the Islamic Revolution
2. UN Compensation Commission (established by Security Council in
1991 to deal with claims arising from Iraq’s invasion of Kuwait)
3. US-Cambodia and US-Vietnam Settlement Agreements.
7. Doctrine of State Responsibility - Page 227 of Bernas
• The customary law doctrine on the protection of aliens should be seen in relation to
the doctrine of “State Responsibility” -- wherein, when an injury has been inflicted,
there is need to determine whether the state can be held responsible for it.
• Settled rule held by the states is that, if a state violates a customary rule of international
law, or a treaty obligation, it commits an “internationally wrongful act”
• Principles that widely accepted and what need to be understood are:
1. Elements of an internationally wrongful act;
2. The attributality of the wrongful act to the State;
3. The enforcement of the obligation that arises from the wrongful act.
Guide is the 2001 Draft of the International Law Commission.
8. Internationally Wrongful Act - Page 227 of Bernas
Article 1. Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international
responsibility of that State.
Note: No State can escape this responsibility when once it has committed
an act which satisfies the requirements of an “internationally wrongful act”
 State derives its benefits from the international legal system. Hence, when
a state consents to be part of that system, it also accepts corresponding
legal obligations.
Article 2. Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting of
an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
Note: Article 2 says that the elements of an internationally wrongful act
consists of a subjective and objective element.
Subjective element Objective element
-the act must be attributable not to - is a violation of an international
the persons or agencies who obligation.
performed it but to the state itself.
- It may consist of something either:
1. active (action)
2. passive (an omission)
Article 3. Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterization is not affected by
the characterization of the same act as lawful by internal law.
Article 12. Existence of a breach of an international obligation
There is a breach of an international obligation by a State when an act
of that State is not in conformity with what is required of it by that
obligation, regardless of its origin or character.
Note: Articles 3 and 12 says that what determines the wrongful
character of the act is the international law, not the internal law.
The international law violated can be customary or conventional.
9. Attribution to the State - Page 228 of Bernas
• The acts which can be attributed to the state may be:
1. Acts of state organs
2. Acts of other persons
3. Acts of revolutionaries.
1. Acts of the state organs
Article 4. Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State
under international law, whether the organ exercises legislative, executive,
judicial or any other functions, whatever position it holds in the
organization of the State, and whatever its character as an organ of the
central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in
accordance with the internal law of the State.
Article 5. Conduct of persons or entities exercising elements of governmental
authority
The conduct of a person or entity which is not an organ of the State under
Article 4 but which is empowered by the law of that State to exercise
elements of the governmental authority shall be considered an act of the
State under international law, provided the person or entity is acting in that
capacity in the particular instance.
Article 6. Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State
shall be considered an act of the former State under international law if
the organ is acting in the exercise of elements of the governmental
authority of the State at whose disposal it is placed.
Article 7. Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered
to exercise elements of the governmental authority shall be considered
an act of the State under international law if the organ, person or entity
acts in that capacity, even if it exceeds its authority or contravenes
instructions.
 Article 8. Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of
a State under international law if the person or group of persons is in fact
acting on the instructions of, or under the direction or control of, that State
in carrying out the conduct.
Article 9. Conduct carried out in the absence or default of the official authorities
The conduct of a person or group of persons shall be considered an act of
a State under international law if the person or group of persons is in fact
exercising elements of the governmental authority in the absence or
default of the official authorities and in circumstances such as to call for the
exercise of those elements of authority.
9.1 [X] Claire Claim - Page 230 of Bernas
9.2 Corfu Channel Case - Page 232 of Bernas
9.3 Nicaragua v. US - Page 235 of Bernas
2. Acts of other persons
10. Preliminary Objections - Page 244 of Bernas
Article 7. Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered to
exercise elements of the governmental authority shall be considered an act
of the State under international law if the organ, person or entity acts in that
capacity, even if it exceeds its authority or contravenes instructions.
Article 8. Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of
a State under international law if the person or group of persons is in fact
acting on the instructions of, or under the direction or control of, that State
in carrying out the conduct.
9.4 United States v. Iran - Page 239 of Bernas
3. Acts of revolutionaries
Article 10 Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement which becomes the new
Government of a State shall be considered an act of that State under
international law.
2. The conduct of a movement, insurrectional or other, which succeeds in
establishing a new State in part of the territory of a pre-existing State or in
a territory under its administration shall be considered an act of the new
State under international law.
3. This article is without prejudice to the attribution to a State of any
conduct, however related to that of the movement concerned, which is to
be considered an act of that State by virtue of articles 4 to 9.
9.5 [X] Home Missionary Society Claim (US v. Great Britain) - Page 242 of Bernas
9.6 Short v. Iran - Page 249 of Bernas
• When brought before an international tribunal, the claim of denial of justice may be
lost due to the following:
1. Failure to answer some preliminary objections.
-one objection already seen is the lack of nationality link.
2. Failure to exhaust national remedies.
-obvious reason of this rule is to protect international courts from
being swamped with cases which are better handled locally.
-applies only to cases founded on diplomatic protection or injury to
aliens.
-where the case is involving a treaty that touches on state rights, it
should be resolved on the international plan.
 -where a case involves a treaty which establishes a Claims compensation. But international case law on the subject, generally between developed
Commission, it immediately goes to the Commission. and developing countries, is not without disputations.

