ASSIGNMENT SHEET 6 1.

“National Treatment” or “Equality of Treatment”

 Aliens are treated in the same manner as the nationals of the state where they
STATE RESPONSIBILITY (c/o Toledo) reside.
-Pages 223 to 247 of Bernas-  Aliens enjoy the same benefits as local nationals.

INTRODUCTION 2. “Minimum International Standard”

 In traditional international law, individuals are generally considered “objects” and not  However harsh the municipal laws might be against a state’s own citizens,
“subjects” of international law. They possess neither international legal rights which they aliens should be protected by certain minimum standards of humane protection.
could assert on their own.
Denial of Justice - according to Harvard Draft Convention on the Responsibility of
 Whatever wrongs may be committed against them can be redressed only by states or States for Damages:
organizations with international personality.
“Denial of justice exists when there is:
 Hence, individuals can be objects of state v. state litigation. 1. a denial
2. unwarranted delay or obstruction of access to courts
1. Protection and Treatment of Aliens (Page 223 of Bernas) 3. gross deficiency in the administration of judicial or remedial
 No state is obliged to admit aliens into its territory, unless there is a treaty requiring it. This process, 4. failure to provide those guarantees which are
principle is an aspect of sovereignty. generally considered indispensable to the proper
administration of justice, or a manifestly unjust judgment
 However, it is difficult to deny admission to all. Hence, what states generally do is to impose 4. An error of a national court which does not produce
legal standards for admission. manifest injustice is not denial of justice.”

 Once admitted, at least under democratic regimes, aliens may not be expelled without due 2. Exclusion of Aliens
process.  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 perspective of the state of their nationality, aliens are “nationals abroad”. Therefore, from the rest of the international community.
they remain important for the state of their nationality.
 Deportation refers to the removal of an alien out of the country, simply because his presence
 The practice of the proper treatment of aliens is based on this “commonality of interest”. 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
 States protect aliens within their jurisdiction in the expectation that their own nationals will be the country to which he is taken.
properly treated when residing or sojourning abroad.
 Exclusion refers to the denial of entry to an alien
 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”
 There is a well-developed customary law for the protection of aliens. The instrument is 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:

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.
5. Resort to Diplomatic Protection - Cruz
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.
3. International Standard of Justice - Cruz
 Refers to the standard of the reasonable state, that is, as referring to the ordinary norms of
official conduct observed in civilized jurisdictions.
 Doctrine of Equality of Treatment
 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.
 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.”
 2. The attributality of the wrongful act to the State;
e.g. 3. The enforcement of the obligation that arises from the wrongful act.

 Tie of Nationality – required to exist from the time of the injury until the time the Guide is the 2001 Draft of the International Law Commission.
international claim is finally settled. Once the tie is broken, the claim itself is deemed
automatically abated (removed/lessened). 8. Internationally Wrongful Act - Page 227 of Bernas

If, the injured national dies while the claim is under consideration and it should happen Article 1. Responsibility of a State for its internationally wrongful acts
that his hers are not nationals of the claimant state, the claim will lapse. Every internationally wrongful act of a State entails the international
responsibility of that State.

6. Enforcement of Claim (Enforcement Regimes) - Cruz Note: No State can escape this responsibility when once it has committed an act
 An international claim for damages may be resolved through negotiation or, if this fails, which satisfies the requirements of an “internationally wrongful act”
any of the other methods of settling disputes
 In the event that the responsibility of the state is established or acknowledged , the duty to State derives its benefits from the international legal system. Hence, when a state
make reparations will arise. consents to be part of that system, it also accepts corresponding legal obligations.

 Such reparation may take the forms of: Article 2. Elements of an internationally wrongful act of a State
1. Restitution There is an internationally wrongful act of a State when conduct consisting of an action
2. Satisfaction or omission:
3. Compensation (a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.

6. Enforcement of Claim (Enforcement Regimes) - Page 227 of Bernas Note: Article 2 says that the elements of an internationally wrongful act consists
 The International Court of Justice (ICJ), when its jurisdiction is appealed to by states in of a subjective and objective element.
conflict, can resolve issues of violations of the rights of aliens.
Subjective element Objective element
 However, claims may be also settled by ad hoc tribunals established for purpose. -the act must be attributable not to the - is a violation of an international obligation.
e.g. 1. US-Iran Claims Tribunal (established to deal with claims of either party persons or agencies who performed it
arising from the Islamic Revolution but to the state itself. - It may consist of something either:
1. active (action)
2. UN Compensation Commission (established by Security Council in 1991 2. passive (an omission)
to deal with claims arising from Iraq’s invasion of Kuwait)