11. Reparation - Page 244 of Bernas

Article 31. Reparation

1. The responsible State is under an obligation to make full
reparation for the injury caused by the internationally wrongful act.

2. Injury includes any damage, whether material or moral, caused by

the internationally wrongful act of a State.

10.1 [X] Chorzow Factory Case - Page 245 of Bernas

12. Calvo Clause - Page 246 of Bernas

• In the past, there were attempts to limit the ability of a State to give diplomatic
protection to its nationals, an example of this is the “Calvo Clause”

• Calvo Clause” is a provision in a contract to the effect that “under no condition shall
the intervention of foreign diplomatic agents in any matter related to the contract” be
resorted to.

13. Expropriation of Alien Property - Page 247 of Bernas

• Expropriation is the taking of property by the State -- may be tangible or intangible
(valuable contractual rights)

• Expropriation can be an international wrong if it is done contrary to the principles of

international law.

What are these principles?

• 1962 UN General Assembly Resolution on the Sovereignty over Natural
Resources which states:

“Expropriation shall be based on grounds or reasons of public utility, security,

or the national interest, which are recognized as overriding purely individual or
private interests, both domestic and foreign”

• The rule also thus recognizes the power of eminent domain as inherent power of
sovereignty. The rule conforms with the constitutional principles of public use and just
 PEACEFUL OR PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES (c/o Toledo) 1. Non-judicial or diplomatic methods (N-MIC) - Page 268 of Bernas
-Pages 267 to 294 of Bernas-
1.1 Negotiation
INTRODUCTION • States are generally hesitant to submit their disputes to an adjudicatory body.
• Not every disagreement is a “dispute” Hence, negotiation is the preferred vehicle.

• “Dispute” is a technical term which means “a disagreement on a point of law or fact, a • The preliminary step to negotiation might be “good offices” when a neutral third
conflict of legal views or interest between 2 persons.” party tries to bring 2 disputants together.

• A disagreement does not amount to a dispute, if its resolution would have no practical • Having been brought together, the usual first step, often required before judicial
effect on the relationship between the parties. settlement is “negotiation” which may be carried out by:

• Examples of disputes are: 1. diplomatic correspondence

1. Disagreements over the interpretation of a treaty 2. face-to-face dialogue between permanent envoys or
2. Disagreements about state boundaries designated negotiators.
3. Disagreements about state responsibility.
• No particular set of rules for negotiation, but for a negotiated settlement to be
• Not every disagreement is a “dispute” legally binding, the parties shall agree to it.

• Article 2 (3) of the UN Charter provides: 1.2. Mediation

All members shall settle their international disputes by peaceful means in such • Involves assistance by third parties who either act as a bridge between the parties,
a manner that international peace, security, and justice, are not endangered. who do not meet, or who may sit with the disputants to chair meetings, suggest
solutions, cajole, etc.
• Hence,
• The mediator must be approved by both parties.
General Rule: No general obligations to settle disputes.
1.3 Inquiry
Exceptions: Except those which according to Article 33 of the UN Charter, • Is a fact-finding done by a designated group of individuals or an institution.
might endanger peace and security.
• When undertaken with the consent of the parties, it frequently resolves disputes
Note: But if the decision is made to settle disputes, the obligation is to settle based solely on questions of fact.
them by peaceful means.
1.4 Conciliation
• The peaceful means of settling disputes mentioned in the Charter may be classified • Is a more formal technique whereby the parties agree to refer controversies to an
into: individual, a group of individuals, or an institution to make findings of fact and
(a) Non-judicial methods / Diplomatic Methods [negotiations, enquiry, recommendations.
mediation, conciliation]
(b) Quasi-judicial methods [arbitration]
(c) Judicial method
2. Quasi-judicial method - Page 269 of Bernas • Accepted basis/grounds in order for an arbitral decision may be
challenged (ECS2-N):
2.1 Arbitration
• Is the binding settlement of a dispute on the basis of law by a non-permanent 1. The arbitral body exceeded its powers
body designated by the parties.
2. There was corruption on the part of a member of the
• What shall be agreed upon by the parties in a compromis d’ arbitrage? body
1. the composition
2. the jurisdiction 3. There was a failure to state the reasons for the awards
3. rules of procedure to be applied or a serious departure from a fundamental rule of
procedure
• States cannot be required to submit to arbitration, unless there is a previous
agreement making arbitration compulsory. 4. The undertaking to arbitrate or compromis is a nullity.

• What mainly distinguishes arbitration from judicial settlement is that parties • Domestic courts, however, may refuse to give recognition to awards
have a greater say in deciding: given by the foreign arbitral awards under grounds found in the
1. the law to be applied; Convention on the Recognition and Enforcement of Foreign Arbitral
2. composition of the arbitral tribunal. Award which are the following:

• Three (3) types of arbitral agreements: 1. The agreement to arbitrate was not valid under applicable law;

1. Arbitration Clause 2. The party against which the award was rendered did not receive
• Incorporated as part of the treaty. proper notice of the proceedings or was otherwise not afforded an
• Commonly found in commercial treaties. opportunity to present its case;