3. US-Cambodia and US-Vietnam Settlement Agreements.

Article 3. Characterization of an act of a State as internationally wrongful
7. Doctrine of State Responsibility - Page 227 of Bernas The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterization is not affected by the
 The customary law doctrine on the protection of aliens should be seen in relation to the
characterization of the same act as lawful by internal law.
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.
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
 Settled rule held by the states is that, if a state violates a customary rule of international law,
State is not in conformity with what is required of it by that obligation,
or a treaty obligation, it commits an “internationally wrongful act”
regardless of its origin or character.
 Principles that widely accepted and what need to be understood are:
1. Elements of an internationally wrongful act;
 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
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.
13. Expropriation of Alien Property - Page 247 of Bernas
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
 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.
 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.

9.6 Short v. Iran - Page 249 of Bernas What are these principles?
 1962 UN General Assembly Resolution on the Sovereignty over Natural
10. Preliminary Objections - Page 244 of Bernas Resources which states:
 When brought before an international tribunal, the claim of denial of justice may be lost due
to the following: “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
1. Failure to answer some preliminary objections. interests, both domestic and foreign”
-one objection already seen is the lack of nationality link.
 The rule also thus recognizes the power of eminent domain as inherent power of sovereignty.
2. Failure to exhaust national remedies. The rule conforms with the constitutional principles of public use and just compensation. But
-obvious reason of this rule is to protect international courts from being international case law on the subject, generally between developed and developing countries, is
swamped with cases which are better handled locally. not without disputations.

-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 Commission, it

immediately goes to the Commission.

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”
 Note: But if the decision is made to settle disputes, the obligation is to settle them
by peaceful means.

 The peaceful means of settling disputes mentioned in the Charter may be classified into:
(a) Non-judicial methods / Diplomatic Methods [negotiations, enquiry,
mediation, conciliation]
(b) Quasi-judicial methods [arbitration]
(c) Judicial method
1. Non-judicial or diplomatic methods (N-MIC) - Page 268 of Bernas

1.1 Negotiation
 States are generally hesitant to submit their disputes to an adjudicatory body. Hence,
negotiation is the preferred vehicle.

PEACEFUL OR PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES (c/o  The preliminary step to negotiation might be “good offices” when a neutral third party
Toledo) tries to bring 2 disputants together.
-Pages 267 to 294 of Bernas-
 Having been brought together, the usual first step, often required before judicial settlement
INTRODUCTION is “negotiation” which may be carried out by:
 Not every disagreement is a “dispute”
1. diplomatic correspondence
 “Dispute” is a technical term which means “a disagreement on a point of law or fact, a conflict 2. face-to-face dialogue between permanent envoys or
of legal views or interest between 2 persons.” designated negotiators.

 A disagreement does not amount to a dispute, if its resolution would have no practical effect  No particular set of rules for negotiation, but for a negotiated settlement to be legally
on the relationship between the parties. binding, the parties shall agree to it.

 Examples of disputes are: 1.2. Mediation

1. Disagreements over the interpretation of a treaty  Involves assistance by third parties who either act as a bridge between the parties, who do
2. Disagreements about state boundaries not meet, or who may sit with the disputants to chair meetings, suggest solutions, cajole,
3. Disagreements about state responsibility. etc.

 Not every disagreement is a “dispute”  The mediator must be approved by both parties.

 Article 2 (3) of the UN Charter provides: 1.3 Inquiry

All members shall settle their international disputes by peaceful means in such a  Is a fact-finding done by a designated group of individuals or an institution.
manner that international peace, security, and justice, are not endangered.
 When undertaken with the consent of the parties, it frequently resolves disputes based
 Hence, solely on questions of fact.

General Rule: No general obligations to settle disputes. 1.4 Conciliation

 Is a more formal technique whereby the parties agree to refer controversies to an
Exceptions: Except those which according to Article 33 of the UN Charter, might individual, a group of individuals, or an institution to make findings of fact and
endanger peace and security. recommendations.
 3. There was a failure to state the reasons for the awards or a
2. Quasi-judicial method - Page 269 of Bernas serious departure from a fundamental rule of procedure