2. Treaties whose sole function is to establish methods for the 3. The award deals with matters outside the terms of the agreement
arbitration disputes to arbitrate;
• e.g. The Hague Convention for the Pacific Settlement
of Disputes 4. The constitution of the arbitral tribunal was contrary to the
agreement of the parties or to the law of the state where the
3. Ad-ho Arbitral Agreements arbitration took place; or
• e.g. The Agreement for the settlement of claims
between the US and Iran. 5. The award has not yet become binding on the parties, or has been
suspended, or set aside by a competent court in the state where it
2.2 Arbitral Awards was made.
• Arbitral tribunals apply international law, unless the parties specify that some
other law should be applied.
 Another grounds where domestic courts may refuse to recognize
arbitral awards:
6. The subject matter of the controversy is not capable of settlement
by arbitration; or
7. Recognition or enforcement would be contrary to public policy.
3. Judicial Method - Page 271 of Bernas
• The UN’s principal judicial organ is the International Court of Justice (ICJ), which is
the successor to the Permanent Court of International Justice, established by the
League of Nations.
• ICJ came into being in 1945, through the Statute of the Court, wherein all parties of
the UN are ipso facto parties to the Statute of the International Court of Justice.
• 2. The Court may at any time form a chamber for dealing with a particular
• However, being a party to the Statute does not mean acceptance to the jurisdiction
of the Court. It simply means that the State may accept the jurisdiction of the court.
• ICJ is only open to members states. Hence, only states may be parties in the Court.
• The cardinal rule in international courts is that, states cannot be compelled to submit
disputes to international adjudication, unless they have consented to it either before
a dispute has arisen or thereafter.
3.1 Composition of the Court
Article 2
The Court shall be composed of:
(a) a body of independent judges,
(b) elected regardless of their nationality from among persons of
high moral character,
(c) who possess the qualifications required in their respective
countries for appointment to the highest judicial offices, or are
jurisconsults of recognized competence in international law.
Article 3
1. The Court shall consist of fifteen members, no two of whom may be
nationals of the same state.
2. A person who for the purposes of membership in the Court could be
regarded as a national of more than one state shall be deemed to be a
national of the one in which he ordinarily exercises civil and political
rights.
Article 26
1. The Court may from time to time form one or more chambers,
composed of three or more judges as the Court may determine, for
dealing with particular categories of cases; for example, labour cases and
cases relating to transit and communications.
case. The number of judges to constitute such a chamber shall be
determined by the Court with the approval of the parties.
3. Cases shall be heard and determined by the chambers provided for
in this article if the parties so request.
Article 27
A judgment given by any of the chambers provided for in Articles 26 and
29 shall be considered as rendered by the Court.
Article 31
1. Judges of the nationality of each of the parties shall retain their right
to sit in the case before the Court.
2. If the Court includes upon the Bench a judge of the nationality of one
of the parties, any other party may choose a person to sit as judge. Such
person shall be chosen preferably from among those persons who have
been nominated as candidates as provided in Articles 4 and 5.
3. If the Court includes upon the Bench no judge of the nationality of
the parties, each of these parties may proceed to choose a judge as
provided in paragraph 2 of this Article.
 4. The provisions of this Article shall apply to the case of Articles 26 and
29. In such cases, the President shall request one or, if necessary, two
of the members of the Court forming the chamber to give place to the
members of the Court of the nationality of the parties concerned, and,
failing such, or if they are unable to be present, to the judges specially
chosen by the parties.
5. Should there be several parties in the same interest, they shall, for
the purpose of the preceding provisions, be reckoned as one party only.
Any doubt upon this point shall be settled by the decision of the Court.
6. Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article
shall fulfill the conditions required by Articles 2, 17 (paragraph 2), 20,
and 24 of the present Statute. They shall take part in the decision on
terms of complete equality with their colleagues.
3.2 Jurisdiction of the ICJ: Contentious Jurisdiction
• The ICJ exercises two types of jurisdiction, which are:
1. Contentious jurisdiction; and
2. Advisory Jurisdiction.
3.2.1 Principle Rules on Contentious Jurisdiction (Art. 36)
Article 36
1. The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in
force.
2. The states parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and without
special agreement, in relation to any other state accepting the
same obligation, the jurisdiction of the Court in all legal disputes
concerning (TIE-NE):
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established,
would constitute a breach of an international
obligation;
d. the nature or extent of the reparation to be made
for the breach of an international obligation.
3. The declarations referred to above may be made
unconditionally or on condition of reciprocity on the part of
several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-
General of the United Nations, who shall transmit copies thereof
to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and which are still in
force shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of the
International Court of Justice for the period which they still have
to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of the
Court.
 Note: Given this, Article 36 provides that, in summary:
• Jurisdiction of the ICJ is applicable only to disputes between
the states and disputes are settled by international law, and
not by domestic law.
• But the ICJ, has jurisdiction only when a case has been
referred to it by the parties.
Three (3) ways through which the States may accept jurisdiction of the
court:
1. Ad-hoc basis
• Happens when one party applies unilaterally to the Court,
and this application is followed by consent of the other
State.
2. When parties adhere to a treaty which accepts the jurisdiction of
the court on matters of interpretation or application of the treaty.
3. Acceptance of Jurisdiction, which takes place by unilateral
declaration that recognition of jurisdiction in relation to any other
state accepting the same jurisdiction in all legal disputes.
• This creates the optional system of submitting to the
jurisdiction of the Court.
• The said optional system is operative only for states that
“at any time declare that they recognize as compulsory ipso
facto and without special agreement, in relation to any
other state accepting the same obligation.
3.2.1 US v. Bulgaria (Aerial Incidence Case) - Page 275 of Bernas
3.2. 2 Nicaragua v. US - Page 276 of Bernas
3.2. 3 Case Concerning East Timor (Portugal v. Australia) - Page 278 of
Bernas
3.3 Provisional Measures
Article 41
1. The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought to be
taken to preserve the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall
forthwith be given to the parties and to the Security Council.
3.3 Nicaragua v. US
4. Intervention - Page 287 of Bernas
Article 62
l. Should a state consider that it has an interest of a legal nature
which may be affected by the decision in the case, it may submit a
request to the Court to be permitted to intervene.
2 It shall be for the Court to decide upon this request.
Article 63
1. Whenever the construction of a convention to which states other
than those concerned in the case are parties is in question, the
Registrar shall notify all such states forthwith.
2. Every state so notified has the right to intervene in the proceedings;
but if it uses this right, the construction given by the judgment will be
equally binding upon it.
4. El Salvador v. Honduras (Nicaragua v. Honduras) - Page 288 of
Bernas
5. Obligation to comply with decisions - Page 291 of Bernas
Article 59
The decision of the Court has no binding force except between the
parties and in respect of that particular case.
Article 60
The judgment is final and without appeal. In the event of dispute as
to the meaning or scope of the judgment, the Court shall construe it
upon the request of any party.
Article 61
1. An application for revision of a judgment may be made only when
it is based upon the discovery of some fact of such a nature as to be
a decisive factor, which fact was, when the judgment was given,
unknown to the Court and also to the party claiming revision, always
provided that such ignorance was not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the
Court expressly recording the existence of the new fact, recognizing
that it has such a character as to lay the case open to revision, and
declaring the application admissible on this ground.
3. The Court may require previous compliance with the terms of the
judgment before it admits proceedings in revision.
6. Advisory jurisdiction of the International Court of Justice - Page 292 of Bernas
4. The application for revision must be made at latest within six
months of the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years
from the date of the judgment.
Article 94 (UN Charter)
1.Each Member of the United Nations undertakes to comply with the
decision of the International Court of Justice in any case to which it is
a party.
2. If any party to a case fails to perform the obligations incumbent
upon it under a judgment rendered by the Court, the other party may
have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be
taken to give effect to the judgment.
Note:
• IJC Judgments are binding on the parties (Article 59) and are
deemed “Final and without Appeal”
• Enforcement is governed by Article 94 of the UN Charter.
Member states must comply with the judgment.
• If a party does not comply, the aggrieved party may appeal
to the UN Security Council “which may, if it deems necessary,
make recommendations or decide upon measures to be
taken to give effect to the judgement.
• This may give rise to enforcement measures, which, however,
is subject to the veto powers of the permanent members.
• But the winning state might make use of alternative methods
of enforcement such as diplomatic or economic pressure.
• Article 96 of the UN Charter empowers the General Assembly and the
Security Council to make requests for advisory opinions.
• At the same time, General Assembly may authorize other UN Agencies
to seek advisory opinions.
Note:
• By definition, advisory opinions are non-binding.
• Acceptance or non-acceptance of the advisory opinion is
determined by the internal law of the institution.
 6.1 Other more active International Courts 7.1 Yugoslavia v. U.S. (Case Concerning the Legality of Use of Force)
1. Court of Justice of the European Communities
2. European Court of Human Rights 7.8. The Secretary-General’s Role in Conflict Resolution: Past, Present, and Pure
3. Benelux Court of Justice Conjecture by Thomas M. Franck. (PDF FILE uploaded @ LMS)
4. Inter-American Court of Human Rights
5. International Criminal Court (entered into force only in 2002)