2.1 Arbitration 4. The undertaking to arbitrate or compromis is a nullity.

 Is the binding settlement of a dispute on the basis of law by a non-permanent body
designated by the parties.  Domestic courts, however, may refuse to give recognition to awards given
by the foreign arbitral awards under grounds found in the Convention on
 What shall be agreed upon by the parties in a compromis d’ arbitrage? the Recognition and Enforcement of Foreign Arbitral Award which are
1. the composition the following:
2. the jurisdiction
3. rules of procedure to be applied 1. The agreement to arbitrate was not valid under applicable law;

 States cannot be required to submit to arbitration, unless there is a previous agreement 2. The party against which the award was rendered did not receive proper
making arbitration compulsory. notice of the proceedings or was otherwise not afforded an opportunity to
present its case;
 What mainly distinguishes arbitration from judicial settlement is that parties have a
greater say in deciding: 3. The award deals with matters outside the terms of the agreement to
1. the law to be applied; arbitrate;
2. composition of the arbitral tribunal.
4. The constitution of the arbitral tribunal was contrary to the agreement of
 Three (3) types of arbitral agreements: the parties or to the law of the state where the arbitration took place; or

1. Arbitration Clause 5. The award has not yet become binding on the parties, or has been
 Incorporated as part of the treaty. suspended, or set aside by a competent court in the state where it was made.
 Commonly found in commercial treaties.

2. Treaties whose sole function is to establish methods for the

arbitration disputes Another grounds where domestic courts may refuse to recognize
 e.g. The Hague Convention for the Pacific Settlement of arbitral awards:
Disputes
6. The subject matter of the controversy is not capable of settlement by
3. Ad-ho Arbitral Agreements arbitration; or
 e.g. The Agreement for the settlement of claims between the
7. Recognition or enforcement would be contrary to public policy.
US and Iran.
3. Judicial Method - Page 271 of Bernas
2.2 Arbitral Awards
 The UN’s principal judicial organ is the International Court of Justice (ICJ), which is the
 Arbitral tribunals apply international law, unless the parties specify that some other
successor to the Permanent Court of International Justice, established by the League of
law should be applied.
Nations.
 Accepted basis/grounds in order for an arbitral decision may be challenged
 ICJ came into being in 1945, through the Statute of the Court, wherein all parties of the UN
(ECS2-N):
are ipso facto parties to the Statute of the International Court of Justice.
1. The arbitral body exceeded its powers 
 However, being a party to the Statute does not mean acceptance to the jurisdiction of the
2. There was corruption on the part of a member of the body 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.
2. The Court may at any time form a chamber for dealing with a particular
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.
3.3 Provisional Measures
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
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.
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.
6. Advisory jurisdiction of the International Court of Justice - Page 292 of Bernas
  Article 96 of the UN Charter empowers the General Assembly and the  The prohibition in the Charter therefore, is broader than the
Security Council to make requests for advisory opinions. prohibition of war.

 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.
 The prohibition of the use of force, however, is not just
conventional law but a customary international law.
7.1 Yugoslavia v. U.S. (Case Concerning the Legality of Use of Force)
7.8. The Secretary-General’s Role in Conflict Resolution: Past, Present, and Pure
Conjecture by Thomas M. Franck. (PDF FILE uploaded @ LMS)

6.1 Other more active International Courts

1. Court of Justice of the European Communities
2. European Court of Human Rights
3. Benelux Court of Justice
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.
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?  1. The conduct consisting of an act or omission is attributable to the state under
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?  What is the Act of State doctrine?
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?  What is the principle of the exhaustion of local remedies?
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:
international law; and
2. The conduct constitutes a breach of an international obligation of that state.
 
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.
 
 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.
 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.
 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?  but also actively participates in their discussions in order to reconcile their
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
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  Purpose is to impose on the offending state reparation for the offense or the return to
 Binding decisions legality in avoidance of new offenses
 Disputes submitted for adjudication are legal rather than political  Ex: display of force; embargo; pacific blockade
 Judicial Tribunal vs. Arbitral Tribunal
3. Intervention

Judicial Tribunal
Pre-existing and permanent body
Jurisdiction is compulsory
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
Arbitral Tribunal
international crimes: genocide, crimes against humanity, war crimes, and the crime of
Ad hoc body created and filled by the parties to the aggression.
disputes themselves  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
Submission is voluntary act when the local judicial system is able and willing to prosecute.

Law applied is independent of the will Law applied is independent of the will of the parties but
of the parties 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
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 Notes:
Sec-Gen may step in (but it is usually SC)
Sic utere tuo ut alienaum non laedas - A state should not use its territory that it may be injurious to
Describe the U.N. Security Council.  others 
 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, Hostice principal - any of humanity
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.