7. The Use of Force - Page 295 of Bernas

• The general principle is that:

“International law recognizes the autonomy of individual states and

their right to freedom from coercion, and to the integrity of their
territory.”

• The basic principle is found in Article 2 (4) of the UN Charter:

“All Members shall refrain in their international relations from:

1. the threat or use of force against the

territorial integrity; or

2. the threat or use of force against political

independence of any state; or

3. the threat or use of force in any other manner

inconsistent with the purposes of the United
Nations”

Note:

• The word “war” is a technical term which does not include

some uses of force.

• The prohibition in the Charter therefore, is broader than the

prohibition of war.

• The prohibition of the use of force, however, is not just

conventional law but a customary international law.
 GUIDE QUESTIONS - ASSIGN. SHEET 6 (c/o Grimares)
What are straights used for international navigation? (See Art. 34 of the UNCLOS)
• Article 34. Legal status of waters forming straits used for international navigation
1. The regime of passage through straits used for international navigation
established in this Part shall not in other respects affect the legal status of the
waters forming such straits or the exercise by the States bordering the straits
of their sovereignty or jurisdiction over such waters and their air space, bed
and subsoil.
2. The sovereignty or jurisdiction of the States bordering the straits is exercised
subject to this Part and to other rules of international law.
Can aliens be excluded by a State from its territory?
Yes. Every state has the right, as inherent in sovereignty and essential to its own security
and existence, to determine in what cases and under what conditions foreigners may be
admitted to its territory. For self-preservation or public interest.
Can a State impose requirements on aliens before it admits them?
Yes, Once admitted, the state has the duty to treaty them justly, in accordance with the law
of nations.
Once an alien is admitted by a State, does he or she possess rights in the foreign territory?
Yes, but only limited by the requirements imposed by the state.
• the foreigner may not enjoy the right to vote, to run for public office, to exploit natural
resources or to engage in certain businesses regarded as vital to the interests of the
local state
Is there an international standard of justice?
Yes, but it is a bit controversial. The standard of the reasonable state, as referring to the
ordinary norms of official conduct observed in civilized jurisdictions. Standard not satisfied
if the laws of a state are intrinsically unjust.
What is deportation?
• The removal of an alien out of the country, simply because his presence is deemed
inconsistent with the public welfare, and without any punishment being imposed or
contemplated, either under the laws of the country out of which he is sent, or under
those of the country to which he is take
• Different from exclusion (denial of entry to an alien)
• Act of state
• Police measure against undesirable aliens whose continued presence in the country is
found to be injurious to the public good and the domestic tranquility of the people
What is the doctrine of State responsibility?
Under this doctrine, a state may be held responsible for:
• An international delinquency
• Directly or indirectly imputable to it
• Which causes injury to the national of another state
• Liability will attach to the state where its treatment of the alien falls below the
international standard of justice or where it is remiss in according him the
protection or redress that is warranted by the circumstances
• Where the alien can hold the state liable for injuries committed against him
while within its territory
What triggers State responsibility?
When an alien suffers injuries committed against him while within its territory
What is an internationally wrongful act?
There is an internationally wrongful act of a state when:
1. The conduct consisting of an act or omission is attributable to the state
under international law; and
2. The conduct constitutes a breach of an international obligation of that
state.
What is the Act of State doctrine?
Act of state doctrine means that a state should not inquire into the validity of the public acts
of another state done within the territory of the latter.
What is the principle of the exhaustion of local remedies?
• Injured foreigner must first exhaust all available local remedies for the protection or
vindication of his rights
• state must be given an opportunity to do justice in its own regular way and without
unwarranted interference with its sovereignty by other states
• Foreigners must accept the institutions of the state as he finds them.
• EXC: when there are no remedies to exhaust
 • Example: laws are intrinsically defective; there is laxity or arbitrariness in their
enforcement; courts are corrupt; no adequate machinery for the
administration of justice
What is a Calvo clause? Is this valid?
• No. This clause was rejected in the case of North American Dredging Company Claim
(1926) by the Mexico-United States General Claims Commission.
à The right to seek redress is a sovereign prerogative of a state and a private
individual has no right to waive the state’s right.
• Calvo Doctrine: A state is not responsible for the losses incurred by aliens in time of
civil war.
• Calvo Clause: Stipulation by which the alien waives or restricts his right to appeal to
his own state in connection with any claim arising from the contract and agrees to limit
himself to the remedies available under the laws of the local state.
à Clause may be enforced as a lawful condition of the contract.
• Must not be interpreted to deprive the alien’s state of the right to protect or vindicate
his interests in case they are injured in another state as such waiver can legally be
made not by him but by his own state
What is the Porter resolution?
Intervention was permitted if the debtor state refused an offer to arbitrate the creditor’s claim,
or having agreed to arbitrate, prevented agreement on the compromise, or having agreed
thereto, refused to abide by the award of the arbitrator.
What are international disputes? Can all disputes between or among States be categorized as
international disputes?
A dispute in international law is a technical term which means “a disagreement on a point of
law or fact, a conflict of legal views or interests between two persons.”
No. A disagreement does not amount to a dispute if its resolution would have no practical
effect on the relationship between the parties.
What are the pacific modes of settling international disputes? Describe each mode.
Amicable Methods
1. Negotiation
• Generally the first step taken in the settlement of an international dispute
• Discussion undertaken by the parties themselves of their respective claims
and counterclaims with a view to their just and orderly adjustment
• Usually formalized in a treat, or directly through the rectification of the injury
caused to the claimant state
2. Inquiry
• Inquiry is fact-finding done by a designated group of individuals or an
institution. When undertaken with the consent of the parties, it frequently
resolves disputes based solely on questions of fact.
• Investigation of the points in question, on the theory that their elucidation will
contribute to the solution of the differences between the parties
• Clarification by an impartial and conscientious body
• Findings are not conclusive but may exert a strong moral influence in the
settlement of the conflict
3. Good offices
• A third party attempts to bring the disputing states together in order to
enable them to discuss the issues in contention and arrive at an agreement
• Usually employed when the parties are no longer on speaking terms; severed
diplomatic relations or have commenced hostilities
• Ex: Russo-Japanese War terminated through the good offices of President
Roosevelt of the US
4. Mediation
• Mediation involves assistance by third parties who either act as bridge
between parties, who do not meet, or who may sit with the disputants to chair
meetings, suggest solutions, cajole, etc. The mediator must be approved by
both parties.
• Third party does not merely provide the opportunity for the antagonists to
negotiate but also actively participates in their discussions in order to
reconcile their conflicting claims and appease their feelings of resentment
 • Suggestions of the mediator are only persuasive and may be rejected without
offense by the parties
5. Conciliation
• Conciliation is a more formal technique whereby the parties agree to refer
controversies to an individual, a group of individuals or an institution to make
findings of fact and recommendations. As a rule, parties do not agree to be
bound by recommendations. But this clears the air.
• Active participation of a third party in the attempt of the disputants to settle
their conflict
• Recommendations are not binding
• Services of the conciliator are not offered by the third party but solicited by
the parties in dispute
6. Arbitration
• Arbitration is the binding settlement of a dispute on the basis of law by a non-
permanent body designated by the parties. The composition, the jurisdiction
and the rules of procedure to be applied are agreed upon by the parties in a
compromis d’arbitrage. States cannot be required to submit to arbitration
unless there is a previous agreement making arbitration compulsory.
• Arbitral tribunals apply international law unless the parties specify that some
other law should be applied.
• Impartial third party, usually a tribunal created by the parties themselves
under a charter known as the compromis, which will provide for, among
others, the composition of the body and the manner of the selection of its
members, its rules of proceeding and sometimes even the law to be applied,
and the issues of fact or law to be resolved
• Proceedings are essentially judicial
• Award is binding (because there is previous agreement)
7. Judicial settlement
• Binding decisions
• Disputes submitted for adjudication are legal rather than political
• Judicial Tribunal vs. Arbitral Tribunal
Judicial Tribunal Arbitral Tribunal
Pre-existing and permanent body Ad hoc body created and filled by the parties to the
disputes themselves
Jurisdiction is compulsory Submission is voluntary
Law applied is independent of the Law applied is independent of the will of the parties
will of the parties but may be limited by them
8. Resort to regional and international organizations
• May be resorted to by the parties on their own volition or taken by the body
itself at its own instance if allowed by agreement of the members
• Ex: ASEAN
Hostile or Non-Amicable Methods
1. Retorsions
• Any action taken in retaliation where the acts complained of do not constitute
a legal ground of offense but are rather in the nature of unfriendly acts but
indirectly hurtful to other states
• Act of retaliation is unfriendly but not illegal
• May be in kind or of a different nature than the act that provoked it
• Ex: severance of diplomatic or consular relations; suspension of commercial
intercourse; boycott; stoppage of travel to the other state; denunciation of
treaties; imposition of higher tariffs and other trade barriers; currency
restrictions; denial of loans and withdrawal of privileges previously enjoyed;
recognition of a rival government; adverse propaganda
2. Reprisals
• An act of self-help on the part of the uninjured state, responding after an
unsatisfied demand to an act contrary to international law on the part of the
offending state
• Effecting of momentarily suspending relations of the two states the observe of
international law
• Limited by the experience of humanity and rules of good faith
• Illegal if a previous act contrary to international law had not furnished the
reason for them
 • Purpose is to impose on the offending state reparation for the offense or the
return to legality in avoidance of new offenses
• Ex: display of force; embargo; pacific blockade
3. Intervention
Distinguish between the International Court of Justice from the International Criminal Court.
• ICJ - The UN’s principal judicial organ.
• ICC - prosecutes international crimes. Its jurisdiction will be limited to the most serious
international crimes: genocide, crimes against humanity, war crimes, and the crime of
aggression.
• The court is meant to be a court of last resort. It normally must await referral
of a crime either by a state party or by the Security Council. The court is not
allowed to act when the local judicial system is able and willing to prosecute.
Describe the International Court of Justice.
• ICJ is The principal judicial organ of the United Nations and the successor of the
Permanent Court of International Justice of the League of Nations.
• Composition. - 15 Members; no two of whom may be nationals of the same State.
Elected for 9 years and may be re-elected.
• Powers and Functions. - To decide international legal disputes submitted to it by
States in accordance with International Law.
How does the International Court of Justice acquire jurisdiction?
The jurisdiction of the ICJ is between state parties involved in international legal disputes. The
ICJ acquires jurisdiction when:
1. The State parties submit themselves to its jurisdiction
2. Through consent via treaties and conventions
3. Optional Jurisdiction Clause
4. Special Agreement – state parties jointly submit to the ICJ via compromise
5. Forum prorogatum – defendant state after institution of proceeding assents to the
case filed
Can the International Court of Justice render advisory opinions?
Yes, however the following conditions must be present:
1. The advisory opinion must be requested by an organ duly authorized to seek it under
the UN Charter;
2. It must be requested on a legal question;
3. Except in the case of the General Assembly or the Security Council, that question
should be one arising within the scope of the activities of the requesting organ.
Describe the good offices function of the U.N. Secretary-General. Are there other persons
who can exercise this good offices function?
• Good Offices is a method by which a third party attempts to bring the disputing states
together in order to enable them to discuss the issues in contention and arrive at an
agreement.
• If none of the methods succeeds in settling the dispute, or even if they are not
employed, the Sec-Gen may step in (but it is usually SC)
Describe the U.N. Security Council.
• The Security Council has “primary responsibility for the maintenance of international
peace and security.” (Article 24[1]) There are 15 member states, five of them
permanent (China, France, Russia [in place of the former USSR], United Kingdom and
the US). The others are elected for two year terms in accordance with equitable
geographic representation
• Jurisdiction to intervene in:
o All disputes affecting international peace and security
o All disputes which, although coming under the “domestic jurisdiction clause,”
have been submitted to it by the parties for settlement
• Disputes may be brought to it by:
o The UNSC itself on its own motion
o GA
o Sec-Gen
o Any member of the UN
o Any party to the dispute
§ Non-Members must accept in advance the obligations of pacific
settlement under the UN Charter
• Powers of the UNSC if the terms of settlement are rejected by any of the parties
o Preventive action such as complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio and other means of
communication, and severance of diplomatic relations
o Enforcement action such as demonstrations, blockades, and other operations
by air, sea, or land forces of UN members
What are the Chapter VII powers of the U.N. Security Council?
1. To maintain international peace and security in accordance with the principles and
purposes of the United Nations;
2. To investigate any dispute or situation which might lead to international friction;
3. To recommend methods of adjusting such disputes or the terms of settlement;
4. To formulate plans for the establishment of a system to regulate armaments;
5. To determine the existence of a threat to the peace or act of aggression and to
recommend what action to be taken;
6. To call on members to apply economic sanctions and other measures not involving
the use of force to prevent or stop aggression;
7. To take military action against an aggressor;
8. To recommend the admission of new Members;
9. To exercise the trusteeship functions of the United Nations in strategic areas;
10. To recommend to the General Assembly the appointment of the Secretary-General
and, together with the Assembly, to elect the Judges of the International Court of
Justice.

Notes:

Sic utere tuo ut alienaum non laedas - A state should not use its territory that it may be injurious
to others

Hostice principal - any of humanity